2021 QCCQ 3395, 2021 QCCQ 3395

R. c. Von Teichman 2021 QCCQ 3395 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU “Criminal and Penal Division” No.: 550-01-111955-193 DATE: April 16, 2021 ______________________________________________________________________ PRESIDING: THE HONOURABLE ANOUK DESAULNIERS J.C.Q. ______________________________________________________________________ THE QUEEN RESPONDENT - Prosecutrix v.

MARK JOSEPH VON TEICHMAN APPLICANT – Accused THE ATTORNEY GENERAL OF QUEBEC IMPLEADED PARTY ______________________________________________________________________ Ruling on the applicant’s motion seeking exclusion of the breath tests results ( s. 8 and 24(2) of the Canadian Charter of Rights and Freedoms ) ______________________________________________________________________ [ 1 ] The applicant, Mr. Mark Joseph Maria Von Teichman, is charged with having a blood alcohol concentration over the legal limit within two hours of having operated a motor vehicle, pursuant to paragraph 320.14(1) (

b) of the Criminal Code ( Cr. C .). [ 2 ] The applicant seeks the exclusion of the results obtained from an approved instrument (a “breathalyzer”) after he provided samples of breath at the police station pursuant to s. 320.28 Cr. C. [ 3 ] The applicant submits that these breathalyzer results are inadmissible because they are, in his view, part of a legislative scheme which provides that a proper demand must be made in accordance with the law before breath samples can be obtained.

The applicant further submits that, if no valid demand is made, the breath results do not fall within the statutory scheme and the tests results are not conclusive proof of his blood alcohol concentration. [ 4 ] Furthermore, the applicant argues that, when breath sample results are obtained outside of the legislative scheme provided in the Criminal Code , they are no longer legally allowed and are therefore obtained in violation of s. 8 of the Charter , which provides protection against unconstitutional searches. [ 5 ] The Crown, in response, submits that proof of a lawful demand is not a precondition to the admissibility of the breathalyzer results. [ 6 ] For the following reasons, the applicant’s motion is dismissed.

ANALYSIS [ 7 ] Mr. Von Teichman was intercepted by Officers Coggins and Pelletier while driving his car early in the morning of March 22, 2019. The police noticed that he had glassy, bloodshot eyes and that his breath smelled of alcohol.

The applicant confirmed that he had consumed alcohol earlier that evening. [ 8 ] Officer Coggins ordered him to provide a breath sample into a roadside screening device, using the service card provided to him by the Gatineau police. [ 9 ] Using a copy of his service card, Officer Coggins read out loud in court the order he read to the applicant on the morning in question. [ 10 ] Following this order, the applicant provided a breath sample into the screening device, which yielded a result of “Fail”.

[ 11 ] Mr. Von Teichman was put under arrest for operating a motor vehicle while impaired. Officer Coggins testified that he then read an order to blow into the breathalyzer to the applicant, using the same service card.

However, when asked in court to read out loud what he read to the applicant after his arrest, Officer Coggins read again the order to blow into a roadside screening device, instead of an order to follow the police to their detachment and provide breath samples into a breathalyzer. [ 12 ] Based on this evidence, the applicant argues that the service card provided by the Gatineau police to its officers does not include a proper order to provide breath samples into a breathalyzer pursuant to paragraph 320.28(1)(

a) Cr. C ., or at least not in its English version. The applicant, who didn’t testify, submits that this evidence shows that he was never properly ordered to provide breath samples for a breathalyzer. [ 13 ] The Court respectfully disagrees. [ 14 ] It is clear from the testimonies of Officers Coggins and Pelletier that their service card includes two distinct orders: one requiring a person to provide a breath sample into a roadside screening device, and one requiring a person to provide breath samples into a breathalyzer at the police station.

In addition, Officers Coggins and Pelletier gave no indication that the English version of their service card may be different from the French one. [ 15 ] As noted above, Officer Coggins testified that, prior to arresting the applicant, he ordered him to blow into a screening device. Subsequently, he ordered him to submit to a breathalyzer after the applicant was arrested and given his rights. Officer Coggins, in his testimony, never confused the two orders when referring to one or the other.

Instead, his evidence clearly shows that he understood these two orders as being distinct from one another and as serving different purposes. [ 16 ] Officer Pelletier testified along the same lines. He maintained steadfastly that his service card included two separate orders, which may be similar in many respects, but are nevertheless distinct: an order to blow into a roadside screening device and an order to follow the officers to the police station for a breathalyzer test. Officer Pelletier stated that he has heard both of these orders on many occasions.

He testified that he did not bring them to court, referring to the printed versions of the two separate orders.

But he said that, if they were to be read to him, he could tell the difference between the two. [ 17 ] From the evidence as a whole, the Court finds that the English service card used by Officer Coggins at the time of the events contained two separate orders, one for the screening device and one for the breathalyzer, respectively. [ 18 ] So why did Officer Coggins read the order relating to the screening device out loud in court, when he was asked to read the order relating to the breathalyzer test? [ 19 ] During his testimony, Officer Coggins appeared disconcerted by having to read the order out loud in court in English, even though he had opted to testify in French, his native language.

He seemed to focus on the words he was reading in English, and their proper pronunciation, rather than on the substance of the order. The Court believes that Officer Coggins, being slightly unsettled, read the wrong order by mistake and, because the two orders are very similar in many respects, he failed to realize his error. [ 20 ] There is no reason to think Officer Coggins deliberately and knowingly read the same order twice in Court, and this situation was never brought to his attention when he did.

When asked to read the breathalyzer order, Officer Coggins did not raise that this would require him to read the same order he had just read out loud in relation to the screening device. Rather, his evidence as a whole shows that he was under the impression, erroneously, that he was reading something distinct from what he had read out loud earlier in his testimony. [ 21 ] This brings us to the more important question: Did Officer Coggins make the same mistake after he arrested the applicant?

Did he read the order relating to the screening device to him, instead of ordering him to provide breath samples into a breathalyzer? [ 22 ] Both Officer Coggins and Officer Pelletier testified that Officer Coggins ordered the applicant to follow them to the police station to take the breathalyzer test. Officer Coggins specified that they headed to the police station with the applicant because he had agreed to submit to the breathalyzer test. Also, there is nothing in evidence suggesting that the applicant was surprised by the fact that he was being taken to the police station.

The evidence suggests that he knew this was going to happen, which could only have been explained to him in the context of a breathalyzer demand.

The need to follow the police could not have been expressed to the applicant in the context of the demand to blow in the screening device, which the officers had at their disposal on site. [ 23 ] This evidence confirms that Officer Coggins gave the proper order and adequate information to the applicant, who then agreed to comply with the order and be taken to the police station. [ 24 ] What’s more, Officer Coggins stated that, after reading the breathalyzer order from his service card, he also explained it in his own words to the applicant, making sure Mr. Von Teichman understood what was involved.

As noted above, Officer Coggins clearly understood the specific nature and implications of the breathalizer order, and there is nothing to suggest he did not explain it accurately, in his own words, to the applicant. [ 25 ] For all these reasons, the Court finds that the applicant was given a full and proper demand to follow the officers to the police station and provide samples of breath for a breathalyzer analysis pursuant to par. 320.28(1) (

a) of the Criminal Code . [ 26 ] The applicant’s motion seeking exclusion of the breath test results is therefore dismissed. [ 27 ] It also bears mentioning that, absent a proper order pursuant to par. 320.28(1) (

a) Cr. C ., the results of the breathalyzer analysis would still be admissible into evidence. [ 28 ] In R. v. Alex [1] , the Supreme Court of Canada confirmed that the Crown need not prove that the police made a “lawful” breathalyzer demand before the Crown can benefit from the evidentiary “shortcuts” formerly provided at

section 258 of the Criminal Code . The Supreme Court noted that the lawfulness of a breath demand has no bearing on the reliability of the breath test results. [2]

[ 29 ] In R. v. Alex , the defence argued that the police did not have reasonable grounds to make the breathalyser demand and that, as a result, the breath tests were inadmissible under the Criminal Code ’s legislative scheme. The Supreme Court of Canada ruled that this concern would be better addressed by

section 8 of the Charter . [ 30 ] The sufficiency of the police grounds to demand a breathalyzer test is not at issue in the present case. Rather, the applicant rests his

section 8 argument solely on the premise that the test results were not obtained following a proper order and therefore fall outside the legislative scheme, an argument that must be rejected as it contradicts the ruling in R. v. Alex . [ 31 ] Furthermore, it bears mentioning that R. v. Alex dealt with the former legislative scheme for blood alcohol concentration, which was repealed in 2018. In that regime, the evidentiary shortcuts at paragraphs 258(1)(

c) and 258(1)(

g) were prefaced by the following phrase: “where samples of the breath of the applicant have been taken pursuant to a demand made under subsection 254(3)”. Despite this explicit reference to a demand made under the Criminal Code , the Supreme Court of Canada refused to turn a “lawful demand” into a pre-condition for the evidentiary shortcuts provided at former paragraphs 258(1)(

c) and 258(1)(

g) Cr. C. [ 32 ] A new legislative scheme [3] came into force in December 2018, and it applies to the alleged offence in the present case. In this regime, subsection 320.31(1) Cr. C. provides an evidentiary shortcut regarding the reliability of the breathalyzer test results. And, contrary to the previous legislative scheme, subsection 320.31(1) does not refer to the breath samples being provided following a demand.

This notable difference further reinforces the conclusion that the Crown need not prove that a lawful demand was made for the test results to serve as conclusive proof of the applicant’s blood alcohol concentration. [ 33 ] One last remark: In R. v. Alex , Honorable Justice Moldaver, speaking for the majority, makes it clear that the evidentiary shortcuts do not affect whether the applicant’s breath readings are admissible or not.

Rather, the Supreme Court says that the shortcuts affect only the manner of admission – specifically, whether the Crown must call the qualified technician who administered the tests to verify their accuracy. [4] In the present case, in addition to relying on the legislative shortcut regarding the accuracy of the breath results, the Crown also relies on the testimony of Officer Pelletier, the qualified technician, who confirmed that, in his view, the tests went well, and the results were therefore reliable. [ 34 ] For all these reasons, the Court finds that the breathalyzer results obtained are admissible.

The applicant’s motion for exclusion is dismissed. __________________________________ ANOUK DESAULNIERS J.C.Q. Mtre Simon-Pier Cossette Counsel for the respondent Mtre Cedric Nahum Counsel for the applicant Mtre Gaëlle Missire Mtre François Lamalice Counsels for the impleaded party Dates of hearing: March 10 & 11, 2021