R. v. Peters, 2015 ONCJ 516

COURT FILE No.: Toronto RegionCitation: R. v. Peters, 2015 ONCJ 516ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN )L. Eplett, )for the Crown ) — AND — ) ) ) NATHAN PETERS )A. Lobel, M. Izadi )for the accused ) ) ) ) HEARD: June 24, 2014, March 30,September 10, 2015 FELDMAN J.: Introduction [1] Nathan Peters entered not guilty pleas to charges of Operation Impaired and Over 80. It is alleged he drove his motorvehicle with more than the legal limit of alcohol in his system. As part of the police investigation at the scene, Mr.

Peters was asked toprovide a sample of his breath into a roadside screening device [ASD]. He registered a ‘fail’ and was arrested. [2] Ms. Izadi, for the accused, submits that where there is no evidence of the calibration of the device or its date, the Crownwill not have met its onus of proving that the instrument was in proper working order. She submits that in these circumstances, havingfailed to turn his mind to the machine’s calibration, the arresting officer lacked an objectively reasonable belief that the machine was inworking order. [3] Ms.

Izadi says that in the result the Crown cannot rely on the ‘fail’, which undermines the basis for reasonable groundsfor the arrest and subsequent breath demand rendering both unlawful and leading to the exclusion of the breath readings. [4] Counsel submits, in the alternative, that the lack of reasonable and probable grounds makes the seizure of the defendant’sbreath unlawful and is a violation of his ss. 8 and 9 Charter rights. She says that in the circumstances, following a Grant analysis [R. v.Grant (2009), 2009 SCC 32 , 245 C.C.C. (3d) 1 S.C.C.], the breath results should be excluded under s. 24(2).

The Evidence [5] On June 8, 2013, P.C. Douglas Watkinson finished his tour of duty at a Ride program in Scarborough at 2:41 a.m. At2:45 a.m., he was in his cruiser westbound on Kingston Rd when he stopped for a red light at Warden Rd. [6] When the light turned green the officer observed Mr. Peters, who was proceeding eastbound and not facing an advancedgreen light, turn left and block westbound traffic from “freely flowing”. He decided to follow the defendant northbound on Warden Rdas he intended to investigate him for ‘stunt driving’, that is, “cutting off traffic when it is available to go”.

He notably failed to mentionthis fact to the dispatcher, nor did make mention of it in his notes. I consider his use of this term in his testimony to be questionable, ifself-serving. [7] As he followed the accused, P.C. Watkinson delayed stopping him until they passed through a narrow construction zoneduring the course of which the officer observed Mr. Peters change lanes twice without signalling. At 2:48 a.m., they came to a stop at ared light on northbound Warden Ave just past Danforth Ave. The officer activated his emergency equipment and effected a stop. [8] P.C.

Watkinson investigated the defendant for sobriety. He said that at 2:49 a.m. he smelled alcohol on the accused’sbreath. In the circumstances, having a reasonable suspicion that Mr. Peters had alcohol in his system, the officer demanded he provide asuitable sample of his breath into an ASD. Mr. Peters complied. He registered a fail at 2:53 a.m. and was arrested. He was provided hisrights to counsel and was made subject to a breath demand. [9] Initially in his testimony, in relation to the screening device, P.C.

Watkinson told the court that he performed a self-testat the scene to ensure the instrument was in proper working order. Under cross-examination, he conceded he was wrong and that the self-test was performed some four hours earlier. There was nothing to this effect in his notes. This reflected an error that diminished thereliability of his evidence on this material fact in issue and bore directly on the objective element of his reasonable belief in this regard,particularly in circumstances where he did not advert to the integrity of the instrument’s calibration. [10] P.C.

Watkinson transported the defendant to 41 Division, arriving at 3:14 a.m. Delays in the sallyport and booking hall asthe police dealt with other detainees held up Mr. Peter’s breath testing until 4 a.m. His readings were 130 and 124 mgs, respectively. Calibration – The Authorities [11] The role of the screening device in the investigative process is as a preliminary and convenient investigative tool “for

confirming or rejecting a suspicion regarding the commission of an alcohol-related driving offence”: R. v. Bernshaw (1995), (SCC), 95 C.C.C. (3d) 193 (S.C.C.) at p. 205. [12] For the test results to be viable, the arresting officer need have an objectively reasonable belief that the instrument was inproper working order and its results reliable. It is what he or she reasonably believes at the time of the arrest, not what is known at thetime of trial: R. v. Weese, [2004] O.J. No. 4502 (Ont. S.C.). [13] In this regard, in R. v. Mastromartino et al, (ON SC), [2004] O.J. No. 1435 (Ont.

S.C.), Durno J. said: “An officer using an ASD need only have a reasonable belief that the device is properly calibrated and in working order before relyingon a ‘fail’ result to confirm or deny his or her suspicions that a driver may be impaired or over the legal limit.

There is no requirementthe officer knew the calibration setting of the device, when it was last calibrated, or whether the device was in fact working properly”. [14] There is in effect a low threshold for establishing an acceptable basis upon which to find the officer’s belief to beobjectively reasonable at the time of testing. [15] By contrast, once this threshold is met, the authorities hold that there is an onus on the accused to lead case-specificevidence, beyond speculation, that there was a “high degree of unreliability” in relation to the ‘fail’ result upon which the officer reliedin significant part to form his reasonable and probable grounds should the basis for the arrest and breath demand be challenged: R. v.Paradisi, (ON CA), [1998] O.J.

No. 2336 (Ont. C.A.). [16] In R. v. Johnston, [2007] O.J. No. 500 (Ont. C.J.), there was no evidence when the instrument was last calibrated. Theaccused relied on the testimony of a pharmacologist, with expertise in breath science methodology involving the use of breath testingequipment, to permit an inference in that case that there was a high degree of unreliability with respect to the screening device and raise areasonable doubt it was in working order.

The expert testified that in terms of scientific methodology, calibration is one of the mostessential steps to ensure the screening device is working properly and that the self-test has no scientific significance. [17] That is not this case, where no such expert evidence was called. In the case at bar, the officer did not advert to thecalibration or, of significance, its timing as he is statutorily mandated to do, but relied on a self-test to support his belief the machine wasin working order.

In this regard, there is no evidence that timely calibration, although important, is determinative in relation to theobjective reliability of the device and the officer’s belief in that regard: see Mastromartino; R. v. Deacutis, [2006] O.J. No. 3249 (Ont.C.J.). Conclusion [18] It is unsatisfactory that an officer, as here, fails to perform, or even contemplate performing, the simple task of reading thecalibration sticker on the ASD prior to the self-test.

However, in my view, the officer’s reliance on the self-test, in the absence ofevidence to the contrary, meets the low threshold indicated in the authorities to found his objectively reasonable belief that the instrumentwas in working order. [19] In the circumstances, I view the ‘fail’ result to be reliable and a lawful basis for the officer’s reasonable and probablegrounds to arrest the accused. It follows that the Charter applications under ss. 8 and 9 fail. [20] On the evidence, the Crown has proven the essential elements of the Operation Over 80 charge. There will be a finding ofguilt.

Operation Impaired [21] The evidence of poor driving and diminished motor skills is minimal at best and would not meet the standard set out in R. v.Stellato (1993), (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.), affd (1994) (SCC), 90 C.C.C. (3d) 160n. That charge is dismissed. Released: September 25, 2015 Signed: “Justice L. Feldman”