HER MAJESTY THE QUEEN, v. GREGORY BONNAR., 2013 NBPC 16

2013 NBPC 16 CANADA File No.: 06900502 PROVINCE OF NEW BRUNSWICK PROVINCIAL COURT BETWEEN: HER MAJESTY THE QUEEN, -and- GREGORY BONNAR. BEFORE: Judge Marco R. Cloutier TRIAL HELD: Saint John, New Brunswick DATE OF TRIAL: June 10, 2013 DATE ON WHICH COUNSEL SUBMITTED AUTHORITIES: July 5, 2013 DATE OF DECISION: July 22, 2013 APPEARANCES: Patrick Wilbur on behalf of Her Majesty the Queen

W. Rodney MacDonald on behalf of the Accused Ruling on Voir Dire [1] M.R. CLOUTIER PROV. CT. J.: The issue is whether or not the officer had reasonable and probable grounds, as required by s.254(3) of the Criminal Code and by R. v. Shepard 2009 SCC 35 , [2009] 2 S.C.R. 527 (S.C.C.), to make a Breathalyzerdemand. I Introduction [2] The accused, Gregory Bonnar, (“the accused”) stood trial on an Information alleging two counts: first, of operating a motorvehicle having consumed alcohol in such a quantity that the concentration in his blood exceeded the legal limit, an offence under s.253(1)(

b) of the Criminal Code (“Count 1”), and secondly, an offence of having operated a motor vehicle while his ability to operate thesaid vehicle was impaired by alcohol or a drug, an offence under s. 253(1)(

a) of the Criminal Code (“Count 2”). Both of these offencesare alleged to have occurred at or near Saint John, New Brunswick, on or about November 8, 2012. [3] Counsel agreed that the case would proceed in a voir dire format and any evidence found to be admissible would be appliedmutatis mutandis. [4] The Crown withdrew Count 2 at the end of trial. [5] The Crown presented two witnesses at trial, Cst. John MacDonald and Cst. Donald Shannon.

I accept their respective evidence inits totality and I would qualify it as being credible and reliable. [6] The Defence called no evidence on the voir dire or the trial proper. II Evidence [7] Cst. MacDonald testified that on November 8, 2012, he was patrolling with a marked vehicle in uptown Saint John in the Countyof St. John and in the Province of New Brunswick. [8] At approximately 21h45, Cst. MacDonald was parked on Coburg Street when he observed a red Ford pickup (“the vehicle”) withno taillights on and with the rear cab light on. [9] Cst.

MacDonald followed the vehicle on Coburg Street through Golding Street. When the vehicle turned onto Waterloo Street,the operator failed to signal his intention to turn. [10] Cst. MacDonald then followed the vehicle down Waterloo Street and observed it turning onto Alma Street. Again, the operator

failed to signal his intention to turn. Ultimately, the vehicle turned right onto Crown Street and, again, its taillights were not on. [ 11 ] Cst. MacDonald also observed the vehicle on Hanover Street and, as he approached the vehicle, he once again noted that the taillights were not on. At this point, it was 21h47, Cst. MacDonald activated the emergency lights and he intercepted the vehicle. [ 12 ] Cst. MacDonald approached the operator of the vehicle who was later identified as Gregory Bonnar. Cst.

MacDonald advised the accused that he was being stopped for driving with no taillights on and for failure to signal his intention to turn. He also requested production of routine documents including license, registration and proof of insurance. The accused produced the documentation sought. However, Cst. MacDonald had to request the registration and insurance cards twice. [ 13 ] During this discussion, Cst. MacDonald detected a faint smell of alcohol coming from the accused’s breath who was seated behind the wheel of his pickup.

He clarified that the discussion took place when he was talking face to face with the accused, standing about 8 inches away from him. [ 14 ] Cst. MacDonald also asked the accused if he had anything to drink and he indicated that he had approximately 2-3 beers two hours earlier. There was also a female passenger in the vehicle with the accused and she decided to walk home. [ 15 ] At 21h54, Cst. MacDonald concluded that he had the required suspicion to request that the accused provide a breath sample into an Approved Screening Device (“ASD”).

He read a demand to the accused who agreed to comply. [ 16 ] At 21h58, Cst. Shannon arrived at the scene with the ASD, a Dragger 7410 GLC. Cst. MacDonald administered the ASD to the accused. He registered a fail. Cst.

MacDonald testified that the fail registered into the ASD, along with his observation of the accused operating the vehicle at night time without any taillights on, with the cab bed light on, three failures to signal intentions to turn, the need to ask twice for registration and insurance cards along with a faint smell of alcohol detected from the accused`s breath, satisfied him that he had reasonable and probable grounds to form a belief that the accused had, within the preceding three hours, operated a motor vehicle while his blood alcohol level was over the legal limit. [ 17 ] Cst.

MacDonald also testified that, to him, the fact the accused registered a fail into the ASD “meant that he had alcohol in his body which exceeded the legal limit”. [ 18 ] Therefore, at 22h04, Cst. MacDonald read the Breathalyzer demand from a card to the accused which he accepted. He was also advised of his constitutional rights, including those under s. 10(

b) of the Charter which he understood. [ 19 ] The accused was transported to the Central Station and arrived at 22h09. He spoke with duty counsel in private from 22h26 to 22h31. He was then t urned over to Cst. MacPhee, the Qualified Technician, who conducted the test. The first test was taken at 22h58 and the second one at 23h20. The results were recorded in a Certificate of Qualified Technician which was submitted by the Crown as an exhibit to prove the accused’s level of alcohol.

This Certificate, a Notice of Intention to Produce, a Notice of Greater Punishment and an Appearance Notice were served on the accused. [ 20 ] On cross-examination, Cst. MacDonald admitted that the accused drove his vehicle through a construction zone without any apparent difficulty. [ 21 ] During his evidence in chief, Cst. MacDonald testified that he was trained and qualified to use this particular ASD since 2009. He indicated that he uses it on average once per week. He also explained that he checked the calibration sticker on the ASD and it was not due for recalibration.

He also described at length the ASD’s internal verification process (“self test”) and, as I understand, when the ASD is turned on, it will indicate whether or not it is ready for a sample; or, if it is not ready, it will give an “error” message. He testified that it is not his practice to use the device when he gets an “error”. [ 22 ] In this case, he turned on the ASD and it went through its regular start up process, including the self test, and did not show an “error” message. However, Cst. MacDonald noted that the ASD displayed a “low battery” warning. He “was not concerned about it”.

The device never shut off at any time prior to or during the time the accused was providing a sample of his breath .

[23] Despite a rigorous cross-examination, Cst. MacDonald maintained that he was satisfied the ASD device was working properlywhen administered to the accused. It was simply during a subsequent conversation with his supervisor that he had brought up the “lowbattery” display noted. III The Voir Dire: Issue [24] Counsel for the Defence filed and served a notice of Charter application on March 14, 2013. The notice alleged two grounds.However, counsel for Mr. Bonnar is only pursuing the alleged breach: “That the breath demand under section 254(3) of the Criminal Code of Canada lacked reasonable and probable grounds and as suchwas unlawful, contrary to

section 8 of the Charter”. [25] During closing argument, counsel for the accused particularized his argument as follows. Cst. MacDonald did not havereasonable and probable grounds to make a Breathalyzer demand in that the only evidence he relied upon was a fail result into the ASD.It is submitted that this, in and of itself, is insufficient to constitute reasonable and probable grounds to make the subsequent Breathalyzerdemand. Further, given that Cst.

MacDonald testified that while administering the ASD to the accused, he noted a “low battery” warningon the device, in applying the test for assessing the propriety of reasonable and probable grounds as set out in the SCC decision ofShepherd, it is asserted that the reasonable and probable grounds held by the Cst. MacDonald, if any, were not objectively reasonable. [26] With respect to the alleged insufficiency of evidence surrounding the fail reading from the ASD, counsel for the accused relieson a number of decisions including R. v.

Harrison 2011 BCSC 1571 wherein the Supreme Court of British Columbia quashedthe verdict of guilty of an offence under s. 254(5) and entered an acquittal on the basis that, at trial, the officer never testified that he heldan opinion or a subjective belief either that Ms. Harrison’s driving was affected or impaired by alcohol, or that Ms. Harrison hadcommitted an offence under s. 253 of the Criminal Code. I have read this decision with great interest. First, and foremost, I note that itwas reversed by the Court of Appeal of British Columbia reported at R. v.

Harrison, 2012 BCCA 339 in that the convictionwas reinstated. I suspect that the British Columbia Court of Appeal published its decision shortly after counsel for the accused submittedcase law in support of his client’s position. [27] In any event, at paragraph 14, Justice Smith writes: [14] Although this police officer was not versed in the technical terminology of blood alcohol levels, it is apparent the officerconsidered that Ms. Harrison had a blood alcohol concentration over that allowed by s. 253(1)(b) – .08 has no other significance in thecontext of alcohol related offences.

While this evidence would not support a finding of subjective belief for the purposes of s. 253(1)(a),it does support such a belief of an offence under s. 253(1)(b). It was open, in my view, to the judge to interpret this evidence as evidencethe officer “knew” the concentration of alcohol was greater than permitted by the Criminal Code. Rather than use the words “opinion” or“belief”, he used the stronger, more certain word, “knew”.

In my view, it was open to the judge to infer that an officer who “knew” thatthe alcohol concentration “was over the .08 limit, well over” had a subjective belief that the concentration of alcohol was greater thanwas permitted by s. 253(1)(b), thus satisfying that aspect of s. 254(3). [28] In limiting the issue to the above, the Court is satisfied that all essential elements of the offence have been established unless, ofcourse, evidence is excluded under s. 24 of the Charter.

IV Law and Analysis “That the breath demand under section 254(3) of the Criminal Code of Canada lacked reasonable and probable grounds and as suchwas unlawful, contrary to

section 8 of the Charter” Relevant Statutory Authorities

[29] Section 254(3) of the Criminal Code provides that:

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours hascommitted, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon aspracticable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, ifany, of alcohol in the person’s blood, or (ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable ofproviding a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of thequalified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine theconcentration, if any, of alcohol in the person’s blood; and (

b) if necessary, to accompany the peace officer for that purpose. (Underline mine) [30] Section 254(2) of the Criminal Code reads as follows: Testing for presence of alcohol or a drug

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, withinthe preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment orhad the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officermay, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (

a) and (b),in the case of alcohol: (

a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demandmay be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and (

b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of anapproved screening device and, if necessary, to accompany the peace officer for that purpose. Is a “fail” result into an ASD, per se, sufficient to constitute reasonable and probable grounds for an officer to make aBreathalyzer demand? [31] The Supreme Court of Canada considered the evidentiary value of a fail on a roadside test in R. v.

Bernshaw, (SCC), [1995] 1 S.C.R. 254; 1994 CarswellBC 3038. [32] In Bernshaw, evidence was tendered regarding the ALERT manufacturer’s training manual, which also cautioned that mouthalcohol may falsely raise the reading on a screening device. As well, the manual also recommended that a 20 minute wait occur beforetesting a driver who had been drinking and who burped or regurgitated. However, in Bernshaw’s trial, no evidence was lead regardingthe arresting officer’s training.

The officer was not asked if he had been advised to ask the driver about the timing of his last drink orasked if he was trained to wait 15 minutes before the test. Neither was there any evidence regarding the timing of Mr. Bernshaw’s lastdrink or if it had been consumed 15 minutes before the test. [33] Justice Sopinka, for the majority, stated the following: 56 I have read the reasons of Justice Cory and while I am in agreement with my colleague that the appeal should be allowed, withrespect, I cannot agree with the reasons by which he arrived at the result.

In the circumstances of the present appeal, I agree that the

police officer had reasonable and probable grounds to make a breathalyzer demand based on the results of the screening test along with the other indicia of impairment. However, I am not prepared to hold that, as a matter of law, a "fail" result is sufficient to constitute reasonable and probable grounds, per se, where a police officer is aware of circumstances that make the results of the test unreliable . 57 In the case at bar there is no evidence that such circumstances were present.

There was no evidence concerning the time when the respondent consumed his last drink of alcohol nor was there any evidence of other circumstances which would render the results of the test unreliable. The officer was entitled to rely on the results of the test in support of his opinion that reasonable and probable grounds existed on which to base a demand for a breathalyzer test. The decision as to whether a peace officer believes on reasonable and probable grounds that an offence is being committed and, therefore, that a demand is authorized under s. 254(3) of the Criminal Code , R.S.C., 1985, c.

C-46 , must be based on the circumstances of the case. It is, therefore, essentially a question of fact and not one of pure law . (Underline mine) [ 34 ] He adds as follows: 63 It is clear that Parliament has set up a statutory scheme whereby a screening test can be administered by the police merely upon entertaining a reasonable suspicion that alcohol is in a person's body. The purpose behind this screening test is evidently to assist police in furnishing the reasonable grounds necessary to demand a breathalyzer.

The roadside screening test is a convenient tool for confirming or rejecting a suspicion regarding the commission of an alcohol-related driving offence under s. 253 of the Code . A "fail" result may be considered, along with any other indicia of impairment, in order to provide the police officer with the necessary reasonable and probable grounds to demand a breathalyzer.

Normally, where a properly conducted roadside screening test yields a "fail" result, this alone will be sufficient to furnish a police officer with such grounds. 64 Nonetheless, as I stated at the outset, it cannot be said that a "fail" result per se provides reasonable and probable grounds. If that were the case, it was open to Parliament to indicate this intention in the Criminal Code . Yet, nowhere in s. 254 is it indicated that a "fail" result on an approved screening device is deemed to provide reasonable and probable grounds.

Thus, it is necessary to determine as a question of fact in each case whether or not the police officer had an honest belief based on reasonable and probable grounds that the suspect had committed an offence under s. 253 of the Code . 65 Where there is evidence that the police officer knew that the suspect had recently consumed alcohol and expert evidence shows that the subsequent screening test would be unreliable due to the presence of alcohol in the mouth, it cannot be decreed, as a matter of law, that both the subjective and objective tests have been satisfied.

To so hold would fly in the face of the evidence. What if the officer testifies that he did not believe that the ALERT reading provided the necessary grounds? Is his or her evidence to be ignored? The requirement in s. 254(3) that reasonable and probable grounds exist is not only a statutory but a constitutional requirement as a precondition to a lawful search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms .

Section 8 requires that reasonable and probable grounds exist in fact and not that their presence can be deemed to exist notwithstanding the evidence. (Underline mine) 73 If the scientific evidence establishes a high degree of unreliability with respect to the screening device when certain conditions prevail, and if a police officer knows, for example based on his or her training, that the resultant screening device will provide inaccurate results where a suspect has consumed alcohol within the 15 minutes prior to administering the test, how can the police officer testify that he or she had an honest belief of impairment, absent other indicia?

Surely the knowledge that the screening test is unreliable would vitiate any subjective belief that an officer may have regarding reasonable and probable grounds of the commission of an offence under s. 253 of the Code . A police officer will have difficulty in concluding that such a flawed test upgrades one's mere suspicion into reasonable and probable grounds.

If the police officer is to give an honest answer as to his belief, I cannot see how, as a matter of law, we can tell the officer that the answer is wrong. 74 This, of course, is assuming that the results of the screening test are the sole basis for raising a police officer's mere suspicion to full reasonable grounds to demand a breathalyzer under s. 253(3) of the Code . If other symptoms or indicia are present which are sufficient to provide reasonable and probable grounds, then the officer need not rely solely on a faulty screening device test and the above problem would not necessarily arise.

As I indicated earlier, each case must be assessed on its facts. However, a "fail" result per se is insufficient to furnish reasonable and probable grounds where circumstances exist as discussed above, such that the police know that the test would yield faulty results.

(Underline mine) [35] It is clear from a review of jurisprudence in Canada, particularly from R. v. Williams [2013] A.J. no. 497 (QL), that Bernshawstands for the proposition that: 1. A police officer’s belief in the existence of reasonable and probable grounds is a question of fact. 2. A properly conducted screening test which registers a fail will normally alone be enough to form reasonable and probable groundsfor a demand so long as it is honestly held by the police officer and it is objectively reasonable. 3.

Such a belief will not be objectively reasonable if there is evidence which suggests that the officer knew, for example, that thesubject had recently consumed alcohol and that the officer knew through his training that such mouth alcohol could yield and unreliabletest result. 4.

In the absence of evidence concerning the officer’s training on the proper and accurate use screening device, or in the absence ofevidence in the case which calls into question the circumstances under which the screening device was used or the samples taken, theofficer’s belief in the fail constituting reasonable and probable grounds for a breath demand will be subjectively and objectivelyreasonable. [36] In the instant case, the Defence argues that Cst. MacDonald did not have reasonable and probable grounds to make a Breathalyzerdemand in that the only evidence he relied upon was a fail result into the ASD.

It argues that this, in and of itself, is insufficient toconstitute reasonable and probable grounds to make the subsequent Breathalyzer demand. With respect, I disagree. [37] Given the absence of evidence which calls into question the circumstances under which the ASD was used or the sample taken(ie. knowledge by the officer that the accused had recently consumed alcohol and expert evidence showing that the subsequent testwould be unreliable), I find that the fail registered into the ASD by the accused alone was enough for Cst.

MacDonald to form the beliefthat he had reasonable and probable grounds justifying a Breathalyzer demand. [38] In any event, the evidence clearly establishes that Cst. MacDonald had observed other indicia of impairment aside from the failregistered into the ASD. He testified that he also made the Breathalyzer demand based on his observation of the accused operating hisvehicle at night time without the taillights on and with the rear bed light on, three failures to signal intention to turn, the need to ask theaccused twice for insurance and registration cards and a faint smell of alcohol detected from his breath.

Is the Crown obligated to prove beyond a reasonable doubt that the ASD was working properly? [39] Some confusion arose during closing argument as to whether the Crown has to prove that the ASD was reliable and workingproperly or whether the accused has to prove that it was a faulty device. [40] In R. v. Paradisi, (ON CA), [1998] O.J.

No. 2336, the Ontario Court of Appeal held that in cases where theDefence maintains that the ASD was not working properly or was not calibrated properly, the onus is on the accused to lead evidencethat there was a "high degree of unreliability with respect to the screening device at the time that it was administered to the accused". [41] Likewise, in R. v. Mastromartino, (ON SC), [2004] O.J.

No. 1435, Durno, J. states at paragraph 79: An officer using an ASD need only have a reasonable belief that the device is properly calibrated and in working order before relying ona "fail" result to confirm his or her suspicions that a driver may be impaired or over the legal limit. There is no requirement the officerknew the calibration setting of the device, when it was last calibrated, or whether the device was in fact working properly: R. v.MacPherson, unreported, released, March 11, 2004 (S.C.J.); R. v. Coutts (1995), (ON CA), 45 O.R. (3d) 288 (Ont.C.A.); R. v. Hill [2001] O.J. No. 4505 (S.C.J.) (QL).

As Moldaver J.A. noted in Coutts at p. 232:

Manifestly, where a roadside test is being used solely for the purpose of confirming or rejecting a police officer's suspicion that amotorist might be impaired or over the legal limit, none of these facts need be proved. It is sufficient if the administering officer believesthem to be true. Where, however, the test result is being offered for the truth of its contents, these facts must be proved by admissibleevidence. [42] In R. v. Robichaud, [2009] N.B.J. No. 144; (2009), 2009 NBQB 146 , 350 N.B.R. (2d) 48, Mr.

Justice McIntyre of theCourt of Queen's Bench stated that, in a trial with respect to an offence under s. 253(1)(b), the Crown does not have to establish that anofficer is qualified to operate the ASD and, likewise, it does not have to adduce evidence with respect to its calibration. [43] In R. v. Martin, 1998 ABPC 162, (1998) 40 MVR (4th) 298 it was held that where the device used was an ASD, and there is noevidence to establish that the officer ought to have doubted the accuracy of the device, the officer is reasonable in believing the devicewas functioning properly.

The officer must testify as to his understanding of what the fail result means, but need not testify as to theaccuracy or operating condition of the machine. This is also in accord with the court’s reasoning in R. v. Gillis, 2006 ABPC 323, 2006 ABPC 323. [44] In R. v. Brown, 2009 ABPC 164 , 2009 ABPC 164 it was held that there is no requirement to prove that an ASD was infact functioning properly, as long as the officer on reasonable and probable grounds believed it was functioning properly. Further, anASD is presumed to be functioning properly in the absence of evidence to indicate otherwise. [45] In R. v.

Dempsey, [2011] N.B.J. No. 92, the accused was charged with having care and control of a motor vehicle while hisblood alcohol level exceeded the legal limit. My colleague, S.M. Hutchinson Prov. Ct. J., summarized as follows: 1. When dealing with the question of the proper functioning of an ASD, it is important to note that the device is merely an instrumentused by a peace officer to confirm or dispel his belief that a drinking and driving offence has occurred; 2.

One of the reasons why there is not a heavier onus on the Crown with respect to proof of the proper functioning of the ASD relates tothe fact that the only criminal sanction that may arise occurs when a person refuses or fails to comply with the demand made by a peaceofficer; 3. In situations where there is no question with respect to a failure to provide breath samples, such as an offence under s. 253(1)(b), apeace officer need only have a reasonable belief that the ASD which he is using is functioning properly.

If the question of functioningbecomes a live issue at trial, then the onus falls on the defence to demonstrate "a high degree of unreliability with respect to theinstrument at the time it was administered to the accused"; 4. In cases where the Crown is proceeding with a "failure to comply with the demand to provide breath samples into the device", theonus is on the Crown to adduce some evidence that the device was functioning properly.

This evidence would be necessary to forecloseany argument that the failure to produce a sample of one's breath is related to any malfunctioning in the device. [46] I should clarify that this is not a case referred to in scenario no. 4 above. Simply put, the Crown is not proceeding with a "failureto comply with the demand to provide breath samples into the device". It follows that, in my view, there is no onus on the Crown toadduce any evidence that the ASD was functioning properly.

Rather, as I see it, the Crown is only required to demonstrate, with respectto reliance on roadside screening tests, that the device used was an ASD, and what the officer understood a “fail” reading on the deviceto mean. Once these prerequisites are met, there is a presumption that the result of the ASD can be relied on.

It then becomes a questionof whether there is any evidence to suggest that the officer knew or ought to have known the device was unreliable. [47] While there may be many reasons that the result of an ASD may be found to be unreliable, without some evidence that any suchreason exists, it is speculative to assert that the ASD may have been unreliable. [48] Turning back to the fact of this case, Cst. MacDonald testified that the device used was an ASD.

He also testified that he formedthe belief that the ASD administered to the accused on the date in question was operating properly amid the “low battery” warningdisplayed. This was of no concern to him. It never shut off while being administered to the accused. The Defence has not led anyevidence that “there was a high degree of unreliability” with respect to the ASD. Consequently, there is no evidence before me, but onlypure speculation, that the ASD was not working properly or was giving inaccurate readings as a result of the “low battery” warningdisplayed.

[ 49 ] I am also of the opinion that the mere fact Cst.

MacDonald brought up the “low battery” warning displayed on the ASD (while administering the test to the accused) in a subsequent conversation with his supervisor does not amount to “ evidence that there was a high degree of unreliability with respect to the ASD ” as discussed in Paradisi nor does it amount to circumstances as discussed in Bernshaw where an officer knew that the test would yield faulty result. [ 50 ] To be clear, with no credible evidence of any problem with the functioning of the ASD, or any other circumstances that might affect the accuracy of the screening test, and in accordance with the principles enunciated in Bernshaw at para. 80 , Cst.

MacDonald was entitled to rely on the accuracy of the ASD result. [ 51 ] Did Cst. MacDonald understand the meaning of a “fail” result into the ASD? He testified that the accused registered a fail into the ASD. He further testified that he understood and believed that if a subject registered a fail, it meant to him that he or she was “driving over the legal limit”. Therefore, as per the reasoning of the Court of Appeal in Harrison , this is evidence that Cst. MacDonald “had formed the belief”, or to use even stronger words, “knew” that the accused’s alcohol concentration “was over the .08 limit”.

In the circumstances, I find that Cst. MacDonald had a subjective belief that the concentration of alcohol in the accused’s body was greater than permitted by s. 253(1) (b), thus satisfying that aspect of s. 254(3) . Reasonable Grounds to make a Breathalyzer Demand [ 52 ] In R. v. Censon i [2001] O.J. No. 5189 , the Court described reasonable grounds as "credibly based probability-reasonable probability". It does not have the rigorous standard of proof beyond a reasonable doubt.

Further, it is not the equivalent of a prima facie case. [ 53 ] The Shepherd case demonstrates a good example of the grounds that are necessary to make a breath demand under s. 254(3) . T he Supreme Court heard an appeal involving a peace officer’s reasonable and probable grounds to make a Breathalyzer demand. The officer noted that Mr. Shepherd looked lethargic, fatigued and had red eyes. He could smell alcohol on his breath. He also noted that his movements and speech were slow and deliberate. On the basis of these observations, the officer formed the opinion that Shepherd was " intoxicated ".

The officer read Shepherd his Charter rights and made a Breathalyzer demand. [ 54 ] The majority decision of the Supreme Court concluded that the trial judge erred in holding that the indicia of impairment did not amount at law to reasonable and probable grounds to make the breath demand. There was ample evidence to support the officer's subjective belief that Mr. Shepherd's ability to drive was impaired by alcohol.

Accordingly, the officer's Breathalyzer demand was lawful. [ 55 ] As indicated earlier, a fail result may be considered along with other indicia of impairment in order to provide a peace officer with reasonable and probable grounds to make a Breathalyzer demand. Normally where a properly conducted roadside screening test indicates a fail result, this alone will be sufficient to furnish the peace officer with these grounds, absent any fact that may render the test results unreliable, such as were demonstrated in Bernshaw . [ 56 ] Again, in the instant case, Cst.

MacDonald testified that he believed the ASD administered to the accused on the date in question was operating properly amid the “low battery” warning noted. He also knew what a fail result meant. With no credible evidence of any problem with the functioning of the ASD, or any other circumstances that might affect the accuracy of the screening test, and in accordance with the principles enunciated in Bernshaw at para. 80 , Cst. MacDonald was entitled to rely on the accuracy of the ASD result. [ 57 ] On the totality of the evidence, I find as a fact that Cst.

MacDonald subjectively believed that the ASD was in good working order and, based on his experience and training, it was objectively reasonable for him to do so. As the ASD was working properly on the date in question, and it registered a fail when the accused provided a sample, Cst. MacDonald formed the belief that he had reasonable and probable grounds to believe that the accused had committed an offence under s. 253(1)

b) and to also read him the Breathalyzer demand. [ 58 ] Cst. MacDonald had also noted indicia of impairment in addition to a fail result into the ASD and, again, I find as fact that he had the requisite reasonable grounds to make a Breathalyzer demand to the accused. I am also satisfied that these grounds were reasonable both subjectively and objectively. [ 59 ] Accordingly, I find that the Defence's arguments that the Breathalyzer demand under s. 254(3) lacked reasonable and probable grounds are unfounded at law and, therefore, they are rejected by the Court. RULING ON THE VOIR DIRE [ 60 ] I find that Cst.

MacDonald subjectively had reasonable grounds to make the Breathalyzer demand. His testimony was honest and reliable and I accept it. Applying the test in Shepherd , I also find that this officer’s reasonable grounds to read the Breathalyzer demand were objectively reasonable.

[ 61 ] I do not find that there was a breach of s. 8 of the Charter . [ 62 ] Consequently, the evidence tendered in the voir dire , and specifically the Certificate of the Qualified Technician, Exhibit “I-1”, is admissible. Dated at Saint John, New Brunswick, on July 22, 2013. ____________________________________ Marco R. Cloutier Judge of the New Brunswick Provincial Court