R. v. Monsivais, 2012 ONCJ 106

Citation: R. v. Monsivais , 2012 ONCJ 106 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — VICTOR M. MONSIVAIS Before Justice Chapin Heard on Thursday, December 22, 2011 Reasons for Judgment released on Wednesday, February 29, 2012 Mr. Lerner ................................................................................................................ for the Crown Mr. Stanford ................................................................................. for the accused Victor Monsivais CHAPIN J.: Introduction [ 1 ] Mr.

Monsivais is charged with driving a motor vehicle on June 4 th , 2010 in the City of Toronto while the concentration of alcohol in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood. [ 2 ] The Crown called two witnesses and the defence did not call any evidence. The issue is whether or not the requirement that police made a demand of the accused to provide samples of his breath that would enable a qualified technician to determine the concentration of alcohol in the person’s blood, once they have reasonable grounds to do so, has been satisfied. P.C.

Scott Surridge [ 3 ] Police constable Scott Surridge testified that on June 4 th , 2010 he was working in uniform driving a marked police scout car on traffic patrol. He was travelling north on Dovercourt Road, in the city of Toronto with his escort, Philip D’Souza, who was in the passenger seat. As he was approaching Dupont Street he observed a motor vehicle travelling southbound on Dovercourt Road at a high rate of speed. [ 4 ] Officer Surridge decided to pull over the vehicle as it was speeding, going 62 kph in a 40 kph zone.

He did a u-turn in order to follow the vehicle and activated the roof lights on the police car. At this point the car sped up, but the driver later slammed on the brakes and came to a sudden stop at a red light at Dovercourt Road and Hallam Street. P.C. Surridge got out of his car and saw that the car had begun to roll forward. He yelled at the driver to stop. The driver complied and stopped the vehicle at 1:56 a.m. [ 5 ] Although the car stopped, the tail lights were illuminated as if the brake was still being applied.

The car was part-way through the intersection and Officer Surridge approached the driver and saw a white male whom he identified as the accused before the court. He yelled at the driver to put the car in park and the accused complied. The car was still in the intersection at this time. Officer Surridge demanded Mr. Monsivais’ ownership, insurance and driver’s licence. The accused pulled out a wallet and produced a health card. Officer Surridge leaned down and told him it was a health card and Mr. Monsivais said he was sorry.

At this point Officer Surridge could smell alcohol on his breath and asked him if he had consumed alcohol. Mr. Monsivais said that he had consumed one glass of wine and handed Officer Surridge his Ontario driver’s licence. [ 6 ] At 1:58 a.m. Officer Surridge read the approved screening device demand to Mr. Monsivais as he suspected that the accused had alcohol in his body then asked him to accompany him to facilitate the approved screening device test.

Officer Surridge went to the passenger side of the scout car and explained to the accused that the device was used to measure alcohol in the blood, and that he had to blow into the mouthpiece with constant breath and must continue blowing until he was advised to stop. The device the officer used that night was a Dragar Alcotest 7410GLC serial #ARFJ0201 and it had been calibrated on February 25 th, 2010.

The officer explained that if someone had less than 50 milligrams of alcohol in 100 millilitres of blood a number between 0 - 49 would appear on the display screen, if the breath tested between 50 - 99 millilitres of alcohol in 100 millilitres of blood an “A” for alert would be displayed on the screen. If the breath tested over 100 millilitres of breath in 100 milligrams of alcohol an “F” for fail would be displayed on the screen.

[ 7 ] Officer Surridge handed Mr. Monsivais a fresh mouthpiece that was sealed. Mr. Monsivais attempted to open the package and dropped the mouthpiece. Officer Surridge handed him a second mouthpiece that was sealed and the accused dropped it again. A third mouthpiece was given to the accused and he was able to open it. [ 8 ] Officer Surridge told him to blow through the mouthpiece and observed condensation inside the mouthpiece.

The officer could also feel air coming through the other end of the mouthpiece, indicating that the mouthpiece was in good working order. [ 9 ] Officer Surridge noted that the smell of alcohol from the breath of the accused got stronger at the time he was blowing through the mouthpiece. Officer Surridge directed the accused to put one end of the mouthpiece into the approved screening device and told him to create a tight seal with his lips. The accused did so and blew into the device but stopped too soon and the device showed an error.

Officer Surridge reset the device and told the accused to take a second breath and blow into it. Mr. Monsivais did blow into the device but, again, stopped blowing too soon despite the officer’s instructions to keep going. Officer Surridge cautioned him and the accused apologized. [ 10 ] Officer Surridge told the accused to blow again and Mr. Monsivais put the entire mouthpiece in his mouth. At that time, 2:04 a.m., P.C. D’ Souza stepped in and took a new mouthpiece, unwrapped it, and showed the accused how to put it into the device and blew in it. The accused was given a new mouthpiece which he unwrapped.

This time he provided an adequate sample and the device registered an “F” for fail. As a result Officer Surridge arrested him for operating a motor vehicle with excessive alcohol in his blood and handcuffed him to the rear. [ 11 ] Officer Surridge searched Mr. Monsivais and located a glass in his pocket which contained a liquid that smelled like alcohol. He believed it to be beer. Officer Surridge placed it on the sidewalk, and his escort dealt with it. The accused was put into the rear of the scout car and was given his rights to counsel, which Officer Surridge read from the back of his memo book.

Officer Surridge asked him if he understood and he said “no”. Officer Surridge explained that he was over the limit and that he was being arrested for that because he had been operating a motor vehicle. Officer Surridge asked him again if he understood and if he wanted to call a lawyer and he said he “didn’t’ know”. The officer also advised him that he was entitled to assistance from the free legal aid duty counsel program but the accused said that he wasn’t sure if he wanted that assistance. [ 12 ] P.C. Surridge stood by and waited for a tow truck until P.C.

Arzaia arrived to take over that task. [ 13 ] At 2:14 a.m. the officers left the scene with the accused and arrived at the station at 2:24 a.m. At 2:26 a.m. the accused was paraded before Sgt. Reynolds and was taken to room five where he decided to call duty counsel. Duty counsel called back at 2:57 a.m. and at 3:05 a.m. the call was finished and P.C. Surridge brought Mr. Monsivais to P.C. Calley, who was the qualified breath technician on duty that day. The first test was completed at 3:16 a.m. and resulted in a reading of 165 milligrams of alcohol in 100 millilitres of blood.

The second test was completed at 3:37 a.m. and resulted in a reading of 165 milligrams of alcohol in 100 millilitres of blood. At 4:42 a.m. the accused was released on a form 10 after he was served with a copy of the Canada Evidence Act Notice and Certificate of a Qualified Breathalyser Technician. The Certificate and Notice were marked as exhibit ‘A’ in this proceeding. [ 14 ] Counsel for Mr. Monsivais decided not to cross-examine Officer Surridge.

After counsel had advised the court of this, the Crown sought to leave to recall Officer Surridge to refresh his memory regarding conversations with other officers after playing the video regarding the demand. The Crown had not played the video in the examination in chief. I did not allow the crown to recall the witness as it would essentially amount to a re-examination of the witness and did not meet the test as there was no cross-examination to explain or clarify and there was no right to introduce new evidence in re-examination. P.C. D’Souza [ 15 ] P.C.

D’Souza testified that on June 4, 2010 he was working the night shift along with P.C. D’Souza doing a general traffic patrol. At 11:50 p.m. they were northbound on Dovercourt Road in a scout car that was equipped with a mobile radar device. His escort was driving and he was watching the speed of traffic coming towards them. They stopped at the signal light at Dovercourt Road and Dupont Street. As the light turned green Officer D ‘Souza observed headlights coming towards their car southbound on Dovercourt Road and the radar indicated a speed of 62 kph in a 40 kph zone. His escort, P.C.

Surridge, activated the emergency equipment and made a u-turn to follow the vehicle. [ 16 ] The vehicle stopped at the intersection of Dovercourt Road and Hallan Street and he and his escort got out of their vehicle. The car was a red convertible and although it was stopped it was straddling the lanes and started to roll forward as they were walking towards it. His escort yelled at the driver to “Stop” and the driver stopped the car with his brake. P.C. D’Souza approached the passenger door and saw that the vehicle was still in gear and that Mr. Monsivais’s foot was on the brake. [ 17 ] His escort, P.C.

Surridge, asked the accused to put the car in park and to turn off the ignition. P.C. Surridge advised P.C. D’Souza that he could smell the odour of an alcoholic beverage on the breath of Mr. Monsivais. P.C. Surridge explained the approved screening device test to the driver and P.C. D’Souza saw the accused drop two mouthpieces on the ground before he started trying to give a sample into a third mouthpiece. At this point P.C. D ‘Souza stepped in and demonstrated how to provide a proper sample. The accused tried again but was still having trouble so P.C.

D’Souza showed him one more time and at 2:04 a.m. the accused provided an adequate sample that resulted in a reading of “F” on the screen of the approved screening device. At 2:05 a.m. he was arrested for the offence of driving a motor vehicle while have an excessive amount of alcohol in his blood. [ 18 ] P.C. D’Souza observed his escort providing the rights to counsel to the accused and also saw him search him. P.C. Surridge located a pint glass in the right pocket of his jacket which was ¼ full and appeared to be beer. P.C. D’Souza wrapped the glass in paper towel and placed it on the sidewalk.

Another unit was called to standby to ensure that the vehicle was towed and when it arrived at 2:14 a.m., they proceeded to the station with the accused. They arrived at 2:24 a.m. and the accused was paraded shortly after and was presented to the qualified breathalyser technician at 3:05 a.m. Two readings were taken and at 4:32 a.m. he was released on a promise to appear. Position of the Parties

The Crown Position [19] The position of the Crown is that no specific wording is required when an officer is making a demand and submits thatthe accused was aware that he was not entitled to leave and that he had to go with the officers. The Crown did concede that the caseagainst Mr. Monsivais was weak. The Defence Position [20] Counsel for Mr. Monsivais agreed that there is no specific wording for a demand but submits that the spirit of a demandmade pursuant to section 253(3) of the Criminal Code must be complied with.

He submits there was no evidence of any formal demandand no evidence that either of the officers explained that the accused was required to go to the police station to provide breath samples. [21] Counsel relied on a number of authorities in support of this position. In R. v. Charette 2009 ONCA 310 , [2009]O.J. No. 1506 the Ontario Court of Appeal considered two separate cases where the accused (Charrette and Tran) were convicted of theoffence of “over 80” together as this was a common legal issue.

As in this case, the issues dealt with three provisions of the CriminalCode, s. 254(3) which sets out the demand an officer can make to an accused to provide breath samples if he or she has reasonable andprobable grounds to suspect that an offence under

section 253 has been committed within the preceding three hours. Section 258(1)(c)which relieves the Crown from having to prove that the accused’s blood alcohol level at the time of the offence was the same as at thetime of testing, provided that certain conditions have been met. This presumption has been referred to as the “presumption of identity”. Ifthe presumption of identity is not available, then the blood alcohol level of the accused must be proven in another way.

And, 258 (1) (g)of the Criminal Code which allows the Crown to introduce breathalyser certificates as prima facie proof of the facts contained within thedocuments without having to prove the signature or the official character of the person signing the certificate, and is referred to as thepresumption of accuracy. [22] In both cases the trial judges had found that the officers did not have reasonable and probable grounds to make thedemand for breath samples, but, as there was no Charter application in either case, the trial judges felt compelled to apply the principlein R. v.

Rilling (1975), (SCC), 24 C.C.C. (2d) 81, a pre-charter case, which held that in a charge of “over 80” theabsence of reasonable and probable grounds to make the breath demand did not render a breath certificate inadmissible where thedemand had been complied with. [23] Both Charette and Tran applied to the

Summary Conviction Appeal Court and their appeals were held together. TheSummary Conviction Appeal Court declined to apply Rilling and the appeals were allowed and new trials were ordered. [24] The Ontario Court of Appeal reversed the

Summary Conviction Appeal Court. In para. 30 of the decision JusticeMoldaver, writing for the majority, said: Turning to the issue at hand, I wish to emphasize that on these appeals, we are not concerned with the Charter or anyremedies that might be available under it; rather, the issue is whether, in the absence of a Charter application, the Crown may rely on thepresumption of identity where samples of breath have been provided pursuant to a demand under s. 254(3) in circumstances where theofficer making the demand did not have reasonable and probable grounds for doing so.

I leave for another time whether the presumptionof identity might factor into the s. 24(2) analysis, if at all, where an accused has challenged the admissibility of the test results and thecourt has found a s. 8 Charter breach on the basis that the arresting officer did not have reasonable and probable grounds to make thedemand.

I also leave open the question whether an accused who seeks to prevent the Crown from relying on the presumption of identitycould possibly seek relief under s. 24(1) of the Charter where a s. 8 breach has been established but the evidence of the test results hasbeen admitted under s. 24(2). [25] The court went on to find that given that there were no Charter considerations, Rilling continues to bind the court andfound favour of the Crown with respect to both cases and restored the convictions. [26] In R. v. Pickles (ON CA), [1973] O.J.

No. 23 (ONCA) the issue was whether or not the certificate ofanalysis could be admitted into evidence in an “over 80” trial. The court determined that the certificate could not be admitted intoevidence unless there was a demand made and a sample was taken from the accused. Because both had occurred in that case the courtallowed the crown appeal and remitted the case back to the Provincial Court Judge to admit the certificate and to complete the trial. [27] In R. v. Walsh [1980] O.J. No. 809 (Ont. Sup.

Ct. - Ct. of App.) the court was considering an appeal of an over 80 casewhere the defence contended that the certificate of analysis should not have been admitted into evidence because (1) there was noevidence upon which the trial judge could find that the qualified technician formed an opinion that he received the samples of theappellant’s breath as were necessary to enable a proper analysis to be made and (2) that what was tendered and accepted into evidencewas a carbon copy of the original certificate of analysis. [28] The court referred to and agreed with the statement in Pickles that there are “two conditions precedent to the admissibilityof the certificate to be satisfied: (1) that a sample of the breath of the accused was taken, and (2) that it was taken pursuant to a demandunder s. 235(1) - and that these have to be proven by evidence extraneous to the contents of the certificate.” [29] The court considered the appellant’s submission that the amendment to s. 235(1) in 1974 introduced a “third conditionprecedent that the qualified technician received such samples of an accused’s breath as in the technician’s opinion are necessary toenable a proper analysis to be made.” The Court found that this was not a condition precedent but was something that was implicit in thereasoning in Pickels that “a qualified technician’s certificate will not be forthcoming for the purpose of being tendered as evidence,unless that technician is satisfied that it is based on a suitable sample.” The court also noted that if that was a requirement that thequalified technician would be required to testify at every trial to state that the samples were necessary to enable a proper analysis to bemade.

[30] With respect to the second ground of appeal the court found that the carbon-copy admitted into evidence was an originalfor the purposes of section 237(5) and that it did not matter that it was not the “top copy” and that what did matter was that it wascomplete in every respect and had been signed. [31] In R. v. Ovchinikov, [2008] O.J. No. 5959 (O.C.J.) the accused was charged with impaired driving and over 80. This wasthe first arrest of Officer Moores without the assistance of another officer. He had been an officer for two years as of the time of thearrest.

The defence argued that the certificate of analysis should not be admitted because the Crown had failed to prove that the testswere taken pursuant to a demand made under s. 254(3) of the Criminal Code and had failed to show that the tests were taken as soon aspossible. [32] This case is somewhat similar to the case at hand. The Officer made an approved screening device demand instead of anapproved instrument demand. The Crown in that case argued that the accused was aware that he had to provide samples of his breathand submitted that the test results should be admitted.

Justice Taylor referred to Justice Hill’s judgment in R. v. Nasir, [1988] O. J. No.2166 which in turn referred to the Pickles decision. Justice Hill found that a condition precedent of admissibility of the certificate ofanalysis for the truth of its contents is proof that the technician acted pursuant to a lawful demand. [33] Justice Taylor also referred to several authorities for the proposition that a demand need not use particular words and thatthe trial judge should use a flexible yet functional approach and take into account the entirety of the circumstances. See R. v. Khawaja,[2006] O. J.

No. 4021 (O.C.J.), R. v. Ghebretastiyoss, [2000] O.J. No. 4982 (S.C.J.) and R. v. Humphrey, (ON CA),[1977] O.J. no. 1148 (O.C.A.). [34] Justice Taylor concluded that the certificate was not admissible in paras. 30 - 32 as follows: 30 "The effect of 237 (now 258) both before and after the amendment is to establish the conditions under which the certificate of aqualified technician is admissible, without further evidence, as proof of the proportion of alcohol in the blood of the accused. Theseprovisions are obviously designed to assist the Crown in proving its case.

They serve to restrict the normal rights of the accused to cross-examination and saddle him with the burden of proving that the certificate does not accurately reflect his blood alcohol content at thetime of the alleged offence, they're to be strictly construed and, where ambiguous, interpreted in favour of the accused." 31 I am persuaded by their logic. The focus on the approved screening device demand, that is, that the accused knows they have toprovide a sample of their breath and that it's not a voluntarily exercise are completely different from the conditions precent set out in s.258.

A valid Intoxilyzer demand is a condition precedent to the Crown being allowed to take advantage of the evidentiary shortcut orpresumption contained in s. 258. 32 Constable Moore is clear and unambiguous in his evidence that he never made an intoxilyzer demand. He made the approvedscreening device demand. The failure of the Crown to prove the condition precedent results in the certificate being inadmissible. TheCrown could, of course, have called the technician but chose not to.

There's no admissible evidence to the accused blood alcoholconcentration at the time he was in care and control of the motor vehicle, and as a result he's entitled to an acquittal. [35] In R. v. Kagayalingam, 2006 ONCJ 196 , [2006] O. J. No. 2201 (O.C.J.) the accused was charged with impaireddriving.

The officer mistakenly made an approved screening device instead of a breath sample demand. [36] In that case the Crown conceded that the officer made the wrong demand but argued that while the form of the demandwas technically incorrect it was still a proper demand as the officer conveyed the essential information to the defendant. That is, that hewas required to accompany the officer to the police station and provide samples of his breath. The Crown also cited Rilling as authorityfor the proposition that even if the demand was invalid the breath results should be admitted.

The Crown further submitted that the onlyavenue for exclusion of the evidence would be a successful application under sections 8 and 24(2) of the Charter. [37] In para. 8 of that decision Justice Lipson noted the differences between the approved screening device demand and theapproved instrument demand as follows: 8 The approved screening device demand and the approved instrument demands are very different except for the fact that pursuantto both demands, the detainee is required to provide one or more samples of his or her breath.

A plain reading of the relevant sectionsreveals clear differences between the two demands. Each demand has a different purpose. Each demand involves the use of a differentinstrument. Under s. 254(2) the officer need only suspect that the accused has alcohol in his body in order to make the demand. Under s.254(3) the officer must have formed reasonable and probable grounds that the accused has committed the offence in

section 253.Another important difference between the two demands is that the person subject to the approved instrument demand should be advisedthat samples of his or her breath are required to be given to a qualified person who can determine the concentration of alcohol in his orher blood.

Persons unfamiliar with the two different demands would not be in a position to infer that being given the "the breath demand"carries with it the assurance that a qualified technician will conduct the tests. [38] Justice Lipson concluded in par. 13 that Rilling dealt with a different factual situation as in that case there was an absenceof reasonable and probable grounds for the demand and in the case he was dealing with there was an absence of a 254(3) breath demand,one of the codified preconditions in s. 258(1) (

c) for the admissibility of the test results and the evidence was not admitted. [39] In R. v. Killen, [2006] O.J. No. 4592, an officer stopped a driver who had been observed by a civilian witness who calledpolice. The police went to the driver’s residence and spoke with him and placed him under arrest.

The accused had asked him why hewas being taken away when he hadn’t even been given a breathalyser and the officer said that was why they were going to the station. [40] Once the Officer was at the station with the accused, and after he had called duty counsel he realized that he had failed tomake the breath demand. The Officer subsequently made the demand prior to duty counsel returning the call. The trial judge referred toJustice Blacklock’s decision in R. v. Palanacki, [2001] O.J. No. 6254 where an officer had admitted that he could not remember exactlywhat he had said to the accused at the side of the road.

The best he could recall was that he told the accused they were going to 12division to blow into a breathalyser which measures how much alcohol “you have in you”. The trial judge found that the information

provided to the accused in this case was even less than that provided in the Palanacki case and was not satisfied that there was a demand made by a police officer at the defendant’s home before he was transported to the station. [ 41 ] The trial judge also found that because of the 25 minute delay, the demand was not made forthwith or as soon as practicable. In conclusion the trial judge referred to paras. 25 through 28 of the Palanacki decision in finding that the Crown was not entitled to rely on the presumption set out in section 258(1)(

c) and that no prima facie case had been established. Those paragraphs read as follows: 25 In the end, however, I have decided to accept Mr. Justice Toy's reading of Rilling as advanced in McLellan. In that case he suggested that the majority judgment in Rilling should be viewed as being confined to a holding that it did not matter in considering the applicability of the provisions of the current

Section 258, what motivated the police officer's demand. Mr. Justice Toy appears to concede that Rilling stands for the authority that an illegally obtained sample is admissible in common law. He also holds, however, that this does not mean that the provisions with authorize the evidentiary shortcuts inherent in what would be the current

Section 258 can be invoked without compliance with the necessary prerequisites of what would now be 258(1)(

c) and (g). Mr. Justice Toy held that the majority judgment and the dissent in Rilling differ only on what are the elements of a demand under the current Section 254(3), for the purposes of the current Section 258(1)(

c) and (g). 26 In his view, the majority in Rilling should be read as holding, that the grounds that the officer had with respect to whether or not a drinking/driving offence had been committed within the relevant time period, was a matter that went to the issue of his motivation for the demand. While the absence of reasonable grounds would mean that the obtaining of the sample was not authorized in law, this did not mean that a demand within the meaning of Section 254(3) had not been administered for the purposes of the current 258(1)(

c) or (g). 27 Justice Toy took the view, however, that the timing of the demand, as opposed to the grounds for its making was a matter that went to the question of whether or not the demand was one within the meaning of 254(3) for the purposes of the provisions of the current 258. 28 In light of my preference for Justice Toy's approach to this issue and in light of the conclusions that I've articulated above with respect to whether or not I am satisfied that there's a 254(3) demand in this case, I have come to the conclusion that the breath certificate is not admissible in these proceedings. As a result, Mr.

Rosenthal is entitled to succeed on his motion for a directed verdict on the over 80. Conclusion [ 42 ] After a review of the authorities, I find that I am persuaded that a proper demand made pursuant to section 254(3) is a condition precedent to the admissibility of the certificate of analysis of the qualified breathalyser technician. After Mr. Monsivais had registered a fail on the approved screening device it was incumbent on one of the officers to make a proper demand. I agree with Justice Lipson’s comments that a demand made under section 254(2) is quite different than a demand made under s 254(3).

This is not even a situation where there was recognition on the part of the officer that a mistake had been made and there was no attempt to correct it. As a result the certificate is not admissible and the Crown cannot rely on the presumption in s. 258(1)(g). [ 43 ] An acquittal will be entered. Released: Wednesday, February 29, 2012 Signed: “Justice L. Chapin