R. v. Broxterman, 2016 ONCJ 285

CITATION: R. v. Broxterman , 2016 ONCJ 285 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — MARK BROXTERMAN CHARTER S. 8 JUDGMENT Ms. S. Fericean............................................................................................ for the Crown Mr. M. Engel............................................................................................... for the Defence Harris, J.: Introduction [ 1 ] Mark Broxterman was charged with “excess alcohol” on August 9 th , 2014. [ 2 ] The defendant/applicant applies under

section 8 and 24(2) of the Charter for the exclusion of the breath sample evidence on the basis that police obtained samples of the applicant’s breath in violation of his

section 8 rights. At issue in this judgement is whether the arresting officer had reasonable grounds to arrest the defendant on a charge of “over 80 mgs” and make an Intoxilyzer demand pursuant to section 254(3) of the Criminal Code . The Facts [ 3 ] On August 9 th , 2014, P.C. Min Kim was operating a R.I.D.E. spot check on York Street south of Front Street in Toronto at about 2:46 a.m. The officer testified that he attempted to stop the Broxterman vehicle but it “drifted past” and the officer “ran to a scout car” and followed the vehicle for about 100 metres to where it was stopped at a red light. P.C.

Kim gave evidence that on approaching the vehicle and on the basis of a reasonable suspicion the defendant had alcohol in his body as a result of some indications of alcohol consumption (smell of alcohol on his breath, a “little bit of a glazed look about him” and an admission he had consumed about four drinks), he conducted an ASD test which resulted in a “fail” result and a charge of “over 80 mgs.” First, the ASD demand was made at 2:46 am on August 9, 2014 and the device was delivered to the scene at 2:48 a.m. [ 4 ] Next, P.C.

Kim testified that he performed a “self-test” and the device registered “zero” which lead him to form an opinion that the device was working properly. He indicated, “I believe it was working accurately.” Mr.

Broxterman was asked to provide a sample at 2:49 a.m. and after he did so the machine registered ‘fail.’ When asked what that indicated the officer stated: “the approved screening device indicates by three red flashes that would light, also three beeps or tones that indicated to me, because it is set up that he had more than or greater than or equal to 100 mgs of alcohol in 100 mL of blood because that apparatus is set to fail at anything equal to or greater than that amount, BAC.” The officer stated, “So having failed, it was my belief that at the time that he had equal to, greater than or equal to 100 mgs. of alcohol in 100 mls.

Of blood.” Mr. Broxterman was then arrested, an Intoxilyzer sample was demanded, and

he was transported to the nearest police division where he provided Intoxilyzer samples (174 and 169 mgs. percent) and he was charged with the offence of “over 80 mgs.” [ 5 ] In cross-examination, PC Kim gave evidence that he had been with Toronto Police Traffic Services for approximately 10 years. The following questions and answers were recorded in the transcript of his testimony on October 9, 2015. PC Kim’s evidence on the mouth alcohol issue [P. 53] Q. You told us today that one of the reasons you administered the approved screening device is that you believed he had consumed alcohol recently? [P. 54] A.

That he had, yeah, he had consumed alcohol that night, yes. Q. Okay, and the recency of the consumption I take it would be based on the odour of alcohol you could detect in his breath? A. It was strong, yes. Q. So given the fact that he didn’t appear to be impaired, he admitted that he had four drinks, that the odour of alcohol was strong on his breath, that would all fortify your conclusion that he consumed alcohol pretty recently, in relation to the time of the stop? A. Not in terms of like, I believed that he had drank alcohol that night. [P. 55] Q. Why did you not ask him when his next drink was? A.

I don’t have an answer for that. Q. Are you not trained to make that inquiry in circumstances such as these? A. I do, yes. Q. and you agree with me you should have made the inquiry the circumstances. A. I may or may not have. I don’t have that in my book so I can’t say for sure. Q. Well let’s just review the situation. This is pretty much last call in a busy urban setting, right? A. Again I’m not sure it was last call or not. It was late in the ride program. Q. But you knew the consumption was recent. There’s a strong odour of alcohol on his breath, 2:46 a.m. in the morning, he’s told you he’s had four drinks.

In retrospect, you should have asked when he finished his last drink. A. Usually I do. Again I don’t have that in my notes so I can’t say for sure I did or did not. Q. Okay. You agree with me that you should have on this occasion. A. I agree. I don’t understand. If I did then I would have. …… Q. well it’s probably not in your notes because you did not make the inquiry. [P. 56] A. No. I wouldn’t agree with that statement, sir. Q. You realize it’s important to determine when the last drink was? A. Yes I do. Q. Explain to me why you think it’s important. A.

My practice is that if they were to say they had recently, they had just consumed alcohol within 15 minutes. Q. Right. A. I would give that person 15 minutes to make sure we don’t give a false positive for the alcohol reading on the approved screening device. Q. Well given you’d reached the conclusion independently he consumed recently, would that behoove you to make the inquiry in this case? A. I think my use of the word recently was not anything technical except that he had drank during the night.

[P. 61] Q. Can you tell us what you’re training dictates in terms of the proper administration of the test? What is it that in your view you need to do to administer a proper test? A. First of all, I need to make sure that, if I can use again, mouth alcohol, that I’m not testing an individual within the limit where they might have provided a false [P. 62] reading. That would be my primary concern. [ 6 ] On page 95 of the transcript of November 3, 2015, Mark Broxterman was asked when he consumed his last drink in relation to the time he was stopped. Q.

So you have finished that drink approximately what time then in relation to the stop, the stop being at 2:46? A. Fifteen to twenty five minutes. ….. Q. You heard me question the officer as to whether he asked you when your last drink had been? A. He did not ask me that question. The ASD Operation Evidence [ 7 ] The following evidence was given by PC Kim in cross-examination. (See page 59, transcript, October 9, 2015). Q. Okay. Now you made it clear to me that the arrest this night was based entirely on the ‘fail’ of the approved screening device? A. Yes. Q.

Okay, so you agree with me that your determination or belief that the machine was working properly would be essential to the integrity of the conclusion that you could arrest him? A. Yes. Q. All right. Now I presume that you have some type of training with respect to the approved screening device? A. Yes I do. Q. Okay and where and when did you get that training? A. At traffic services. Q. And when would the most recent training have been? A.

For that particular apparatus, the 6810, Drager (sic) 6810, I think it might have been in, I’m just thinking it might have been… 2012, is when we first had the lecture on its usage. [P. 60] Q. … Can you tell me from your training with respect to the use of this device, what steps you need to undertake to determine that the machine was in proper working order? What specifically does your training indicate that you need to do? A.

I believe it does have a digital display when the calibration dates on the maintenance that it has to go through, date and time. [P. 61] My question was when you turn it on, your training indicates there’s certain observations you should make, and if so, what are they? A. Again it was that, make sure that it was maintained properly, that it’s not outside its calibration date. Q. Right. A. And that I provide a sample of my breath to make sure that it is collecting samples properly. Q. Okay is that the total of what you need to observe? A. That’s all I can remember at this point. Q.

Okay and in terms of the actual administration of the test can you tell us what your training dictates in terms of the proper administration of the test? What is it in your view you need to do to administer proper test?

A. First of all I need to make sure that, if I can use again, mouth alcohol, that I’m not testing an individual within a time limit where they might have provided a false reading. That would be my primary concern. Second is to instruct the individual on how to provide a proper sample, making a tight seal. [P. 63] Q.

I’m going to provide you, it’s entitled, it’s on the property service logo, it’s called the “Drager Alcotest 6810 Approved Screening Device Operating Procedures.” And I would think, correct me if I’m wrong, it’s very, at the very minimum your training would involve this type of pamphlet prepared by the Toronto police. Does it look familiar to you? A. I think it, yes, it does look familiar. Q. Okay. That would be part of your training, would it not? A. That would have been during the lecture that I received. [P. 64] Q. Okay.

Now in terms of, you told us, you told us what you thought you needed to do when you turned on the machine and to administer the test properly, in terms of your notes, what note do you have with respect to observations that you made of the machine before you conducted the test? A. For example on page 60, my last page, there is an indicator that, with the serial number and the, the sticker that was on the approved screening device. … Q. I take it you would have made some effort to comply with what you were trained to do in terms of the observations concerning the machine? A. Yes. Q. The particulars of the machine.

Do you indicate the make of the machine in your notes? [P. 65] A. Not in my notes … Q. Okay. Well I’m just looking at the notes that I’ve given you the Drager Alcotest, it’s helpful on the point in determining what you need to do, that you want to refer to it. Q. The manual indicates that when you turn on the device you make a number of observations including noting the name of the device. I’m looking at your notes are don’t see the name of the device. A. No. Q. Okay why would you not have included that? A. Again, I perhaps, I can’t explain why but I know that’s what it is and I know how to operate it. [P. 66] Q.

Okay. The manual also specifies that you, when you turn on the device you also make a note as to the number of days before the calibration check is due. Did you include that in your notes? A. No. Q. And why is that? A. I just observed it and noted it to myself that it was within the specified range and it was not an issue. Q. Well doesn’t the specified range require some information from you as to the date of the calibration? A. I lean on the maintenance records that I, myself am not qualified to say that I maintained it or not, of course.

So if they had any issues regarding the apparatus then they have the officer who’s in charge of maintenance to go through so I just made a note to myself that it sufficed my belief that it was working properly. [P. 67] Q. You’ve told me you’ve been trained. You’ve identified and agreed that the manual I’ve given you is part of your training and I’m just trying to understand why it is that you would disregard a lot of your training in terms of things that you should have observed that you didn’t? A. I observed them. I noted them to myself.

Did I record them in my book, no, I have not, but I was satisfied that that when I took out that apparatus with that serial number for which they can refer back to and regulate, that that apparatus was working properly that night … Q. In any event you’re supposed to observe this and you just didn’t note it? A. I observed it. I noted it to myself at the time to make sure that it was working properly. [P. 68] Q. The manual goes on to state that when you turn the device on you should attempt to determine the approximate time the

device requires prior to entering the ready mode. Did you make a note of that? A. No I didn’t. Q. Under the entitlement (sic) “Performing the Test” at the top of the page. A. Yes. Q. It provides as follows, “if the subject is providing a sample of sufficient flow, “blow” will be displayed on the screen, a continuous tone will be heard and the lamp will display a solid green.” You see that? [P. 69] A. Yes I do Q. Would you agree with me that there’s nothing in your notes nor have you told us so far whether you saw “ blow” in the display, whether you heard a continuous tone or what the color of the lamp was? A.

I didn’t put in my notebook all of that information. I didn’t know that… … Q. Okay. Well leaving aside what you put in your notes I’ve also asked you what your training detected and I don’t recall you telling me in terms of the proper administration of the test, that you need to observe any type of display indicating “blow” in the display or that you’d have to hear continuous tone or that the lamp would have to display a particular color. Did I miss that? A. No. In terms of a particular color or whatnot I did not say that when you asked. [P. 70] A.

But I do understand how that – – just because I didn’t say it was a proper understanding of the exact procedure… Q. Right. A. Doesn’t mean that I know what I’m looking for to make sure it’s working properly. … Q. Why I’d suggest you didn’t mention it is because you didn’t know you had to look for it. The only reason you think you did it now is because I’ve given you the manual and you realize you made a mistake. A. No, sir, I do know how to operate that Drager Alcotest 6810. I have used it many times.

And I may not have answered your questions properly, but it’s not an indicator that I don’t know how to operate it. [P. 73] Q. Now you’ve told us today that your determination that a ‘fail’ had been registered was accompanied by, you said, three red flashes and three tones. That was your evidence today? A. I believe it was three, three blinks, but. Q. and three tones? [P. 74] A. But there was three tones that I knew, no? Yes. Q. And three flashes? A. That I’m not too clear, but I know that the indicator is red. The light indicator for a fail is red. Q. Right. A.

I’m not 100% sure if it flashes three times, but I do know there’s three tones emitted. … Q. I don’t want to miss-state your evidence but as I recorded it, you told my friend that in terms of determining that it was ‘fail’, one of the things you took into account was that you saw three red flashes and you heard three tones? A. Yes I did say that. Q. And that’s, obviously you wouldn’t make that up. You recall that, that that’s what you saw? A. That is just what I believe that would come, but I do know… Q. Believed? A. Y es. Q. It may be true. It may be not? A. I do know the indicator light is red.

[P. 75] Q. Well let’s return to the manual then. Q. That you were given as part of your training. Third paragraph on the second page. A. Okay. Q. What it says it (sic) that if the result is a fail the device admits three short tones and a lamp will be solid red. A. Okay. Yes. Q. Do you see that? A. Yes I do. Q. You don’t disagree with the manual I take it? A. Then I was in error when I said there were three emitted tones, sorry three emitted lights. [P.76] Q. Or you might have been correct and you didn’t – – he didn’t register a fail? A. No I would not be able to misread fail, F-A-I-L, or the color red.

I’m not color blind and I also know how to read, Sir. (Trainingmanual was then marked Exhibit 2 on the voir dire). The Expert Evidence [8] The prosecution and the defence in this case called expert witnesses on the functioning of the ASD used by P.C. Kim. Mr. BenJoseph was called by the defence to provide an expert opinion as a toxicologist previously employed by the CFS for 10.5 years withextensive training on the various approved devices including the Alcotest 6810.

He stated that his opinion as to the proper working orderand the proper administration of the approved screening device was based solely on his training as a scientist at the Center of ForensicSciences. In addition he stated he intended to rely on the Toronto Police Service training manual for the roadside devices. Mr.

Josephtestified that his opinion as to the proper working order of the ASD was that it was a case of “improper operation or fail to operateproperly.” He was asked, “in your view, could the officer properly rely on the ‘fail’ of the approved screening device given what effortshe undertook?” He replied that, “No he did not.” The toxicologist was of the opinion that the officer could not have reliably rested hisopinion as to ‘fail’ given his operation of the device. He stated that a flashing red according to the training manual and the training videoindicates that there is a malfunction. Mr.

Joseph pointed out that he could look at it two ways, “either there was a malfunction at the timeMr. Broxterman provided a sample, or he incorrectly worded it as “flashing reds.” He also stated it was important to be knowledgeableabout the calibration date to determine the proper working order of the instrument. He indicated that this instrument should be calibratedevery six months or checked for accuracy with a standard alcohol solution every month.

He testified, “if it isn’t calibrated… the devicewouldn’t be able to measure the concentration accurately.” His conclusion was that a properly trained officer would not be able to rely ona device that provided three red flashes. “You should never get flashing red signals with a fail.” Under cross examination, Mr. Josephgave evidence that his opinion was limited to the number of flashing lights on the ASD in this case. [9] Dr. Darryl Mayers was qualified as an expert in toxicology and testified for the Crown on the functioning of the ASD.

He had aPhD in toxicology, had been employed by the CFS for 23.5 years and had testified a number of times on the operation of the approvedscreening devices. His opinion was that the ASD in question could not flash red just three times nor could it flash while recording a‘fail.’ He concluded that if the officer observed a failed display, he operated it properly and received a proper field result. He stated itwas not possible to have a ‘fail’ and have three lights flashing. Dr.

Mayer’s testified in cross-examination that “you want to have thedevice calibrated correctly.” He was satisfied PC Kim was using the Draeger Alcotest 6810 and stated that the ‘6810 won’t operate if it’snot in the range.” He was asked,” Why would the manual instruct the operator to note when the calibration was due if it will still work?”He answered, “I can’t say. Since the officer was able to use it you know that it was in the calibration period.” Dr.

Mayers agreed that redflashes were associated with a function where an error occurs, but the unit would “not just flash three times.” He agreed that when therewas an error message with a sufficient sample etc., it was logically possible that the officer could see three red flashes and then he looksaway.” Analysis [10] I have read and considered all of the authorities submitted by counsel even if I do not refer to each judgment in this decision. Thefundamental principle to be considered in determining reasonable grounds is discussed in R. v.

Storrey (SCC), [1990] 1S.C.R. 241 at p. 249 – 250: The importance of this requirement to citizens of a democracy is self-evident. Yet society also needs protection from crime. This needrequires that there be a reasonable balance achieved between the individual's right to liberty and the need for society to be protected fromcrime. [11] Any analysis of reasonable grounds must begin with an approach to the issues articulated in R. v. Bush 2010 ONCA 554, [2010] O.J. No. 3453 at paras. 37, 38, 47 and 48:

[37] Between suspicion and proof beyond a reasonable doubt lie reasonable and probable grounds. Section 254(3) of the Criminal Codeauthorizes peace officers to demand Intoxilyzer breath samples provided the officer "has reasonable grounds to believe that a person iscommitting or at any time within the preceding three hours has committed" the offence of impaired operation or driving 'over 80'"(emphasis added). Reasonable and probable grounds do not amount to proof beyond a reasonable doubt or to a prima face case: seeCensoni, at para. 31; and R. v. Shepherd, [2009] 2 S.C.R. 527, [2009] S.C.J.

No. 35, 2009 SCC 35 , at para. 23. [38] Reasonable and probable grounds have both a subjective and an objective component. The subjective component requires theofficer to have an honest belief the suspect committed the offence: R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, [1994]S.C.J. No. 87, at para. 51. The officer's belief must be supported by objective facts: R. v. Berlinski, (ON CA), [2001]O.J. No. 377, 9 M.V.R. (4th) 67 (C.A.), at para. 3.

The objective component is satisfied when a reasonable person placed in the positionof the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest: R. v. Storrey, (SCC), [1990] 1 S.C.R. 241, [1990] S.C.J. No. 12, at p. 250 S.C.R. …………. [12] Further points to be made are that the reasonable and probable standard is not an onerous test; neither must it be so diluted as tothreaten individual freedom: R. v. Brown [2014] O.J. No. 1021 (Sup. Ct.). As well, in a footnote in R. v.

Brown, supra, page 11, Durno J.states that to the extent that [other judgments] “hold or imply that the absence of a notebook entry precludes reliance on the evidence orthat there is a duty on police officers to include all evidence in their notebooks, I respectfully disagree.” R & PG to Arrest and Make a Breath Demand Following ASD Fail Result [13] It was argued that the investigative performance of the arresting officer in this case was so clearly inadequate that he could nothave had reasonable grounds to believe in the reliability of the ‘fail’ on the roadside screening device.

The position of the defendant isthat: (1) the officer should have delayed the ASD test for fifteen minutes in order to eliminate any possibility of recent drinking and afalse positive result caused by the presence of mouth alcohol; (2) he should have investigated whether the device was recently calibratedso as to ensure it was working properly; (3) the officer should have been able to demonstrate that he was familiar with the policemandated operating procedures for this device and sufficiently competent to operate it such that he could reasonably rely on the results asgrounds for an arrest and demand.

Had he followed the required procedures in the ASD manual that he accepted as the guide for thisdevice, he would have realized that there were steps he should have taken and a malfunction he had to resolve before he could have hadreasonable grounds to believe in the reliability of the ‘fail’ on the roadside screening device. Further, it is submitted that P.C. Kim’sevidence is entitled to little or no credibility as a result of his failure to note his observations as to the administration of the ASD inviolation of police procedures.

Counsel submits that on the basis of his performance and the lack of any note taking in respect to criticaldevice operation steps, I cannot have any confidence in the officer’s evidence - particularly that he had a reasonable belief that the devicewas reliable and capable of producing an accurate result. [14] I am entitled to believe all, part or none of a witness’ evidence. One must readily acknowledge problems with the evidence ofP.C.

Kim, first because there was very little in the way of written observations in his notes, but secondly because, having accepted theimportance of following police procedures in administering the ASD, he is not able to demonstrate that he took the necessaryinvestigative steps to acquire reasonable grounds as to whether the device was working properly and reliable. For example he had nomemo note and he did not know whether he had asked the defendant about mouth alcohol. He said he checked for recent calibration ofthe device but only noted it to himself, without making a written note.

Finally, he testified the fail result occurred at the same time as heobserved three flashing red lights, which by all accounts was not possible. Without a memo note on this subject there was no way ofknowing whether the device malfunctioned and no ‘fail’ occurred or whether he was mistaken about the three red flashing lights. [15] In other words, P.C.

Kim could be said to have suffered a number of deficiencies in performance in terms of his stated practice of(1) checking for mouth alcohol, (2) checking that the device was properly calibrated and (3) ensuring he followed the manual as tosignals given by the device when a proper breath sample was received. The reality was that his investigation was essentiallyunreviewable because he had no memo book notes on these crucial steps.

The question to determine was whether he could havereasonable and objectively relied on the ASD ‘fail’ result as accurate. [16] I am prepared to accept some of this officer’s evidence, in particular that he observed a ‘fail’ result following the breath sampleprovided by the defendant. A ‘fail’ result would have been consistent with his field observations of the defendant – he drifted past theR.I.D.E. stop, “he seemed a little dazed,” he said he had “four beers” and there was a smell of alcohol on his breath.

It is unimaginable hecould mistake a digital ‘fail’ result and there is no allegation being made that he simply fabricated the ‘fail’ reading. Mr. Ben Josephtestified there were two possibilities - either the unit malfunctioned or the operator made a mistake about three flashing red lights. Dr.Darryl Mayers gave evidence that there is no possibility that the device could record a ‘fail’ and at the same time display an errormessage with an accompanying flashing red light.

The unassailable logic of this evidence leads inevitably to the conclusion that P.C.Kim saw a ‘fail’ result on the ASD and mistakenly testified that he saw three flashing lights. In concluding that I am prepared to acceptsome of P.C. Kim’s evidence I do not wish to be seen as endorsing the state of his notes and the deficiencies and omissions in hisnotebook. As has often been stated, the necessity of accurate, comprehensive and contemporaneous note-taking is essential to thepolicing function: Wood v. Shaeffer, 2013 SCC 71 , 2013 S.C.C. 71. Still, it seems to me the context is all-important.

I agreewith the following comments in R. v. Gill 2015 ONSC 7872 (Sup. Ct.): [45]…. as a general rule, perceived, acknowledged or found deficiencies or omissions from a police officer’s notes relating to a particulartransaction may, or may not, hold any significance depending on specific factual context. An absent note may impact on the weight to beafforded an officer’s evidence. Automatic rejection of the officer’s evidence as a discipline sanction is inappropriate.

[17] The deficiencies and inaccuracies in an officer’s notebook, just like the evidence of any other witness, should be dealt with on acase-by-case basis. I have made allowances for the fact that the officer had to give chase after the Broxterman vehicle drifted past theR.I.D.E. spot check in spite of signals to stop.

I recognize that another officer retrieved a device from the breath truck and that theroadside test was required to be administered “forthwith.” The arresting officer was in his vehicle and on foot during most of hisinvestigation and therefore the state of his notes is not necessarily determinative of his reliability on the most relevant issues. I realize the“as soon as practicable” rule tends to relegate the note-taking function to the end of the investigation in drinking/driving cases and resultsin an officer attempting to recall his grounds for arrest hours later.

It must be stressed that in any interaction in which a peace officerpurports to deprive a citizen of his or her freedom, even temporarily, that officer must be able to accurately record the grounds for arrestor detention or risk having the results of the investigation excluded from evidence. In the instant case, the officer did provide sufficientgrounds to meet the reasonable suspicion test for the ASD demand and simply failed to record his conversation with the defendant ornote his observations while he administered ASD test.

The easy answer to the note-taking dilemma would be to use the video equipmentin the police vehicle to record the procedure. I accept that P.C. Kim may not have been familiar with the vehicle he used and was in sucha rush to stop the defendant’s car that he forgot to initiate the use of the onboard video system. [18] There are numerous steps that P.C. Kim should have undertaken in order to have been fully in compliance with the ASDProcedures Manual Ex. 2.

He failed to note the type of device being used, he failed to note the calibration compliance information, therewere no notations as to the mouth alcohol question, there was no record of how long the test took or that he saw the digital indicatordisplay the word “blow,” or whether he heard a continuous tone or noted what the color of the lamp was.

It seems to me thatnotwithstanding the stated requirements of the Procedures manual, the expert evidence on the subject is that none of these ‘performancefailures’ have any bearing on whether the administering officer could reasonably rely on a ‘fail’ result for reasonable grounds. He statedthat “if the officer observed a failed display, he operated it properly and received a proper field result.” Dr. Mayer’s further testified incross-examination that the issue of instrument calibration is not a realistic concern on the Draeger Alcotest 6810.

He stated that the“6810 won’t operate if it’s not in the range.” I recognize that Dr. Mayers is a pre-eminent authority on the 6810, having been involvedwith the study of the device that lead to it being named an approved instrument in the Code. In any event, the Ontario Court of Appealhas settled this question in R. v. Coutts (1999) (ON CA), 45 O.R. (3d) 288. In that case there was no evidence theASD was calibrated for a “fail” reading or that the device was in proper working order.

Moldaver J.A. held that, “Manifestly, where aroadside test is being used solely for the purpose of confirming or rejecting a police officer’s suspicion that a motorist might be impairedor over the legal limit, none of these [functionality] facts need be proved.” Consequently, I conclude that there is no onus on the Crownto prove the ASD was working properly in spite of the officer’s lack of compliance with the procedures set out in the manual.

It nowseems axiomatic in fact and in law that if the officer obtains a “fail” result it can be objectively and reasonably inferred that he or she hadreasonable grounds to believe the device was in proper working order and that the result was reliable. I have concluded there is no basisfor a s. 8 breach on this aspect of the Motion. [19] On the mouth-alcohol question I have concluded that there is no basis to doubt the reliability of the ASD result on the facts ofthis case.

The binding authorities in well-known case law provide that there has to be evidence that the arresting officer should havedelayed the roadside test for 15 minutes in order to eliminate any possibility of recent drinking and residual mouth alcohol that couldproduce a false positive result on the ASD. I accept that the onus to establish P.C. Kim’s reasonable grounds is on the Crown on a s. 8Charter motion, it being a warrantless search: R. v. Haas (2005) (ON CA), 200 C.C.C. (3d) 81 (OCA).

Where thereis no credible evidence that causes an officer to doubt the accuracy of the ASD test unless it is briefly delayed, the officer is not requiredto wait before administering the test or required to ask the driver when they last consumed alcohol (in spite of what P.C. Kim may havebelieved): R. v. Bernshaw (1995) (SCC), 95 C.C.C. (3d) 193 (SCC); R. v. Einarson (2004) (ONCA), 183 C.C.C. (3d) 19 (OCA); R v. Su 2016 ONCA 58. Here, the fact the location where the vehicle was stopped was close todrinking establishments is too speculative to amount to credible evidence of recent drinking. (See R. v. Su, supra).

In any event, Mr.Broxterman’s evidence of his last drink as being 15 to 25 minutes before the stop does not contradict the officer’s evidence because hislowest estimate is still 18 minutes before the ASD testing at 2:49 a.m. (as opposed to the time of the “stop”). On all the evidence theofficer had no basis for believing the roadside test was unreliable on account of the possible mouth alcohol and there was no s. 8 breachon this aspect of the Motion. [20] On the basis of the foregoing, I have determined that there has been no violation of the defendant/Applicant’s

section 8, Charterrights but I will nevertheless consider the section 24(1) application for exclusion of evidence. [21] Considering the three avenues of inquiry mandated by the majority in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, I haveconcluded that if there was a s. 8 breach it was minor in nature and could be best described as a minor error in observing and conductingthe operational processes of the roadside device.

As well, if there was a mouth alcohol issue that should have delayed the administeringof the ASD, considering the other evidence at the scene, it would not likely have affected the outcome, in my view. Any breach orbreaches were made in good faith and the use of the ASD was minimally intrusive. Most importantly, the Intoxilyzer evidence could besaid to be highly reliable and the social value in a trial on the merits in respect to a drinking/driving case is significant.

Applying theGrant, supra, framework, it seems to me the analysis favours admission of this evidence that essentially constitutes the entirety of theCrown’s case. For these reasons the

section 8 application is dismissed.

Peter A. J. Harris, J. May 18, 2016