R. v. Marchi, 2016 ONCJ 757

CITATION: R. v. Marchi , 2016 ONCJ 757 DATE: December 27, 2016 COURT FILE No.: St. Catharines ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — and — ASTRA MARCHI Before Justice Fergus ODonnell Reasons for Judgment Released on 27 December, 2016 Ms. J. Strecansky.................................................................................................. for the Crown Mr. B. Starkman...................................................................... for the defendant, Astra Marchi Fergus ODonnell, J.: Overview 1 .

Astra Marchi appeared before me charged with a single count of operating a motor vehicle with an excess blood alcohol concentration. The trial was a short one, involving the evidence of two Ontario Provincial Police Constables. Mr. Starkman’s cross- examinations were focused and purposive. At the end of the trial I offered Ms. Marchi the option of putting the matter over for a decision with accompanying reasons or of having my decision to be followed by written reasons later. She opted to have my decision that day.

I found her guilty as charged, having concluded that her application to exclude the breath samples under s. 8 and s. 24(2) of the Charter failed and that the Crown had otherwise proved the offence beyond a reasonable doubt. These are the reasons for that decision. The Evidence 2 . Constable Sean Sloan testified that he has been with the Ontario Provincial Police (“O.P.P.”) for eight years. On 4 September, 2015 he was working overnight into the early morning of 5 September, 2015.

Around 1:37 a.m. he was advised of a complaint of a possible impaired driver headed eastbound on the Queen Elizabeth Way (“QEW”), with the caller listing various indicia that certainly were consistent with impairment. Constable Sloan waited for the described car at Jordan Road and followed it for about four kilometres to 7th Street in St. Catharines. He personally observed one, but not all, of the indicia described by the caller, namely that the car was weaving, albeit only within its lane, not over the lane markings as suggested by the caller. 3 . Constable Sloan pulled the car over and found Ms.

Marchi to be the driver. He detected a slight odour of an alcoholic beverage from her breath. She told him that she had had four glasses of alcohol that evening, finishing the last glass almost two hours earlier. Suspecting that she had alcohol in her body, Constable Sloan read her the approved screening device demand. Defence counsel did not require to hear the wording of the approved screening device demand. Constable Sloan described the device as an “Alcotest six-eight- ten”. When asked by the Crown if that was an “approved instrument ”, he said that it was.

He described the demonstration and testing process and said that Ms. Marchi’s reading registered a “fail”, and that those, “instruments are calibrated to fail at 100 milligrams of alcohol per 100 millilitres of blood”. The evidence is clear that this process took place at the roadside. As a result of that failure, Constable Sloan arrested Ms. Marchi. Throughout her questioning of Constable Sloan, the Crown referred to the “instrument” and alternatively to the “approved screening device”.

4 . After Ms. Marchi’s arrest, Constable Sloan read her the “breath demand”. The wording of this demand was read into the record and it conformed to the usual wording presented to a driver in pursuit of an “approved instrument” sample, i.e. a sample taken by a qualified technician at a police detachment. Pursuant to that demand, Ms. Marchi was taken to the Niagara Falls O.P.P. detachment, where she spoke with duty counsel and then provided breath samples to Constable Calverley. Those samples showed readings of 161 and 168 mg of alcohol in 100 ml of blood, both of which were truncated to 160 mg. 5 .

In cross-examination, Constable Sloan agreed that if Ms. Marchi had not failed the "roadside test” (the wording used by Mr. Starkman in his question), he would not have had sufficient grounds to arrest her and would have sent her on her way from the side of the road. In cross-examination the breath technician, Constable Calverley, a twenty year veteran of the O.P.P. agreed with Mr. Starkman that he would call the machine used at the roadside “an approved screening device”, not an “instrument”. 6 . Constable Sloan served Ms.

Marchi with the requisite documents, being the certificate and the notice of intention. 7 . Having observed Constable Sloan’s testimony I am of the view that he testified fairly and without exaggeration or any agenda other than telling the truth as best he recalled it. However, his testimony was not exactly a model of precision. Both fairness and precision are admirable qualities in a witness. Precision is more important in some cases than others.

Depending on the particular type of case, a fine detail might make all the difference in a determination of whether or not an offence has been proved or in demonstrating compliance with the requirements of the Charter of Rights and Freedoms . Some types of offences may be quotidian (drink-driving offences are sadly in this category), but nonetheless may require precision and nuance in light of the nature of the offence, of the evidence required to make out the offence or of the technical requirements to make that evidence admissible. Excess blood alcohol offences are very firmly rooted in that category.

Attention to detail and precision in articulation may be the difference between a solid Crown case becoming a failed prosecution. The Issues 8 . That lack of precision was precisely the focus of Mr. Starkman’s submissions, the lack of precision in Constable Sloan’s articulation of which device or instrument or machine he presented to Ms. Marchi at the roadside. Insofar as that device provided the sole grounds for Ms. Marchi’s arrest, Mr. Starkman argued that the Crown had to show that Constable Sloan reasonably relied on it.

There may be various issues surrounding reasonable reliance on such devices, etc., but surely a foundational concern is that the “device” is one approved of by Parliament. In this case, Mr. Starkman argued that Constable Sloan described the device as an Alcotest 6810 but did not mention the manufacturer’s name, “Draeger”, which is part of the usual recitation and part of the formal description of the approved screening device. [1] 9 . Mr. Starkman pointed to the decision of the Court of Appeal for Ontario in R. v. Gundy, 2008 ONCA 284 as the guiding authority in this area. I agree.

In this case there was an intermittent lack of precision in the use of specific technical descriptors by both the Crown and Constable Sloan. However, what is clear is the following: a. Constable Sloan referred to having made the “approved screening device” demand. b. He described the approved device by two-thirds of its formal name, using the words “Alcotest six-eight-ten”, specifically the two words that refer to the model but not the manufacturer. c.

Constable Sloan described the functioning of the device in language that is consistent with the function of an approved screening device, i.e. that it registers a fail at 100 mg of alcohol per 100 ml of blood 10 . While I think it is always desirable for witnesses, especially professional witnesses, to testify with as much precision as possible, particularly in relation to technical matters, a criminal trial is ultimately not a police officer’s performance appraisal.

It is a determination of whether or not the Crown has proved its case beyond a reasonable doubt and, in many cases, whether or not the Crown’s evidence has been obtained lawfully or, if it has not been obtained lawfully, if it should be excluded from the trial pursuant to s. 24(2) of the Charter of Rights and Freedoms. All of those determinations require an analysis of what the evidence fairly makes out, including what inferences reasonably can be drawn from the evidence. 11 . I have said that I agree with Mr.

Starkman that Gundy, supra, is determinative of the outcome of this case, but I cannot read the words of Rosenberg, J.A. and apply them to the evidence before me and reach the conclusion Mr. Starkman seeks on behalf of his client. I do not challenge the attempt. It is Mr. Starkman’s duty to advance whatever argument might be advanced on the evidence in favour of his client. I simply feel that the record before me cannot possibly justify the outcome he seeks for Ms. Marchi.

I think that my conclusion can best be demonstrated by using the language of Gundy, supra, at some length, for that judgment overflows with common sense distilled from experience and previous decisions and that language itself persistently rejects the argument Mr. Starkman advances (my emphasis added below):

[44] In determining whether the particular device was approved, the court must consider all the evidence, including any circumstantial evidence. The court is entitled to draw reasonable inferences from the evidence. Thus, in my view, if the officer in his or her testimony refers to the device as an “approved screening device”, the trial judge is entitled to infer that the device was indeed an approved device.

As such, the officer is entitled to rely upon the “fail” recorded by the device to find that there were reasonable and probable grounds to make the breath demand. [45] The officer is not required to refer to the device by its particular brand and number such as “Alcotest 7410 GLC”. Further, references to a part only of the identification such as “Alcotest” or “Alcotest GLC” do not rebut the reasonable inference from the officer’s reference to the device as approved that it is indeed an approved screening device.

The addition of the manufacturer’s name, for example “Drager Alcotest 7410 GLC”, is likewise not fatal: see R. v. Neziol (2001), 22 M.V.R. (4th) 299 (Ont. S.C.J.) . Further, in my view, the context in which the officer refers to the device as approved is of no particular moment. Thus, if the officer testifies that he or she used an approved screening device, or agrees with the suggestion that it is an approved screening device, such testimony is direct evidence upon which the trial judge can rely : see e.g. R. v. Latulippe (2005), 26 M.V.R. (5th) 97 (Ont.

S.C.J.) . [46] Where, as here, the officer states that she made a demand that the motorist provide a sample for analysis by the approved screening device, surely the trier of fact can reasonably infer that the officer used an approved device. That was the holding of the trial judge in this case and I agree with that decision. As Langdon J. said in R. v. James, [1995] O.J. No. 190 (Gen.

Div.) at para. 5 , “what is the likelihood that the O.P.P. would supply its constables with an unapproved device with which to enforce the R.I.D.E. programme?” [47] In my view, cases holding that the officer did not have reasonable and probable grounds because, although the officer referred to the device as an approved screening device, he or she used a shorthand reference to the device or transposed some of the numbers or letters are wrongly decided .

In the absence of some credible evidence to the contrary, it is not reasonable to infer that an officer who says that he or she used an approved screening device actually used an unapproved device. That was the holding of this court in R. v.

Kosa (1992), 42 M.V.R. (2d) 290 at 291 : We are of the view that the manufacturer's model number given by the officer in evidence as Model JA3 rather than Model J3A as set forth in the regulations was no more than an innocent transposition of a number and letter and that the unchallenged assertion by the officer that it was an approved screening device is sufficient proof thereof.

If such is the case, there is no need to look further to justify the finding of reasonable and probable grounds. [Emphasis added.] [48] Of course the question of whether the officer had reasonable and probable grounds depends on the circumstances of each case. My only point here is that the trial judge is not confined to direct evidence and is entitled to and should draw reasonable inferences from the proven facts. 12 . I am, therefore, satisfied beyond any doubt that the device that Constable Sloan presented to Ms. Marchi was an “approved screening device” within the meaning of the Criminal Code , that Ms.

Marchi’s failure on the approved screening device sample provided Constable Sloan with reasonable grounds to arrest her for driving “over 80” and that the samples taken by Constable Calverley at the station were lawfully obtained. There was no breach of s. 8 of the Charter here. 13 . Insofar as this case falls so squarely within the guidance of the Court of Appeal in Gundy , supra, it may seem like overkill or it may seem unhelpful, or perhaps both, to consider how s. 24(2) of the Charter might have applied if I had found a breach of s. 8 of the Charter here. I shall deal with that

section as briefly as possible. Unlike the unreasonable search argument under s. 8, where the onus lies on the Crown to prove the search was lawful, the onus for exclusion under s. 24(2) lies upon Ms. Marchi. 14 . Assuming that the evidence before me had fallen short of satisfying me that Constable Sloan was using an approved screening device, that evidence would have fallen short by only the slightest measure. It would be an error of articulation rather than an instance of calculated circumvention of Ms. Marchi’s privacy rights at the roadside.

The seriousness of any such “breach” of the Charter would have been minor. The impact on Ms. Marchi’s Charter- protected interests would likewise be slight. This is an area that has been well- trodden by the Court of Appeal and the Supreme Court of Canada and it has been inescapable ever since the Supreme Court of Canada’s decision in R. v. Grant , 2009 SCC 32 , at least for those who have been willing to listen, that "where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused’s body may be admitted.

For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive.” (at paragraph 111). 15 . Mr. Starkman urged me to consider the entire chain of events arising from a motorist’s detention after a ‘failed’ approved screening device demand (being arrested, being detained, having one’s car impounded, being held for an hour or two or longer for the Intoxilyzer

sampling, etc.) as changing the analysis with respect to the impact of a breath sampling on a motorist. I do not doubt for a moment that those processes are inconvenient or worse. However, while the ways of the Supreme Court may at times seem inscrutable to mere mortals, I am entirely unwilling to assume that in 2009 when the Supreme Court decided Grant , supra, it was so inexperienced in drink- driving cases that it was not aware of the consequential impacts of a breath demand referred to by Mr. Starkman and by Ducharme, J. in R. v. Au-Yeung, 2010 ONSC 2292 , the authority upon which Mr. Starkman relies.

The judges of the Supreme Court have dealt with more than a handful of drink-driving cases in their time. In the vernacular, the conclusions they expressed in Grant , supra, were not their “first rodeo”. Those conclusions were rooted in intimate familiarity with drink-driving scenarios. Nothing referred to by Ducharme, J. in paragraph 61 of Au-Yeung, supra, would have been unknown to the Supreme Court of Canada a year earlier.

Accordingly, that line of reasoning cannot reasonably be relied upon to undermine the clear characterization of breath evidence for s. 24(2) purposes expressed by the Supreme Court of Canada in Grant . 16 . Mr. Starkman also urged upon me two non-criminal cases as undermining what Grant, supra, has to say about breath sample evidence. The first was the decision of the Supreme Court itself in Communications, Energy and Paperwork’s Union of Canada, Local 30 v. Irving Pulp and Paper, Ltd., 2013 SCC 34 .

That was a case in the employment context in which management had unilaterally purported to impose mandatory random alcohol screening. I do not believe that it is helpful to take a case from an entirely different context, involving an entirely different analytical framework, and to attempt thereby to dilute or neutralize recent and directly relevant authority from the Supreme Court of Canada with respect to breath sampling in the drink-driving context.

It is highly improbable that the Supreme Court of Canada intended in a single paragraph of a labour-relations decision to set aside what is arguably its foremost recent judgment on the application of s. 24(2) of the Charter in criminal cases. The same is true of the decision of Himel, J. in Gillies (Litigation Guardian of) v. Toronto District School Board, 2015 ONSC 1038 , a decision involving the proposed use of a breathalyzer to screen students seeking admission to a high school prom. 17 .

To the contrary, the authorities that I consider both relevant and binding with respect to the continued authority of Grant, supra, in relation to the relatively low impact of breath sampling on a driver’s privacy interests are cases such as the decision of K. Campbell, J. in the Superior Court in R. v. Rehill, 2015 ONSC 6025 and the decision of the Court of Appeal this past summer in R. v. Guenter, 2016 572 (at paragraph 98). Applying those authorities and Grant, supra, the nature of any Charter breach here was minor, as was the impact of any breach on Ms.

Marchi’s Charter- protected rights, whereas the impact of exclusion on the Crown’s case would have been disproportionate, even fatal, to the Crown’s case. Balancing all those factors, assuming that I had concluded that there had been a Charter breach, I would have been far from satisfied that exclusion had been made out. 18 . Mr. Starkman also argued that if there was a Charter breach that did not lead to exclusion under s. 24(2) , I should still consider an alternative remedy under s. 24(1) , such as denying the Crown the presumption of identity. In this argument he relied on the decision in R. v.

Jordaan, an unreported decision of Tuck-Jackson, J, dated 28 November, 2012. I do not find that decision persuasive. To the contrary, I find compelling the more recent analysis of that same issue by Justice Code in the Superior Court of Justice in R. v. Zhao, 2014 ONSC 1985 , as follows (emphasis mine): [28] I should not leave this issue without noting that there appears to be no binding authority, from the Ontario Court of Appeal or the Supreme Court of Canada, as to whether a Charter claimant can resort to s. 24(1) remedies in a drinking and driving case where a remedy pursuant to s. 24(2) has been denied.

Moldaver J.A. declined to address the issue, when giving the judgment of the Court of Appeal in R. v. Charette and Tran, supra at para. 30. Mr. Genis concedes that the argument is a “novel” one. At the trial proceedings, he submitted forthrightly that the s. 24(1) argument “allows us to go around Grant essentially”.

This apparently frank acknowledgement, that the Grant approach to s. 24(2) is a difficult one in drinking and driving cases and so s. 24(1) provides a better remedial means of getting to essentially the same result, does not sound like a principled reason for allowing resort to s. 24(1) when s. 24(2) has failed. [29] However, it must be acknowledged that the remedy being sought under s. 24(1), namely, an order prohibiting reliance on the “presumption of identity”, does not strictly involve the admissibility of evidence. See: R. v. Charette and Tran, supra at para. 46.

Accordingly, there is a principled basis for situating this particular remedy under s. 24(1) and not under s. 24(2). However, the practical effect of the remedy is very similar to excluding evidence of the Intoxilizer test results. Without access to the “presumption of identity” under s. 258(1)(c), the test results on their own are essentially valueless. The Crown would have to call an expert toxicologist in every case where s. 24(1) is raised, to relate the test results back to the time of driving, or else risk an inevitable acquittal if s. 24(1) relief is granted at the end of the trial.

Alternatively, the Crown could refuse to consent to blended trial and Charter proceedings whenever s. 24(1) is raised and could insist on a separate s. 8 voir dire at the start of the trial, and then await the trial judge’s ruling on any s. 24(1) remedy before closing its case.

Needless to say, this would significantly lengthen, delay and complicate drinking and driving trials. [30] Given that the traditional s. 24(2) remedy in drinking and driving cases (exclusion of the test results) and the novel s. 24(1) remedy (denial of access to the “presumption of identity”) have very similar impacts, and given that the s. 8 violation is identical in either case, one would not expect significantly different remedial results under these two closely connected provisions of the Charter .

Both provisions are found in s. 24 and both provisions require a broad consideration of all the circumstances, before granting a particular remedy. Indeed, it could be argued that s. 24(2) simply particularizes the test for when it would be “appropriate and just” under s. 24(1) to grant the remedy of excluding evidence.

In this regard, it should be remembered that the introductory words to s. 24(2) are: “where, in proceedings under subsection (1) …” Furthermore, as noted above, the s. 24(1) framework for analysis that emerges out of Doucet- Boudreau and Ward bears a number of similarities to the s. 24(2) framework for analysis that emerges out of Grant. Indeed, McLachlin C.J.C. authored both Grant and Ward, exactly one year apart, and Grant was cited and referred to in Ward, supra at para. 52, for the

proposition that: “The seriousness of the breach must be evaluated with regard to the impact of the breach on the claimant and the seriousness of the state misconduct.” [31] For all these reasons, I am sceptical of the proposition that s. 24(1) and s. 24(2) will yield different results in this specific context. I am certainly satisfied that they did not yield different results in this particular case. [32] Finally, I should note that I was referred to the decision of Tuck-Jackson J. in R. v. Francois Jordaan, unreported, November 28, 2012 (Ont.

C.J.), where she granted the same s. 24(1) relief sought in the present case after finding a relatively minor s. 8 violation and after denying s. 24(2) relief. I did not find the decision helpful, given that the trial judge’s brief analysis of the s. 24(1) issue contained no reference to, or application of, the s. 24(1) analytical framework that has emerged out of binding authorities from the Supreme Court of Canada, as set out above. Conclusion 19 . It is for these reasons that I dismissed Ms.

Marchi’s Charter application and found her guilty of the offence of operating a motor vehicle with an excess blood alcohol concentration. Released: 27 December, 2016