R. v. Costa, 2010 ONCJ 171

COURT FILE No.: Toronto Region, Metro North Court DATE: 2010·04·26 Citation: R. v. Costa , 2010 ONCJ 171 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — SALVADOR COSTA Before Justice Leslie Pringle Heard on April 14, 2010 Reasons for Judgement released on April 26, 2010 Mr. J. Canton for the Crown Mr. J. Rabinovitch for the accused Salvador Costa PRINGLE J: 1. Overview [ 1 ] Salvador Costa is charged with driving with excess alcohol in his system on June 7, 2009. His lawyer raises two issues: 1. that Mr.

Costa’s rights under s.8 of the Charter were violated because the officer did not have reasonable grounds to arrest him, and the ensuing breath samples should be excluded pursuant to s.24(2); 2. that even if the breath samples are admissible, the expert report of the Crown’s toxicologist should not be accepted because it depended upon a fact that was not proven at trial, that is it depended on the fact that there was “no consumption of large quantities of alcoholic beverages shortly prior to the incident”. [ 2 ] The case proceeded by way of a blended trial and Charter hearing, with the Crown calling the arresting officer, Detective Iancu, as well as the qualified breath technician, Detective Chin.

Since the breath samples were not taken until after the expiry of the two hour window of opportunity set out in s.258(1) (

c) of the Criminal Code , the Crown tendered the report of forensic toxicologist Justin Hinman, indicating that Mr. Costa’s blood alcohol content at the time of driving would have been between 135 to 185 mg of alcohol in 100 ml of blood. [ 3 ] The defence called no evidence on the Charter hearing or the trial itself. [ 4 ] I have determined that both grounds raised by the defence must succeed.

2. Reasonable Grounds to Arrest i. The evidence [ 5 ] Detective Iancu saw Mr. Costa driving south bound on Dufferin at about 9.09 p.m. Mr. Costa appeared to be speeding, and his headlights were off. As a result, Detective Iancu pulled him over and asked for his documents. As he interacted with Mr. Costa, the officer smelled a strong odour of alcohol in the car and on Mr. Costa’s breath. He also noted that Mr. Costa had glassy bloodshot eyes and had difficulty communicating. He believed that Mr. Costa spoke Portugese, and with the assistance of the passenger (who seemed sober), Detective Iancu asked Mr.

Costa if he had been drinking and he said he had two glasses of wine at dinner. [ 6 ] Based on this interaction, Detective Iancu said that he “formed the opinion that the male was driving with higher than 80 mg of alcohol in 100 ml of blood”. However, instead of arresting Mr. Costa, he requested that a roadside device be brought to the scene. [ 7 ] Detective Iancu explained that even though he believed Mr. Costa’s blood alcohol content was over the legal limit, he requested a roadside device just to be sure.

He believed that this test had to be done in accordance with Ontario law, and he said it was a police procedure that he followed. In his view, he couldn’t arrest a person without giving them an opportunity to do the roadside test first. [ 8 ] When the device arrived about five minutes later, Detective Iancu noted that it was a “Drager Alcotest 740 GLC”, last calibrated on May 28, 2009. He tested the device in accordance with his training, and he said he had no reason to believe it wasn’t working properly. [ 9 ] Mr.

Costa made two attempts to provide a sample, both of which resulted in an error message, which Detective Iancu said was an “E” displayed on the screen of the device. He stated that there was no number after the “E”, and he said he was not familiar with any other error readings. To him, an “E” indicated that the person was not blowing properly. He had no knowledge of other error codes, and explained that in his view, if a device was not working properly, it would not have been brought to the scene. [ 10 ] On the third attempt to blow into the device, Mr.

Costa was successful in providing a sample and the device registered an “F”. Detective Iancu believed that as a result, Mr. Costa in fact had a blood alcohol content of over 80 mg of alcohol in 100 ml of his blood, and he arrested him. [ 11 ] Detective Chin is a qualified breath technician. He testified that Mr. Costa gave two suitable samples of breath at the police station, one at 11.33 p.m. with a reading of 148 mg of alcohol in 100 ml of his blood, and the other at 11.53 p.m. with a reading of 137.

Detective Chin did not issue a certificate because the tests were taken more than two hours after driving, and he explained this to Mr. Costa with the assistance of a Portugese speaking officer. Detective Chin said that he understood the delay in taking the samples was due to the need to get a Portugese speaking officer to explain the process to Mr. Costa. [ 12 ] Detective Chin testified that he was somewhat familiar with the approved screening device, and he also referred to his training manual to answer some of the questions put to him by defence counsel.

He confirmed that the approved screening device has a number of different error readings, displayed as E0 to E6. E0 indicates that there is a problem with insufficient air flow because the test subject is not blowing evenly or hard enough. E1 to E6 are an indication that there is an error with the sensor reading, the calibration or the device. If the error message from E1 to E6 persists after certain remedies have been attempted, the training manual tells the officer to return the device to Drager, (the manufacturer). 2. Analysis [ 13 ] Detective Iancu’s grounds to arrest Mr.

Costa were based on his understanding of the results of the roadside breath testing, and he agreed that he would not have arrested Mr. Costa in the absence of the “F” or “fail” on that test. The issue is therefore whether he had both a subjective and objective basis to rely on the device: in the absence of reasonable grounds the arrest would be unlawful and the subsequent taking of the breath samples would be a violation of s.8: see R. v. Mandarino, [2010] O.J. No. 856 (C.A.) , upholding

Thorburn J.’s decision at [2008] O.J. No. 771 (S.C.J.) ; and R. v. Topaltsis, 2006 CanLII 26570 (ON CA) , [2006] O.J. No. 3181 (C.A.) [ 14 ] Detective Iancu believed that the device was in proper working order and believed he had subjective grounds upon which to make an arrest. Of course, there must also be an objective basis for the officer’s opinion, although this is not an onerous threshold: see R. v. Censoni, [2001] O.J. No. 5189 (S.C.J., Hill J.) [ 15 ] On behalf of Mr. Costa, Mr.

Rabinovich submits that there are three reasons to be concerned about Detective Iancu’s faith in the device: 1. the officer twice indicated in his notes and repeated in his evidence that the device used to test Mr. Costa was a Drager Alcotest “740” GLC, which is not an approved device; 2. he was unfamiliar with the error codes on the device that he was using, and was therefore unable to explain whether the errors generated by Mr.

Costa’s failed attempts were related to the device or not; 3. he thought he had no power to arrest someone whom he believed had a blood alcohol content of over 80 without a roadside test. [ 16 ] I will address each of these in turn. [ 17 ] On behalf of the Crown, Mr. Canton submits that I can infer that Detective Iancu’s notes referring to the Drager Alcotest “740” GLC were a mistake, since the Criminal Code makes reference to an Alcotest “7410” GLC which is an approved device. Mr.

Canton also says that I can consider the totality of the evidence and conclude that the device was indeed an approved one in this case: see R. v. Gundy , 2008 ONCA 284 (CanLII) , [2008] O.J. No. 1410 (C.A.) . [ 18 ] I agree. Detective Iancu said that the device was calibrated and he referred to it as “approved”. On several occasions throughout his testimony he also made reference to the “approved instrument demand” that he made to Mr. Costa.

Further, his description of the device was so close to that of the approved device in the Code that I can infer he simply made a mistake (albeit twice), when he wrote it down in his book. Based on the totality of the evidence, I think it’s clear that it was an approved device that was brought to the scene. This, on its own, would not cause me to question the officer’s evidence regarding the device. [ 19 ] The officer’s mistake with the error codes is more problematic.

While Detective Iancu believed the device was working properly, he also understood that the only error that could occur was due to insufficient air provided by Mr. Costa, which he understood would always display as an “E” on the screen. This was incorrect. As Detective Chin testified and the training manual confirmed, there are a total of seven error codes, displayed as E0 through E6, each relating to a different error. Further, although E0 relates to insufficient air (likely relating to a problem with blowing by the test subject), the remaining six codes are all related to a problem with the device itself.

According to the training manual, if an error E1 through E6 cannot be remedied by some simple steps (such as turning the device off and then on again), the device needs to be returned to the manufacturer. [ 20 ] The officer testified that Mr. Costa made two failed attempts to provide a sample, and that an “E” was twice displayed on the device. Detective Iancu did not note down the error message from the screen. He stated that the problem related to Mr. Costa’s failure to blow properly, however he mistakenly believed that all errors related to a problem with the test subject.

Moreover, he provided no additional evidence here that would assist me in determining whether Mr. Costa was creating a problem by, for example, blowing too lightly or blowing without a tight seal. [ 21 ] Detective Iancu’s belief that the only error code was “E”, and his failure to note down the number after the “E” reading means that the true nature of the errors is unknown.

As a result, it’s quite possible that the errors related to E1 to E6, meaning there was an error related to the device. [ 22 ] Detective Iancu was not knowledgeable about the device that he was using and he was incorrect in his understanding of the potential errors that could be generated. Since his assumptions were mistaken in important respects, this undermines the reliability of his evidence regarding the device. [ 23 ] I am also concerned that Detective Iancu understood that he was required by law to test every suspect with a roadside testing

device, regardless of his belief that they had over 80 mg of alcohol in their system. This is simply wrong. It is well established law that where an officer reasonably believes that a person has over 80 mg of alcohol in 100 ml of blood, they may arrest the person and make a demand for a breath sample: see s.254(3) of the Criminal Code , and see the Supreme Court of Canada to this effect in R. v. Bernshaw, 1995 CanLII 150 (SCC) , [1995] 1 S.C.R. 254 and more recently in R. v. Shepherd, [2009] S.C.R. 527.

To be clear: there is no legal obligation to use the roadside testing device if there are grounds for an arrest and a demand: see Censoni (cited above) at para. 50. [ 24 ] I find that the cumulative effect of the errors revealed in Detective Iancu’s evidence undermine the reliability of his understanding of the device. In particular, I am concerned that his incorrect understanding about the potential for error influenced his subjective belief that the device was working.

Moreover, the lack of evidence before me regarding the error codes means it is impossible to know the nature of the two errors, and therefore to assess the objective reasonableness of Detective Iancu’s opinion that the device was working. [ 25 ] In the result, I am not satisfied that the officer had reasonable grounds to make the arrest, and I find there was a violation of s.8 of the Charter. iii.

Section 24(2) [ 26 ] Section 24(2) of the Charter states that where a court concludes that evidence was obtained in a manner that infringed the rights of the accused, the evidence shall be excluded if it is established that its admission would bring the administration of justice into disrepute. In R. v. Grant, [2009] S.C.R. 353, the Supreme Court held that in making this determination, the trial judge must assess and balance the effect of admitting the evidence on society’s confidence in the justice system.

This requires three avenues of inquiry into: 1. the seriousness of the Charter infringing state conduct; 2. the impact of the breach on the Charter protected interests of the accused; and 3. society’s interest in the adjudication of the case on its merits. [ 27 ] In my view, Detective Iancu’s lack of understanding of the device and the law regarding the device was serious.

While I have no doubt that he was attempting to apply the law with good intentions, he was wrong in his belief that he had to administer a roadside screening test in every case even if he had grounds to arrest and make a demand. [ 28 ] In this case, the defence doesn’t suggest that the roadside screening test was unwarranted. Indeed, Mr. Rabinovich conceded that there was a reasonable suspicion that Mr. Costa had alcohol in his body, and this was a proper case for testing on an approved screening device demand under s.254(2), as opposed to an immediate arrest and demand for samples under s.254(3) . I agree.

However, the concern remains that the officer appears to believe that he is required to carry out roadside testing in all cases, regardless of whether he believes the suspect is driving while impaired or over the legal limit. As the officer explained it, he does the additional test in all cases, “to be sure”. [ 29 ] Although the Crown submitted that this demonstrated a desire on the officer’s part to be cautious and fair, I think it has to be recognized that an unnecessary test takes time and can amount to a significant interference with the liberty of the individual.

Even though the test was appropriate in this case, the officer’s admitted pattern of administering it in other cases when it is not required is a matter for concern. [ 30 ] The officer was also completely unaware of the error codes relating to the device, and misunderstood the potential sources of error. While I acknowledge that he is not required to be familiar with the intricacies of the device, I believe that an officer should have a basic understanding of the possible readings and error codes of the device before relying on it as a basis for arrest.

I find that the lack of this basic information and the officer’s apparent misunderstanding of the law combine to create a serious breach. [ 31 ] In assessing the impact on Mr. Costa’s rights, it is true that the taking of breath samples is minimally intrusive. However, it can’t be ignored that the arrest here led to a process that lasted several hours for this accused person. Moreover, while the officer testified that he believed Mr.

Costa was arrestable, it cannot seriously be contended that there were grounds for an arrest absent the fail on the roadside device and I agree with the defence that there was no other basis for an arrest here. Arrest in the absence of reasonable grounds is a serious breach: see R. v. Bartle , 1994 CanLII 64 (SCC) , [1994] 3 S.C.R. 173 at para. 50 .

[ 32 ] Finally, I must take into account that the breath samples obtained at the police station were reliable evidence and this factor militates in favour of admitting the evidence. Society generally expects that a criminal charge will be adjudicated on its merits, and the breath samples taken here form the heart of the prosecution.

As McLachlin C.J. and Charron J. stated in Grant, the public interest in having a trial on the merits in a case involving bodily samples will usually favour admission. [ 33 ] Balancing all of these factors, it is important to remember that the main concern in relation to s.24(2) is to preserve public confidence in the rule of law and its processes. Viewed in that light, I find that the officer’s lack of basic knowledge about the device combined with his ignorance of the law regarding its use resulted in a serious breach that requires exclusion of the evidence, notwithstanding its reliable nature.

Public confidence in the administation of justice is undermined if officers do not know the law and use of devices that serve as a basis for arrest. 3. The Expert Report [ 34 ] In the event that I am wrong in finding a breach of s.8 and excluding the evidence, I find that in any event I am left with a reasonable doubt in respect of proof of the assumptions in the expert report tendered by the Crown. [ 35 ] Justin Hinman’s report states that the projected range of blood alcohol content of 135 to 185 mg of alcohol in 100 ml of blood at the time of driving for Mr.

Costa “is dependent upon the following additional factors… [including] no consumption of large quantities of alcoholic beverages shortly prior to the incident”. [ 36 ] There was no evidence explaining what Mr. Hinman meant by “large quantities of alcoholic beverages”, nor any evidence that might explain how long a time was meant by “shortly prior” to the incident. Similarly, there was no evidence regarding how many drinks or how much alcohol Mr.

Costa would have had to consume to bring his blood alcohol content within the legal limits at the time of driving. [ 37 ] This is an area of recurring controversy, and one that continues to attract appellate attention when these reports are tendered by the Crown: see R. v. Evans, [2010] O.J. No. 47 (C.A.) . I would echo Justice Durno’s comments in R. v. Staats, an unreported decision dated August 12, 2008 at para. 77: …it is difficult to understand why the toxicologists from the Centre for Forensic Sciences would not include a definition of an important term and a case specific analysis.

While a trier of fact is entitled to rely upon their common sense and draw inferences about how normal people behave, and that normal people do not consume large quantities of alcohol shortly before or while driving, it becomes problematic when the trier of fact does not know what is meant by “large quantities” ( and I would add, or “shortly” before). [ 38 ] Beyond the failure to define these terms, there is an additional problem here.

As indicated in Staats, in some cases it is possible to infer that it is inherently unlikely that an accused would consume a large quantity of alcohol shortly before driving: see R. v. Grosse (1996), 1996 CanLII 6643 (ON CA) , 107 C.C.C. (3d) 97 (Ont. C.A.) and R. v. Bulman, 2007 ONCA 169 (CanLII) , [2007] O.J. No. 913 (C.A.) . [ 39 ] In R. v. Calabretta, [2008] O.J.

No. 4188 (S.C.J.) , Langdon J. suggested that the ratio in Grosse was that while there is no common law presumption that an accused has not engaged in bolus drinking immediately before the incident under examination, very slight circumstantial evidence suggesting the absence of such bolus drinking will suffice to place an evidentiary burden on the accused to explain unusual facts uniquely within his knowedge. [ 40 ] However, in this case, I see no circumstantial evidence suggesting the absence of bolus drinking at all. There was no evidence about where Mr.

Costa was coming from, how long he had been driving, and no admissible evidence about what he drank or when he had last consumed alcohol. There was further no quantification of what Mr. Costa would have had to drink in order to be at or under the legal limit. In combination, I find these factors leave what Langdon J. called an “evidentiary vacuum” about bolus drinking.

[ 41 ] On the other hand, although there was no evidence of alcohol in the car, there was a strong odour of alcohol coming from the car. There was also a strong odour on Mr. Costa’s breath. While I would not go so far as to say these factors provided positive evidence of recent bolus drinking, neither do they assist the Crown in showing no bolus drinking. [ 42 ] The absence of bolus drinking is an element that the Crown must prove in order to rely upon the report and sustain a conviction.

Based on the evidence before me, I find I have no basis upon which to conclude or draw the inference that there was no bolus drinking. In the circumstances, the Crown has failed to meet its burden on this issue and the accused is entitled to the benefit of the doubt. 4. Conclusion [ 43 ] Based on either issue raised by the defence, I find the accused is entitled to be found not guilty. Released: April 26, 2010 (released to the parties April 23, 2010) Signed: “Justice Leslie Pringle”