2011 MBPC 58, 2011 MBPC 58

CITE# 2011 MBPC 58 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) Chantal Boutin, ) for the Crown - and - ) ) Elton Costa Guerreiro, ) Saul Simmonds, Accused ) ) for the Accused ) Judgment delivered: July 25, 2011. ) MICHEL CHARTIER A.C.P.J. [ 1 ] Elton Guerreiro is charged with driving with excessive blood alcohol level, contrary to s. 253(1) (

b) of the Criminal Code , as well as one charge under the Highway Traffic Act for failing to stop at a stop sign. Both charges arise out of an incident which occurred on August 21, 2010. [ 2 ] The issue before the Court, at this stage in the proceedings, is a narrow one; it can be summarized as follows: Did the evidence establish that the “fail” result on the roadside screening test was obtained using an approved screening device as required by

section 254 of the Criminal Code ? [ 3 ] In analyzing this question, I have studied all of the relevant facts and factors which must be considered by me within the context of this matter. [ 4 ] I propose to provide a

summary of the facts relevant to the voir dire followed by a review of the law in relation to the issue in question. My decision on the voir dire will then follow. FACTS [ 5 ] The facts of this case are simple and can be summarized as follows. [ 6 ] The Crown’s only witness, namely R.C.M.P. Constable Tanya Lechelt, testified as follows: ▪ On August 21, 2010 at approximately 4:00 a.m. she was patrolling in East St.

Paul in a marked cruiser car. ▪ She was stopped on North Hill Drive at a three way stop (a “T” intersection as it was described to the Court) when a vehicle driven by the accused approached the intersection and made a right turn without making a complete stop. ▪ Constable Lechelt activated the cruiser’s emergency equipment and made a traffic stop. ▪ She approached Mr. Guerreiro’s vehicle; the driver’s window was already down and she noticed that he had bloodshot eyes and a strong odour of alcohol emanated from the vehicle in which he was the sole occupant. ▪ Suspecting that Mr.

Guerreiro had consumed alcohol she detained him for the purposes of obtaining a sample of his breath; Mr. Guerreiro agreed to provide the sample and was taken to the back of the cruiser for this purpose. ▪ Constable Lechelt read the screening demand to the accused and explained the process to him in detail. ▪ Constable Lechelt testified that she was using a Dreger Alcotest 7410, an approved screening device; was satisfied that it was in operational order and conducted the test.

The accused blew a “fail”, was placed under arrest for driving with an excessive blood alcohol level and was taken to the detachment where he ultimately gave two breath samples into a BAC Datamaster; both readings were .09. [ 7 ] On cross-examination, Constable Lechelt testified as follows: ▪ She had been stationed at the East St. Paul R.C.M.P. detachment since June 26, 2010.

▪ She confirmed that the approved screening device used by her on the morning in question was a Dreger Alcotest 7410. ▪ During her time at the detachment prior to the traffic stop and since her transfer she had perused the “detachment file” relating to the BAC Datamaster but had not seen a certificate of approved instrument in relation to both the BAC Datamaster and the Dreger Alcotest 7410. [ 8 ] The only other evidence on the voir dire came from Dr. Arthur Kraut.

This witness was tendered as an expert by the defence in the areas of roadside screening devices and the operation and use of approved screening devices. His qualifications were not the subject of a contest by the Crown. Dr. Kraut testified that: ▪ Dreger manufactures a number of different models of roadside screening devices. He confirmed that the software inside each of these models is different; that the software determines the output of the results. Ultimately, the software determines the reliability of the results. ▪ Dr.

Kraut confirmed that not all of the Dreger roadside screening models are “approved screening devices”. The Canadian Society of Forensic Science Alcohol Test Committee makes recommendations to the Federal Government regarding what models of roadside screening devices should be and can be used as approved instruments. These recommendations follow detailed studies and vigorous testing. To be used for “legal purposes” it is important to ensure that the approved devices are both accurate and reliable. ▪ Dr.

Kraut confirmed that Dreger makes the following models of roadside screening devices: ➢ Alcotest 7410 GLC (an approved screening device for the purposes of

section 254 of the Criminal Code ); ➢ Alcotest 7410 PA 3 (an approved screening device for the purposes of

section 254 of the Criminal Code ) ; ➢ Alcotest 7410 Plus RS (non-approved screening device); ➢ Alcotest 7410 Plus (non-approved screening device); ➢ Alcotest 7410 (non-approved screening device). ANALYSIS [ 9 ] Where the accused objects to the admissibility of the results of the analysis pursuant to s. 8 of the Charter that the constable lacked reasonable and probable grounds to make the demand, the burden is on the Crown to establish the requisite grounds. [ 10 ] Reasonable and probable grounds involve an objective and subjective test.

Where the grounds depend upon a “fail” from an approved screening device, which is the case in the circumstances, the Crown must prove that the officer reasonably believed that she was using an approved device. [ 11 ] Crown counsel argues that in the absence of credible evidence to the contrary, the officer’s testimony that she made a demand with an approved screening device is sufficient evidence that the officer had the requisite belief.

Crown counsel submits that obvious errors such as an incomplete reference to the model number do not undermine the officer’s evidence that the device was an approved screen device. The cases of R. v. Gundy (2008), 2008 ONCA 284 , 231 C.C.C. (3d) 26, 235 O.A.C. 236 (Ont. C.A.) and R. v. Tronrud 2008 MBPC 23 , 230 Man.

R. (2d) 319, were filed by Crown counsel in support of this proposition. [ 12 ] Defence counsel argues that the evidence cannot support that this was a misdescription in relation to the device or that it was an innocent transposition of numbers or letters and that the constable’s assertion that the device was an approved device cannot be held to be sufficient proof. [ 13 ] The case at bar is distinguishable from both the Gundy and Tronrud cases referenced earlier. In Gundy , the police evidence regarding the device was that it was an “Alcotest and that it was approved”.

Further, police had not been challenged by defence at trial in relation to the officer’s ability to reasonably believe that he was using an approved device. That is not the case here. [ 14 ] Constable Lechelt described the model used in detail in that it was an Alcotest 7410. This was confirmed by her on cross- examination. The model described exists and the model described is not an approved screening device for the purposes of

section 254 of the Criminal Code . [ 15 ] We are not dealing with a misnomer; we are not dealing with an innocent transposition of numbers or letters. [ 16 ] During Constable Lechelt’s six weeks at the detachment since her transfer to East St. Paul she took no reasonable steps to satisfy herself that the equipment that she was using fits the regime dictated by the Criminal Code .

One must not confuse “belief” with “reasonable belief”. [ 17 ] With the foregoing as a backdrop the Court cannot simply rely on the constable’s assertion that the device was approved. [ 18 ] I conclude, therefore, that the police violated Mr. Guerreiro’s rights under s. 8 of the Charter . “Original Signed By” MICHEL CHARTIER, A.C.P.J.