R. v. Mendonca, 2010 ONCJ 614

Citation: R. v. Mendonca , 2010 ONCJ 614 ONTARIO COURT OF JUSTICE (Central East Region) BETWEEN: HER MAJESTY THE QUEEN and DARRYL MENDONCA Accused JUDGMENT Counsel for the Crown Ms. Yeshe Laine Counsel for the Defence Mr. Mason Millar KENKEL J., Introduction 1 . Mr. Mendonca is charged with operating a motor vehicle with a blood alcohol level in excess of the legal limit contrary to s.253(1)(b). 2 . The defence concedes that the Crown has otherwise proved their case subject to consideration of the s.8 Charter application.

The sole remaining issue is whether the arresting officer had reasonable grounds for the s.254(3) demand given that he did not record the exact error code on the first failed screening device test. Evidence at Trial

3 . Mr. Mendonca made a sharp left turn at high speed off Yonge Street which drew the attention of Constable Samaroff. When the officer followed Mr. Mendonca sped away travelling 110km in a 50km zone. When Constable Samaroff activated his lights and caused the vehicle to stop Mr. Mendonca complied and was thereafter co-operative with police. 4 . Constable Samaroff detected an odour of an alcoholic beverage coming from the mouth of the accused. The accused admitted he had been drinking, although he said it was much earlier that evening.

Constable Samaroff observed other indicia of alcohol consumption but also noted that the accused produced various documents requested without any apparent difficulty. 5 . Constable Samaroff made a demand under s.254(2) and administered a test with an approved screening device. On his second attempt the accused provided a suitable sample and the device registered a “Fail’ indicating that the accused’s blood alcohol concentration was at or above 100mgs of alcohol in 100ml of blood. ASD Error Codes 6 . Relying on R. v. Costa [2010] O.J.

No.1881 (C.J.) , the defence submits that the officer’s s.254(3) demand was not objectively reasonable as the officer recorded only the “E” message in his notes. According to a 2006 Training Aid for the Alcotest 7410 GLC produced by the Centre of Forensic Sciences there are 7 possible “E” messages and while E0 relates to an insufficient sample, E1 through E6 show instrument or calibration faults. 7 . Constable Samaroff considered the correct statutory criteria for the approved screening device demand and there was objective evidence supporting his reasonable suspicion.

Considering all of the evidence, I find the Crown has proved his subjective conclusion that he had grounds for a s.254(3) breath demand based on the “fail” result of the completed test was objectively reasonable for two reasons: - First, Constable Samarrof observed that the accused was not properly blowing into the device as he had been directed at the time of the test.

His recording of the E failure message was in the context of his observation of an improper sample and explains the result. - Second, there’s no evidence of any malfunction with the approved screening device much less one which would have indicated to the officer a “high degree of unreliability” such that it would be unreasonable for him to rely upon the result as a basis for his demand. See: R. v. Paradisi 1998 CanLII 1989 (ON CA) , [1998] O.J. No.2336 (C.A.) The device was recently calibrated and had successfully completed three prior tests that evening.

The defence submits that as the E code was not specified in the officer’s notes it’s possible that the machine was indicating malfunction and might possibly have completed the further test of the accused without resolving that error. Aside from the officer’s observations which indicated the nature of the error in this case, no evidence was led to support the assertion that it’s possible the Alcotest could display an E1 to E6 error code but then go on to conduct and complete a further breath test without having resolved the internal issue. 8 .

I find the Crown has proved that the s.254(3) demand was made on objectively reasonable grounds. I find the defence has failed to prove the breach alleged on the balance of probabilities. The s.8 Charter application is dismissed. Conclusion 9 . Considering all of the evidence as a whole I find that the Crown has proved the charge alleged beyond a reasonable doubt. There will be a finding of guilt. Delivered at Newmarket, December 15, 2010

Hon. Justice Joseph F. Kenkel