R. v. Jeremias, 2010 ONCJ 738

Information No. 08-909 Citation: R. v. Jeremias , 2010 ONCJ 738 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. IDALINO JEREMIAS R E A S O N S F O R J U D G M E N T BEFORE THE HONOURABLE JUSTICE P. KOWALYSHYN on December 22, 2010, at CHATHAM, Ontario .

APPEARANCES : F. Creed Counsel for the Crown G. Mueller-Wilm Counsel for Idalino Jeremias KOWALYSHYN, J. O.C.J.: (Orally) Introduction Idalino Jeremias is charged that on or about the 27 th day of December in the year 2007, that he operated a motor vehicle having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to

section 253 (

b) of the Criminal Code . Mr. Jeremias entered a plea of not guilty to the charge, and a trial took place on August 24 th and November 9 th , 2009 and concluded on August 16 th , 2010 . There are really three issues in this case. One was the initial stopping of Mr. Jeremias’ motor vehicle arbitrary? Two, were the breathalyzer samples taken too soon to each other? Three, was there a

section 8 and/or

section 9 Charter breach, and if so, should the breath test results be excluded pursuant to section 24(2) of the Charter? Background The factual background is as follows. Mr. Jeremias was operating his Ford F150 truck late on the evening of December 27 th , 2007 in Chatham . He was leaving the Harvey ’s parking lot on St. Clair Street where he made a left turn onto Thames Street , where he was observed by Constable Lauzon of the Chatham-Kent Police Service.

Constable Lauzon had received a dispatch in relation to a possible drinking driver at 10:24 p.m. instructing him to go to the Harvey ’s restaurant in Chatham . He arrived there at approximately 10:26 p.m. Constable Lauzon testified that he followed Mr. Jeremias in his marked vehicle. It was his evidence that Mr. Jeremias did not make a complete stop at the stop sign at Thames and Fifth Street , and that in effect it was a rolling stop, having slowed to approximately five kilometres per hour. Mr.

Jeremias then made a very wide right hand turn onto Fifth Street , and a portion of his vehicle actually entered into the northbound lane on Fifth Street. Mr. Jeremias was travelling south at the time. He quickly corrected his vehicle and put himself back into the proper lane.

Constable Lauzon then observed Mr. Jeremias to make a left on King Street after coming to a complete stop at the lights. At this point Mr. Jeremias actually turned into the left bound turn lane of what would otherwise have been the westbound turn lane on that street. He quickly moved his vehicle back into his lane and travelled eastbound. During the drive he touched the center line approximately three times with his vehicle but he did not cross over it. Constable Lauzon activated his emergency lights and gave evidence that Mr.

Jeremias continued for approximately 200 meters before he pulled his vehicle to a complete stop, notwithstanding the fact that there was ample room to stop sooner. Constable Lauzon approached the Jeremias vehicle where he found Mr. Jeremias to be very co-operative. Mr. Jeremias had provided him with all of the documents that were requested - ownership, insurance and license. Constable Lauzon observed an odour of alcohol on Mr. Jeremias’ breath. He confirmed that Mr. Jeremias showed no other signs of impairment at that time and didn’t present as if he was impaired. He described the speech of Mr.

Jeremias as being very clear. He also indicated that Mr. Jeremias was not unsteady on his feet. Mr. Jeremias also passed a finger to nose test without difficulty. A roadside demand was given at 10:34 p.m. based on the suspicion that Mr. Jeremias had been drinking. Mr. Jeremias was able to remove the plastic mouth piece and insert it into the Alcotest 7410GLC device. Four attempts were provided before Mr. Jeremias was successful in providing a sample on the fifth attempt. This registered a fail. The prior four attempts resulted in an “error” message. In cross-examination Constable Lauzon advised that although Mr.

Jeremias had with him in his car a passenger, a Danny Prier who was clearly under the influence of alcohol and who also smelled of alcohol, that he smelled alcohol independently on Mr. Jeremias. With respect to the messages on the Alcotest device, Constable Lauzon explained his understanding of the messages which were displayed that evening. He said at page nine of the transcript, and this is at approximately line 13, “On the Alcotest you receive a reading of either an ‘A’ for, would be a warning.

If you receive an ‘F’ would be a fail and you receive an ‘E’ if it didn’t receive the proper, I’m going to assume the proper amount of air flow into the device so that it can make the proper analysis.” Question, “And what is your understanding of what an ‘F’ or fail means?” Answer, “It means

that he’d be over the legal limit which would be over 80 milligrams of alcohol in 100 millilitres of blood.” That is the end of that quotation. Some considerable discussion took place under cross-examination with respect to Constable Lauzon’s training on the Alcotest, his knowledge as to how the machine operated, and specifically his understanding of how the machine operated and the readings it registered in relation to Mr. Jeremias. This evidence lies at the base of the Charter challenge raised by the defence. Specifically, Constable Lauzon testified:

(1) He had only had basic training on the Alcotest. Given that Constable Lauzon had been an officer for almost eight years on the date he gave evidence, I am going to assume that his basic training took place at least that length of time ago. It occurred while he was in Brantford .

(2) He confirmed that he received no re-training on the device following his move from the Brantford Police Force to the Chatham-Kent Police Service.

(3) He is not a qualified breathalyzer technician.

(4) The extent of his knowledge when the Alcotest registers an error message, in other words an “E” is, and I am quoting again, “ I just know that when it registers an “E”, that it didn’t register properly and that you have to redo the test when it allows you to do so.” Constable Lauzon agreed that if the breath sample didn’t register properly, then he “imagined” that there could be different reasons why.

(5) As it relates to the samples provided by Mr. Jeremias, namely the four error messages, it appeared to Constable Lauzon that the samples weren’t “full”. He could not say why the “E” occurred repeatedly. When I say, the samples, I am talking about the breath. He also could not recall the number accompanying the error message.

(6) That notwithstanding the forgoing point, Constable Lauzon made no reference in his notes that Mr. Jeremias’ breath samples or efforts were deficient. He simply noted it took five times to register something other than an “E” or error.

(7) It was only upon receiving the “F” or failure on the alcotest that Constable Lauzon formed reasonable and probable grounds for arresting Mr. Jeremias for an “over 80” offence. That is to say that the “failure” result together with the driving observations and odour of alcohol on Mr. Jeremias’ breath cumulatively gave him his reasonable and probable grounds.

Mr. Jeremias was then placed under arrest at 10:41 p.m. He was read his rights to counsel at 10:45 p.m. , and he was read a breathalyzer demand at 10:46 p.m. Mr. Jeremias was then placed in the back of a cruiser and taken to Chatham-Kent Police Service where he arrived at 10:51 p.m. He was taken to a booking area where he sat on a bench. The booking area is situated in a cell block at the police station and includes a cell, a washroom, a breath tech room and an interview room. Present in the booking area was Mr. Jeremias and three police officers, Constables, Currie, Lauzon, and Staff Sergeant Crane.

At either 11:07 p.m. or 11:10 p.m. Mr. Jeremias attempted to contact a lawyer but was unsuccessful. Constable Lauzon then called duty counsel for Mr. Jeremias at 11:10 p.m. and then again at 11:44 p.m. because he had not received a call back. Mr. Jeremias spoke with duty counsel at 11:58 p.m. Constable Lauzon had in the meanwhile, turned Mr. Jeremias over to Constable Currie, a qualified breathalyzer technician. This occurred at 11:23 p.m. The reasons provided to Constable Currie by Constable Lauzon as providing the grounds for the breathalyzer demand were the rolling stop, the wide turn, the failure by Mr.

Jeremias to stop immediately once Constable Lauzon activated his roof lights, the odour of alcohol emanating from his breath, and Mr. Jeremias’ failure at the roadside on the Alcotest. Constable Currie read the breath demand to Mr. Jeremias at 11:25 p.m. Constable Currie completed breath tests on Mr. Jeremias at 12:02 a.m. and at 12:21 a.m. The results were 124 milligrams and 114 milligrams of alcohol per 100 millilitres of blood respectively. A great deal of time was spent on the rights that were read to the accused and the caution provided to him by Constable Currie, as well as statements made by Mr.

Jeremias to Constable Currie. A voir dire was held and a ruling made by me on August 24 th , that the question of voluntariness as it related to the statements by Mr. Jeremias had been satisfied. The trial continued following the voir dire . Constable Lauzon questioned Mr. Jeremias and elicited the following information. Mr. Jeremias admitted or claimed, “I drank a beer yes, a few at the Portuguese Club before I go to Danny’s.” Also elicited was the fact that Mr. Jeremias started drinking at approximately 6:30 p.m. and he last had a drink at 9:45 p.m.

The last drink was a beer and it took him approximately 15 to 20 minutes to consume it. The evidence given by Mr. Jeremias on consumption was consistent to some extent with what Constable Currie testified to. Mr. Jeremias said he had a bottle of beer, Blue Light, following a brandy and a coffee at the Portuguese Club.

Constable Currie, being a qualified breathalyzer technician was familiar with the operation of the Alcotest 7410GLC. He gave evidence in relation to the operation of the device. He said that an error message or an “E” when displayed on the device is followed by a number. Each number has a special significance. “E0” for example, means insufficient sample. He also added that there are approximately five numbers other than a zero which have nothing to do with the person providing the sample.

He stated that the Alcotest 7410GLC is calibrated every two weeks by Chatham-Kent Police Service and he believed that if it wasn’t calibrated every two weeks that in some cases it would give an accurate reading, and in some cases it wouldn’t. He indicated that the instrument would need to be calibrated to get an accurate reading on a “fail”. Constable Lauzon gave evidence on the issue of calibration and advised that it had been calibrated three days prior. It should be noted that Constable Currie was not qualified to give expert evidence as to the inner working or machinations of the Alcotest 7410GLC.

However, he was clearly comfortable in giving the evidence which he did. Given that he was not qualified as an expert, Constable Currie’s evidence is not entitled to any additional or significant weight. The court does however find his evidence to be helpful and consistent with the only expert evidence that it received on this issue, that being the evidence of Dr. Michael Ward, a qualified toxicologist who has given expert testimony countless numbers of times in a number of jurisdictions. No issue was taken as to Dr.

Ward’s qualifications to give expert evidence on the Alcotest 7410GLC or his findings with respect to, or calculations with respect to the amount of alcohol consumed by Mr. Jeremias. Dr. Ward gave evidence in two distinct areas. First of all in, what would be considered evidence under a “ Carter” d efence, he testified that Mr. Jeremias would have had a theoretical maximum of blood alcohol concentration at 10:26 p.m. of between 22 and 37 milligrams of alcohol in 100 millilitres of blood. The second area where Dr. Ward gave evidence was in relation to the Alcotest 7410GLC and the error messages which it produces.

Dr. Ward’s evidence in this area was not challenged in any way. In fact, as previously indicated his evidence is buttressed to some extent by the evidence of Constable Currie and to a much lesser extent by the evidence of Constable Lauzon. Dr. Ward testified that the Alcotest 7410GLC has seven different error messages that can be displayed on the face of the instrument, two of which weren’t applicable in the Jeremias situation because they would only show up during calibration. He discussed the other five error messages.

He said at pages 22 to 24, and I am going to be again quoting from approximately line 17 on page 22,

“An ‘E0’ error message shows up if the person providing the sample has not blown long enough or a sufficient strength to meet the requirements of the instrument. The instrument keeps track of flow rate, it keeps track of volume and it, has a, a timing element associated with the acquisition of the sample.” Dr. Ward indicated that if this message occurred, the only remedial action that would be necessary would be to re-test the individual. Quoting directly from Dr.

Ward’s continued testimony at the bottom of page 22, he says at line 24, “Another error message that could show up at the roadside is an ‘E1’ which indicates a sensor fault. So the part of the instrument that’s actually measuring the breath alcohol concentration of the individual has become worn or has become damaged in some capacity and is no longer accurately measuring the breath alcohol concentration. If an E1 message comes up, what Constable Lauzon should have done, had he checked to see what the error message actually was, is he should have switched the instrument off and then turned the instrument back on.

If E1 had shown up again, that indicates the instrument should be serviced because it is no longer reliable. If an E3 error message showed up that indicates the calibration data is not valid and also that the sensor may be worn. In that particular case, had the error message shown up and the calibration value is no longer valid, the instrument should be re-calibrated. If it still does not retain its calibration, then the instrument should be sent for servicing.

Another error message that could show up at the roadside would be E5, which indicates a fault in the sampling system. The proper action to take would be to repeat the measurement and if the E5 error message shows up again then the instrument should be removed from service and sent to be diagnosed and repaired. And the final error message that might show up is E6, which is a catch-all, which just means some sort of instrument malfunction. If that error message had shown up then the instrument should be sent in for servicing again.

So those are the five error messages that could conceivably show up at the roadside.” Dr. Ward was then asked toward the bottom of page 23 if one of those error messages had shown up for Constable Lauzon, would it be possible afterwards to get an “F” or a fail reading. He answered at line 26, “If the sensor is worn or moving in and out of calibration, certainly.” Now in cross-examination, Dr. Ward testified that he had actually had cases where he remembered distinctly where the “E5” error message kept coming up, and coming up, and coming up.

In that case the officer had recorded what the error message was and he simply had the accused continue to attempt to provide samples until he got a “fail”. He said quite clearly that there was something wrong with the instrument and it shouldn’t have been used in that particular case. He added on page 24 at approximately line 21, “...If you get any of the other error messages some of them once, then if you don’t get it again you can continue because it’s probably just a, a minor electrical malfunction or a short circuit or something.

But if it repeats then the instrument should be removed from service and should be, ah, ah, taken and basically fixed because there is something wrong with it.”

That is the end of my referring to Dr. Ward’s direct testimony. With respect to the calculations by Dr. Ward on the evidence supporting the Carter Defence , Dr. Ward acknowledged to the Crown in cross-examination that either the Intoxilyzer was wrong or the consumption information he received was wrong. Mr. Jeremias gave two slightly different versions of the amount he consumed and what he had in fact consumed. His evidence in that regard is not persuasive.

No evidence was offered which would suggest that the device was not properly functioning on December 27 th , 2007, and I am talking about the Intoxilyzer, or that Constable Currie was not operating it properly. And therefore, the defence if it was being advanced on this ground, fails. I note that no submissions were made by counsel in relation to this defence, but because it was raised during the evidence, I have addressed it here in my reasons. The real issue relates to the Charter challenges under sections 8 and 9. I will now address the issues which I identified at the outset of my reasons.

Was the Initial Stopping of the Jeremias Motor Vehicle Arbitrary? The Charter application filed by the defence concedes that the initial stopping of Mr. Jeremias’ motor vehicle was not arbitrary but argues that the subsequent arrest and detention was. However, in her closing submissions Ms. Mueller-Wilm argued that the initial stop was arbitrary. In relation to that argument the evidence is clear that Mr. Jeremias was stopped for good reason.

Constable Lauzon had received a dispatch about a driver who was possibly under the influence of alcohol, attended the location where directed, observed the suspect vehicle, followed it for a distance and made observations about the pattern of driving by Mr. Jeremias outlined elsewhere in this decision. The defence challenge on this ground, therefore must fail. The Time Between Samples The next issue is the time between samples. Defence counsel appears to argue that the time between the breath samples was too short. Constable Currie completed the breathalyzer testing on Mr. Jeremias at 12:02 and 12:21 a.m.

He said the first sample took eight to nine seconds to complete. The second sample took ten to eleven seconds to complete. The Court of Appeal in Regina vs. Taylor (1983), 1983 CanLII 3594 (ON CA) , 7 C.C.C.(3d)293 at 302 has stated that the time between samples must be at least equal to fifteen minutes. The time here was at least 15 minutes between samples and accordingly this issue is not decided in favour of the accused. The

Section 8 and 9 Charter Issues I now will deal with the

section 8 and

section 9 Charter arguments. The defence submits that the arresting officer did not have reasonable and probable grounds to arrest Mr. Jeremias on an “over 80” charge, and make an Intoxilyzer demand to provide breath samples. It is submitted that the breath sample results were obtained by means of an unreasonable search and seizure contrary to

section 8 of the Charter . It is also argued that there was an arbitrary detainment of Mr. Jeremias contrary to

section 9 . It is further argued that after applying the factors set out in Regina vs. Grant 2009 SCC 32 (CanLII) , [2009] 2 S.C.R. 353 , that the court should exclude the breath test results pursuant to section 24(2) of the Charter .

The Crown submits that Constable Lauzon had sufficient grounds to arrest Mr. Jeremias. Even if there was a

section 8 or 9 violation, it is submitted that the test results should not be excluded. It is submitted that the alleged breach or breaches were not serious, the Intoxilyzer testing was minimally intrusive and that the results constitute reliable evidence that should be considered by the court. It is argued that admitting the evidence would not bring the administration of justice into disrepute. The Crown submits that there was no arbitrary detainment of Mr. Jeremias either before or after he completed the roadside testing.

The court must first determine whether Constable Lauzon had reasonable grounds to arrest Mr. Jeremias for the over 80 charge. Justice Lipson in the recent decision of Regina vs. Khan , [2010] O.J. No. 3861 reviewed at paragraph 11, the relevant legal principles as recently summarized by Justice Durno who was sitting ad-hoc in the Ontario Court of Appeal decision of Regina vs. Bush , 2010 ONCA 554 .

At paragraphs 36 to 40, Justice Durno said: “Drinking and driving prosecutions involve a continuum of findings and beginning with a reasonable suspicion the driver has alcohol in his or her body, the standard for an Approved Screening Device (roadside) demand pursuant to s. 254(2) of the Criminal Code. At the other end of the continuum, is the standard for conviction, proof beyond a reasonable doubt that the operator’s ability to operate a motor vehicle was impaired by the consumption of alcohol or that the driver’s blood alcohol concentration was over the legal limit.

Between suspicion and proof beyond a reasonable doubt lies reasonable and probable grounds. Section 254(3) of the Criminal Code authorizes peace officers to demand Intoxilyzer breath samples provided the officer, has ‘ reasonable and probable grounds to believe that a person is committing or at anytime within the preceding three hours has committed’ the offence of impaired operation or driving ‘over 80’ (emphasis

added). Reasonable and probable grounds does not amount to proof beyond a reasonable doubt or to a prima face case.” Reference is made there to the Regina vs. Censoni [2001] O.J. No. 5189 and Regina vs. Shepherd 2009 SCC 35 decisions. “Reasonable and probable grounds have both a subjective and an objective component. The subjective component requires the officer to have an honest belief the suspect committed the offence: R. vs. Bernshaw, [ 1995] , 1 S.C.R. 254 at para 51 [a decision of the Supreme Court of Canada .] “The officer’s belief must be supported by objective facts” and reference there is made to R. vs.

Berlinski, [2001] O.J. No. 3775 a decision of the Ontario Court of Appeal at paragraph three. “The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest.” Reference there is made to R. vs. Storrey , 1990 CanLII 125 (SCC) , [1990] 1 S.C.R. 241 , a 1990 decision of the Supreme Court of Canada at page 250. “In Storrey v.

The Queen at 323, Cory J. articulated the overarching context of drinking/driving investigations - the need for reasonable balance between the individual’s rights to liberty and the need for society to be protected from the menace of impaired drivers. Every year, drunk driving leaves a terrible trail of death, injury and

destruction.” Reference there is made to the Queen vs. Bernshaw at 204, and Regina vs. Saunders , (1998) 1988 CanLII 197 (ON CA) , 41 C.C.C. (3d) 532 , a decision of the Ontario Court of Appeal. “ In Storrey , [Justice Cory] addressed the importance of the requirement that officers have reasonable grounds as follows at p. 249 - 250: ‘The importance of this requirement to citizens of a democracy is self evident. Yet society also needs protection from crime.

This need requires that there be a reasonable balance achieved between the individual’s right to liberty and the need for society to be protected.’ The determination of whether reasonable and probable grounds exist is a fact based exercise dependant on all the circumstances in a case. Additionally, the court should remain mindful that police officers especially in drinking and driving cases are required to make quick and preferably informed decisions as to whether or not they have reasonable and probable grounds to arrest. I have already outlined the pattern of driving by Mr.

Jeremias as observed by Constable Lauzon, as well as his observations of Mr. Jeremias at the scene, and the odour of alcohol on his breath. At this point, and with this information in hand, Constable Lauzon admitted that he did not believe that he had sufficient grounds to lay a charge of “over 80”. The Alcotest results were therefore of critical importance. It was only when and as a result of receiving the “fail” on the Alcotest that Constable Lauzon believed he had reasonable and probable grounds to arrest Mr. Jeremias for an offence of “over 80”.

Although it was the cumulative effect of all of the above factors, which gave rise to the arrest and the breathalyzer demand the fail result was the lynch pin. It was the key element. To summarize defence counsel’s argument, “but for” the Alcotest results, no reasonable and probable grounds would have existed to make a breathalyzer demand on Mr. Jeremias.

A serious issue exists with respect to the reliability of the Alcotest results for reasons previously stated. Constable Lauzon did not, for whatever reason operate, or know how to properly operate the Alcotest device. I am not referring to him knowing the intricacies, but rather the general operation of the device. He received error messages four different times, but didn’t recall which number accompanied the error message. This is significant because as Dr. Ward testified, it was highly possible that the device was not in fact functioning properly when it was used on Mr. Jeremias.

Crown counsel has argued that for the purposes of a valid demand the Crown does not have to prove the screening device was functioning properly at the time. There is certainly ample case authority for that proposition. We are dealing here however, with something different. As the Court of Appeal in Regina vs. Topaltsis , 2006 CanLII 26570 (ON CA) , [2006] O.J. No. 3181 stated , objective grounds for a belief that the screening device is in proper working order is not to be confused with the separate issue of whether in fact it was in proper working order”. Additionally, the Court of Appeal in Regina vs.

Paradisi, 1998 CanLII 1989 (ON CA) , [1998] O.J. No. 2336 ) in citing the Supreme Court of Canada in Regina vs. Bernshaw , has noted that the onus is on the accused to lead evidence at trial that there was a “high degree of unreliability” with respect to the screening device at the time it was administered to the accused. I find that this is precisely what Mr. Jeremias has done through the expert evidence of Dr. Ward and additionally through the evidence of Constables Currie and Lauzon. In this case we have reliable, unchallenged evidence that the Alcotest device might not have been properly working at the time.

The basis for this is the four error messages received prior to the “fail” being registered. The real question in this case is therefore, did Constable Lauzon have reasonable and probable grounds to believe that the screening device, the Alcotest 7410GLC was in good working order, not whether in fact it was in good working order. Assistance in this regard comes again from Justice Durno in the Superior Court of Justice Decision of Regina vs. Mastromartino, 2004 CanLII 28770 (ON SC) , [2004] O.J. No. 1435 .

In that case Justice Durno was interpreting the decisions of the Supreme Court of Canada in Bernshaw and the Ontario Court of Appeal in Regina vs. Einarson (2004) 2004 CanLII 19570 (ON CA) , 70 O.R. 3d 286 . In Regina vs. Einarson , Justice Doherty said at paragraph 14, “If the officer does not, or reasonably should

not, rely on the accuracy of the test results, it cannot assist in determining whether there are reasonable and probable grounds to arrest.” At paragraph 34, Justice Durno said, “The reasonable and probable standard must reflect the particular officer’s assessment tested against the litmus of reasonableness.” This is not a case where it can be argued that Constable Lauzon had a reasonable belief that the Approved Screening Device was in proper working order. The device produced an error message four times and Constable Lauzon didn’t know why, although he had a suspicion.

His suspicion reflected only one of what would appear to be five possible reasons. Dr. Ward gave expert evidence that for four of the five possible error messages that could have been displayed on Constable Lauzon’s Alcotest device, it would be necessary (upon further steps being taken at the scene) to remove the device from service and send it in for repairs. More concerning is the fact that it would still be possible for the machine to register a “fail”. One would have expected that even with just basic training, Constable Lauzon would have been aware of these possibilities, even if only in a general sense.

He also should have known what the appropriate next steps were depending on the number which accompanied the error message. Regrettably, Constable Lauzon could not even recall which number or numbers came up along with the four error messages. The only thing which Constable Lauzon knew to do, or believed he should do, was to re-test Mr. Jeremias. As I have already indicated, Constable Lauzon acknowledged that there were other reasons for the Alcotest registering a fail beyond a poor effort or sample of breath being provided by the person blowing into the device. He didn’t know what these were.

In my view, I find that Constable Lauzon for whatever reason, really had no idea other than a very limited one as to how the device worked or how to use it. He therefore cannot be said to have known how to use it properly. Therefore, applying the “litmus of reasonableness”, enunciated in Regina vs. Einarson, it cannot be said that Constable Lauzon could reasonably rely on the “fail” result which he obtained on the fifth try.

Given that Constable Lauzon admitted that the result of the final test - that being the fail - was the pivotal piece of evidence on which he made the “over 80” arrest and breath demand (and I note that he did admit that he didn’t think that he had enough evidence to lay the charge without the roadside test results) I must conclude that there

was an absence of reasonable and probable grounds to make the breath demand. I therefore find that the taking of Mr. Jeremias’ breath samples were contrary to

section 8 of the Charter. Justice Ducharme of the Superior Court of Justice, made a similar finding earlier this summer in the case of Regina vs. Au-Yeung 2010 ONSC 2292 (CanLII) , [2010] O.J. No 1579 . Although that case had dealt with different facts, the court there found a

section 8 breach due to the arresting officer’s lack of knowledge regarding the operation of an approved screening device. The court found that the arresting officer did not know how to use the approved screening device so he could not reasonably rely on the “fail” message of the device. Having found a breach of the

section 8 rights of Mr. Jeremias, the next step is to consider whether or not the breath samples should be excluded under section 24(2) of the Charter . The proper approach to this question is set out at paragraph 71 of The Supreme Court of Canada’s decision in Grant .

The majority there said the following: “When faced with an application for exclusion under s.24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter - infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter- protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits.

The court’s role on a s.24(2 ) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission

of the evidence would bring the administration of justice into disrepute.” I will therefore address each of these factors in turn. The Seriousness of the Charter-Infringing State Conduct First of all, there is the seriousness of the Charter infringing state conduct.

In Grant , at paragraph 72 to 74 , the court said: “The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct.

The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law. This inquiry therefore necessitates an evaluation of the seriousness of the state conduct that led to the breach. The concern of this inquiry is not to punish the police or deter Charter breaches, although deterrence of Charter breaches may be a happy consequence.

The main concern is to preserve public confidence in the rule of law and its processes. In order to determine the effect of admission of the evidence on public confidence in the justice system, the

court on a s. 24(2) application must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter . State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law.

At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute.” Crown counsel has noted that Constable Lauzon was being “quite honest” when he gave his evidence as to his limited knowledge of how the Alcotest 7410GLC worked and how he believed that the breath samples being provided by Mr. Jeremias did not appear to be full breaths. I agree with the characterization of Constable Lauzon.

I found his evidence to be honest and forthright. He had no difficulty admitting there could be additional reasons why an Alcotest device might register or produce an error message beyond an individual not blowing hard enough into the device. He simply didn’t know what they were. He also readily admitted that he didn’t know why the error message registered repeatedly and that he couldn’t recall the numbers which accompanied the error message on each of the four times that it was displayed.

As Justice Ducharme said at paragraph 53 in the Au- Yeung decision: “Central to the constitutional integrity of the two-step legislative scheme in sections

254(2) and 254(3) of the Criminal Code designed to combat drinking and driving offences, is the proper use of ASD’s by police officer’s.” As previously stated, Constable Lauzon for whatever reason did not know how to use the machine properly. Because he did not, I have already found that he did not and could not have had a reasonable belief or reasonable and probable grounds that the device was in good working order.

It is a fact that Constable Lauzon failed to address his mind to the other possible reasons as to why the Alcotest would register an error message four separate times, even though he was aware or, to use the word that he adopted, “imagined” that other explanations existed beyond a person not providing a full breath.

I find it very concerning that a police officer entrusted with the use of a device which can lead to arrest, conviction, a criminal record, loss of driving privileges and significant increased insurance costs would not either be made aware of, or make himself aware as to how to properly use the Approved Screening Device. The court in Grant said at paragraph 75 : “Good faith on the part of the police will also reduce the need for the court to dissociate itself from the police conduct.

However, ignorance of charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith.” In the Au-Yeung decision, Justice Ducharme phrased it this way at paragraph 3: “Admitting one’s incompetence does not excuse it.” Although I would not go so far as to say that Constable Lauzon was incompetent, his self expressed knowledge or rather lack thereof, as to the correct operation of the Alcotest device leaves a great deal to be desired. He should have known how to operate the device, not just minimally.

He should have known to identify the number which accompanied the error messages, and he should have known what the steps were to be taken for each of those numbers as they became displayed. At paragraph 55 of the Au-Yeung decision, Justice Ducharme went on to say:

“The reputation of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct. Police officers who stop and detain motorists in order to perform ASD tests must execute their duties efficiently, competently and accurately. There is no question that the need to combat drinking and driving is a pressing social concern. The public therefore accepts the use of breath samples both for roadside screening and ultimately for the determination of blood alcohol levels.

Nevertheless the administration of justice would inevitably fall into disrepute if such shoddy police conduct were permitted to form the basis for the arrest, detention and subsequent testing of drivers. As Sopinka, J. observed in Bernshaw, at paragraph 74, “Although we all agree that Parliament has every reason to vigorously pursue the objective of reducing the carnage on our highways, that objective is not advanced by subjecting innocent persons to invasions of privacy on the basis of faulty tests. I do believe that this is what Parliament intended in enacting

section 254 of the Criminal Code .” I find that Constable Lauzon’s actions did not comply with either the Criminal Code or the Charter and that they constitute a serious breach which favours exclusion under the first branch of Grant . The Impact on the Charter-Protected Interests of Mr. Jeremias Now, dealing with the impact on the Charter protected interest of Mr. Jeremias. The second branch of the Grant 24(2) analysis calls for an evaluation of the extent to which the breach actually undermined the interest protected by the rights infringed.

As Justice Borenstein very recently said at paragraph 24 in the Ontario Court of Justice Decision, Regina vs. Vijayam 2010 ONCJ 537 (CanLII) , [2010] O.J. No.4914 , which was another drinking and driving Charter case: “When assessing the impact of the breach on [the Accused’s] Charter -protected interests in relation to whether to admit or exclude evidence, the underlying rationale is that courts must proclaim the importance of the rights under the Charter and demonstrate that the courts take violations of the rights of the accused seriously.

The more significant the impact of the breach on the Charter- protected interests of an accused, the greater the need for the courts to exclude the evidence.” I am mindful that Grant and other cases have found the collection of breath samples to be minimally intrusive and described as being at “the one end of the spectrum.” However, this case and many others involving drinking and driving offences go well beyond the simple acts of the taking of breath tests. In this case, Mr.

Jeremias was stopped by the police on the roadside, was required to complete field sobriety tests (finger to nose) was required to blow not once, but five times into an ASD, was arrested, placed in the back of a police car and then transported to a police station where he was detained in custody for at least another one hour and thirty minutes and certainly longer. I am basing that on the time of his arrival, to the time of completing his second breath sample. This interference with Mr. Jeremias’ liberty cannot be dismissed as minor. I find it to be significant. Additionally, I would add that the arrest of Mr.

Jeremias impacted his rights, not only under

section 8 , but sections 9 and 10 as well. His rights were respected under s.10 , however, given that the taking of his breath samples constituted an unreasonable search and seizure contrary to s.8 , his arrest and detention constituted a violation of s.9 of the Charter . As Justice Ducharme stated at paragraph 62 in the Au-Yeung decision, “While the public are supportive of the legislative scheme in place to combat drinking and driving, this support cannot be presumed

to extend to police actions that involve the detention and arrest of drivers without the requisite statutory and constitutional grounds. To condone or excuse the behaviour in this case would send the message to the public that, despite their Charter Rights under sections 8 and 9 of the Charter , the police can ignore these and detain and arrest any driver. Thus, despite the minimal intrusiveness of the breath-testing procedures themselves, the second branch of Grant also weighs in favour of the exclusion of the evidence.” I make the same finding in the case of Mr. Jeremias.

The second branch of the Grant test favours exclusion. Society’s Interest in Having a Case Adjudicated on the Merits The third branch is society’s interest in having a case adjudicated on the merits. Grant points out at paragraph 110 that this line of inquiry usually favours admission in cases involving bodily substances. The reality following Grant is that breathalyzer test results will no longer be routinely excluded in cases of a C harter breach. Breath test results are generally considered reliable, hence admitting the breath test results of Mr.

Jeremias would not bring the administration of justice into disrepute. Accordingly, the third branch of the Grant analysis favours admission of the breath sample evidence. Conclusion on Section 24(2) The third factor of Grant is not entitled to any special priority or analytical pre eminence. The same applies to the first two branches. What is required is a balancing of all three branches. Those who drink and drive create unnecessary risks and dangers not only for themselves but also for all of society. Those individuals however, are entitled to the full protection of the Charter.

In this regard again, I refer and rely upon the comments made by Justice Ducharme in the Au-Yeung decision. He said at paragraph 58: “In considering this question Grant requires that I bare in mind the long-term and prospective effect upon the fair administration of justice, focusing less on the particular case than on the impact over time of admitting the evidence obtained by

infringement of the constitutionally protected rights of the accused. In doing so, I note the comments of Fish J. for the majority at paras 110 to 113 of R. vs. Morelli , [2010] S.C.J. No.8, a decision of the Supreme Court of Canada : “Justice is blind in a sense that it pays no heed to the social status or personal characteristics of the litigants. But justice receives a black eye when it turns a blind eye to unconstitutional searches and seizures as a result of unacceptable police conduct or practices.

The public must have confidence that invasions of privacy are justified, in advance, by a genuine showing of probable cause . To admit the evidence in this case and similar cases in the future would undermine that confidence in the long term. I am persuaded for all these reasons that admitting the illegally obtained evidence in this case would bring the administration of justice into disrepute. I would therefore exclude that evidence... [Emphasis added.] Justice Ducharme adds at paragraph 69: “In my view, the public should expect that when they are stopped by the police their Charter rights will be [respected].

Certainly the public must have confidence in the competence of the police and in the fact that

they will not detain or arrest drivers without the requisite grounds. Even more importantly, the public must have confidence that those officers who are charged with exercising the important powers under s.254 of the Criminal Code have the necessary skills and training to do so in a matter that complies with both the Criminal Code and the Charter .” Now although the Morelli decision was one in which the facts were more serious (that was a possession of child pornography case) than in the Au-Yeung case, or the case involving Mr. Jeremias, in my view the comments of Justice Fish are equally applicable.

For all of the above reasons, therefore the breath sample evidence is excluded and the “over 80” charge is dismissed. * * * * * * * * * * FORM 2 CERTIFICATION OF TRANSCRIPT (SUBSECTION 5(2)) Evidence Act I, Tammy Peats, certify that this document is a true and accurate transcript of the recording of R. v. Jeremias in the Ontario Court of Justice held at 425 Grand Avenue West, Chatham, Ontario, N7M 6M8 taken from a copy of Recording Number 311/10, and 312/10 Courtroom No. 101, the original of which has been certified in Form l.

May 10, 2011 Tammy Peats Date Court Reporter PHOTOCOPIES OF THIS TRANSCRIPT ARE NOT CERTIFIED AND HAVE NOT BEEN PAID FOR UNLESS THEY BEAR THE ORIGINAL SIGNATURE OF THE COURT REPORTER, AND ACCORDINGLY ARE IN DIRECT VIOLATION OF ONTARIO REGULATION 567/91, COURTS OF JUSTICE ACT, JANUARY 1, 1990 . Transcript ordered: December 22, 2010 Transcript completed: May 10, 2011 Ordering Party Notified: May 10, 2011