R. v. Biscan, 2014 ONCJ 593

COURT FILE NO. Brampton/13-015964 DATE: 2014-11-05 Citation: R. v. Biscan , 2014 ONCJ 593 ONTARIO COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and - ORIANNA BISCAN Before Justice James Stribopoulos Heard on October 9, 2014, Reasons for judgment released on November 5, 2014. Ms. K. Holmes…………..………..…………………… … for the Crown / Respondent. Mr. B. Daley...…...…………………………….………... for the Defendant / Applicant. STRIBOPOULOS, J.: I. Introduction [ 1 ] The defendant, Orianna Biscan, is charged with operating a motor vehicle with a blood alcohol level in excess of the legal limit, contrary to section 253(1) (

b) of the Criminal Code . [ 2 ] Given a number of defence concessions, there are only two live issues in this case. First, whether the defendant’s right to be secure against unreasonable seizure, guaranteed by

section 8 of the Charter , was violated in the taking of her breath samples for analysis by an approved instrument. And, second, whether the breath samples furnished for that purpose were taken “as soon as practicable” after the time of the alleged offence, so as to permit the Crown to rely on the presumption found in subsection 258(1) (

c) of the Criminal Code in order to prove the defendant’s blood alcohol concentration was over the legal limit at the time of driving. II. The Relevant Facts [ 3 ] Early on the morning of October 20, 2013, the Peel Regional Police established a R.I.D.E. check-stop on Winston Churchill Boulevard, near Highway 401, in the City of Mississauga. The police were stopping every vehicle passing through the check-stop, in order to check on the sobriety of drivers. [ 4 ] At 1:37 a.m., the defendant was the driver of a car that approached the check-stop. Constable Asano directed her to stop, and she did so without incident.

After telling the defendant why she was being detained, Constable Asano asked if she had any alcohol to drink that evening. She admitted to consuming one drink, thirty minutes to an hour earlier. The officer also noted the odour of wine emanating from her breath. As a result, Constable Asano told the defendant that she would be required to blow into an “approved screening device” so that he could “check on her sobriety”.

The officer then read her a formal roadside breath demand. [ 5 ] The roadside breath test was administered at 1:38 a.m, using the Dr ä ger Alcotest 6810 (which has been designated as an “approved screening device” for purposes of

section 254 of the Criminal Code . [1] ) According to Constable Asano, that particular approved screening device is calibrated regularly. He testified that if it had not been calibrated as suggested by the manufacturer it would not accept a breath sample. He noted, for example, that at 6:25 p.m. the preceding day, he had blown into the device himself and obtained reading of “0”. He did the same before providing the approved screening device to the defendant, with the same outcome.

As a result, Constable Asano was confident that the approved screening device was working properly when it was used to test the defendant’s breath at the roadside. [ 6 ] The defendant successfully provided a breath sample for analysis by the approved screening device on her first attempt. Constable Asano testified that the device registered a “fail” in response to the defendant’s breath sample, with that word appearing on the display screen and a red light becoming illuminated on the device. He testified that this meant, “a failed test result”. Constable Asano

immediately responded to that result by arresting the defendant “for excess blood alcohol”. [ 7 ] The defendant was placed under arrest at 1:39 a.m. The officer handcuffed her to the front; she was then searched before being placed in the rear of the police cruiser. Soon thereafter, he informed her of her rights to counsel. Initially, at least, Ms. Biscan said she did not want to speak with a lawyer. The officer then read her both the primary and secondary common law cautions, before reading her the formal approved instrument breath demand at 1:48 a.m. [ 8 ] Constable Asano testified that while dealing with Ms.

Biscan in the aftermath of her arrest he took time to explain matters to her in laymen’s terms, telling her why things were being done and what would be happening next. He cited her level of upset as his reason for doing this. After explaining the situation to Ms. Biscan, Constable Asano testified that he went to speak with her husband, who was the passenger in the vehicle, in order to do the same with him.

He testified that the gentlemen’s first language was not English, so explaining the reason for his wife’s arrest and what would be happening next both with the vehicle and his wife, took a bit longer than one might expect. [ 9 ] It was 1:59 a.m., twenty minutes after the arrest, when Constable Asano ultimately left the scene with Ms. Biscan to travel to 11 Division. When questioned about this delay, Constable Asano denied that there was any idle time spent at the roadside.

For example, although he called for a tow truck while still at the scene he testified that he did not wait for it to arrive, he left that task to other police officers at the R.I.D.E. check-stop. Constable Asano maintained that throughout this twenty-minute period he was attending to the tasks described above, each of which he characterized as important and not matters that should be rushed. [ 10 ] As noted, Constable Asano and Ms. Biscan left the scene for 11 Division at 1:59 a.m. Before they left, Constable Asano radioed his dispatcher to advise that he had, “one in custody for excess blood alcohol”.

He testified to travelling the most direct route to 11 Division, and arriving there at 2:26 a.m. [ 11 ] During his testimony Constable Asano denied that after leaving the scene with Ms. Biscan they returned in order to retrieve something. This was the only aspect of Constable Asano’s evidence that was challenged by the defendant. She testified that early into their journey, a few intersections away from the location of the check-stop, Constable Asano turned the police cruiser around and travelled back towards the scene of her arrest. The windows in the rear of the cruiser were rather small, so Ms.

Biscan could not see exactly what was happening. Her impression was that after briefly stopping the cruiser, Constable Asano opened his door and retrieved something from the roadway. She testified to asking what was going on and being told that it did not concern her and to sit quietly. According to Ms. Biscan, the doubling-back to the vicinity of the check-stop delayed their return to the police station by about three to five minutes. [ 12 ] Once at 11 Division, the defendant was processed and lodged in cells in the usual manner. At 2:40 a.m. Constable Asano transferred custody of Ms.

Biscan to the Qualified Technician, Constable Simmonds. Although she had initially declined to speak to a lawyer, once inside the breath room Ms. Biscan asked to speak with duty counsel. A message was left for duty counsel at 2:44 a.m. That call was returned at 2:55 a.m. Ms. Biscan was then afforded an opportunity to speak privately with duty counsel. The call lasted until 2:59 a.m. [ 13 ] According to the Certificate of a Qualified Technician – filed as an exhibit at trial pursuant to section 258(1) (

g) of the Criminal Code , the admissibility of which is subject to the ruling on the Charter application – Ms. Biscan provided her first breath sample at 3:02 a.m., and her second at 3:25 a.m. The analysis of her breath samples by an Intoxilyzer ® 8000C, which is an approved instrument as defined in subsection 254(1) of the Criminal Code , were exactly the same; 130 milligrams of alcohol in 100 millimetres of blood. III. The Positions of the Parties [ 14 ] The defendant has brought an application alleging a violation of her

section 8 Charter right. She submits that the Crown did not discharge its burden of demonstrating the reasonableness of the warrantless seizure of her breath samples. In short, she argues that the Crown failed to elicit evidence capable of establishing that Constable Asano had the required reasonable and probable grounds to lawfully demand breath samples from her for analysis by an approved instrument, as required by subsection 254(3) ( a )(

i) of the Criminal Code . [ 15 ] The defendant’s

section 8 Charter application focuses on what was absent from Constable Asano’s evidence. Although he testified that Ms. Biscan’s breath sample at the roadside registered a “fail” on the approved screening device, there was no direct evidence regarding the implications of that result.

For example, the officer did not testify: that the device is designed to ascertain the subject’s blood alcohol concentration; that it is calibrated to register a “fail” when the analysis of an individual’s breath discloses that their blood contains a concentration of alcohol that is over the legal limit; and that the failed test result therefore provided him with reasonable grounds to believe that the defendant was operating a motor vehicle with a blood alcohol level over the legal limit.

The defendant submits that these are matters that must be proved through evidence; they are not appropriately the subject matter of judicial notice. [ 16 ] If a Charter violation is established, by way of remedy, the defendant seeks an order excluding from evidence the results of the breath testing as disclosed by the Certificate of a Qualified Technician. If this remedy is granted the Crown would fail to prove its case and the dismissal of the charge would follow. [ 17 ] Should I conclude that there was no Charter violation, the defendant offers an alternative defence to the charge.

She contends that the Crown should not be permitted to rely on the presumption of identity furnished by subsection 258(1) ( c )(ii) to establish that the concentration of alcohol in her blood at the time of testing was the same as at the time of driving. In so arguing, she submits that the Crown failed to establish that each sample was taken “as soon as practicable” after the time of the alleged offence, which is an essential precondition for engaging the presumption. Without the presumption, there is an absence of evidence capable of proving the defendant’s

blood alcohol level at the time of driving and the charge would therefore be dismissed. [ 18 ] The Crown denies that its case suffers from either of the infirmities claimed by the defendant. To begin, the Crown submits that the defendant’s

section 8 Charter right was not violated. Although it concedes that, essentially through oversight, there was an absence of direct evidence regarding the workings of the approved screening device and the implications of a failed test, it argues that direct evidence is not essential. Rather, the Crown relies on the whole of the record in arguing that it has discharged its burden through circumstantial evidence. It maintains that when the entirety of the evidence is considered, it has demonstrated, at least on a balance of probabilities, that the seizure of Ms.

Biscan’s breath samples for analysis by the approved instrument was based on reasonable and probable grounds to believe that she was operating a motor vehicle with a blood alcohol level in excess of the legal limit. If correct, this would mean that the seizure of the defendant’s breath samples was lawful, reasonable and Charter compliant. [ 19 ] Alternatively, if I conclude that

section 8 of the Charter was violated, the Crown argues against the exclusion of the evidence. It contends that any violation is more theoretical than real, stemming from a failure in proof rather than any actions on the part of Constable Asano. The Crown submits that any resulting breach was, at most, technical in nature.

Given this, it argues that under section 24(2) of the Charter the repute of the administration of justice would be better served by the admission of the evidence rather than it exclusion. [ 20 ] With respect to the “as soon as practicable” requirement, the Crown’s position is that it has discharged its burden. It contends that there is simply no basis on this record to suggest that the breath testing was unreasonably delayed, so as to preclude the Crown from relying on the presumption found in subsection 258(1) ( c )(ii). IV.

Analysis [ 21 ] I am required to address two issues in deciding this case, I will do so in turn. A. Was the defendant’s

section 8 Charter right violated? [ 22 ] A warrantless search or seizure is presumed to violate

section 8 of the Charter . [2] To displace that presumption the Crown bears the burden of establishing, on a balance of probabilities, that the search or seizure was authorized by law, the law itself is reasonable, and that it was carried out in a reasonable manner. [3] These general principles have equal application to the taking of breath samples in response to a breath demand, which amounts to a “seizure” for

section 8 Charter purposes. [4] [ 23 ] In this case there is no issue with respect to the reasonableness of the relevant statutory provision ( subsection 254(3) ) or the manner in which the breath samples were taken. The dispute is focussed on whether the lawful preconditions for making an approved instrument breath demand were established. As the Supreme Court of Canada has made clear, “[t]he onus is on the Crown to prove that the officer had reasonable and probable grounds to make the demand”. [5] [ 24 ] The reasonable and probable grounds standard is well established.

In the context of section 254(3), the Supreme Court of Canada has explained that it “entails both an objective and subjective component.” [6] In that regard it, “requires that the police officer subjectively have an honest belief that the suspect has committed the offence and objectively there must exist reasonable grounds for this belief”. [7] This is also the minimum constitutional standard for a reasonable search or seizure under

section 8 of the Charter . The same standard therefore governs in terms of the statutory and constitutional requirements for taking breath samples and analyzing them using an approved instrument. [8] [ 25 ] Turning to the present case, the question to be addressed is whether the Crown has discharged its burden of establishing that Constable Asano had reasonable and probable grounds to believe that Ms. Biscan was operating a motor vehicle with a blood alcohol level in excess of the legal limit?

In making this determination, I am required to consider the totality of the circumstances. [9] [ 26 ] In my view, the totality of the circumstances includes the legislative scheme that governs the investigation of alcohol related driving offences. Although evidence is required to prove adjudicative facts, for example the who, what, where, when, and why of any given case, courts are entitled to take notice of legislative facts. [10] In my view, as I consider the evidence, I am obliged to do so against the backdrop of the relevant legislative provisions and their purpose.

I note that this appears to be the approach taken by the Supreme Court of Canada in Bernshaw . [ 27 ] In that case, in the course of addressing a

section 8 Charter claim focused on the adequacy of a police officer’s grounds for making a breathalyzer demand, the majority made a number of general comments regarding the relevant statutory scheme. For the majority, Sopinka J. wrote: It is clear that Parliament has set up a statutory scheme whereby a screening test can be administered by the police merely upon entertaining a reasonable suspicion that alcohol is in a person's body. The purpose behind this screening test is evidently to assist police in furnishing the reasonable grounds necessary to demand a breathalyzer.

The roadside screening test is a convenient tool for confirming or rejecting a suspicion regarding the commission of an alcohol-related driving offence under s. 253 of the Code . A "fail" result may be considered, along with any other indicia of impairment, in order to provide the police officer with the necessary reasonable and probable grounds to demand a breathalyzer. Normally, where a properly conducted roadside screening test yields a "fail" result, this alone will be sufficient to furnish a police officer with such grounds.

Nonetheless, as I stated at the outset, it cannot be said that a "fail" result per se provides reasonable and probable grounds. If that were the case, it was open to Parliament to indicate this intention in the Criminal Code . Yet, nowhere in s. 254 is it indicated that a "fail" result on an approved screening device is deemed to provide reasonable and probable grounds. Thus, it is necessary to determine as a question of fact in each case whether or not the police officer had an honest belief based on reasonable and probable grounds that the

suspect had committed an offence under s. 253 of the Code . [11] These observations must be read in light of the majority’s ultimate conclusion in Bernshaw that if a police officer knows that a suspect recently consumed alcohol and that the presence of mouth alcohol could undermine the reliability of a roadside screening test result, a “fail” standing alone would not furnish the required grounds to make a breath demand. [12] (It deserves mentioning that I did not hear any evidence in this case giving rise to a concern regarding the potential influence of mouth alcohol on the results of Ms.

Biscan’s roadside screening test.) [ 28 ] I turn next to a consideration of the actual evidence in this case. I do so with the legislative backdrop for the investigation of alcohol related driving offences firmly in mind, especially the purpose for which Parliament has authorized the police to make use of approved screening devices. [13] By way of brief

summary, it will be remembered that Constable Asano testified as follows: • That on the morning in question he was stopping vehicles at a R.I.D.E. check-stop in order to check on the sobriety of drivers. • That after being stopped, the defendant admitted to consuming alcohol and the officer detected the odour of alcohol on her breath. • That the officer then read the defendant a formal roadside breath demand, in order to “check on her sobriety”. • That the roadside breath test was administered using a Dr ä ger Alcotest 6810 , which is an “approved screening device”. • That the approved screening device had recently been calibrated, if it were otherwise the device would not have accepted a breath sample.

In addition, the officer had completed two recent self-tests on the device before using it to test the defendant’s breath, and both tests had registered a “0” result.

Consequently, the officer was of the opinion that the approved screening device was in proper working order on the morning in question. • That the defendant’s breath sample registered a “fail” on the approved screening device. • That immediately after the failed result, the officer arrested the defendant “for excess blood alcohol”. • That shortly thereafter the officer read the defendant the formal demand for her to accompany him for the purposes of providing breath samples for analysis by an approved instrument. • And, finally, before transporting the defendant, the officer advised his dispatcher that he had “one in custody for excess blood alcohol”. [ 29 ] In my view, considering the totality of the circumstances, which includes not only the evidence but also the purpose for which Parliament has authorized the use of approved screening devices; the Crown has discharged its burden.

On this record, I am satisfied that it is more likely than not that Constable Asano subjectively believed that Ms. Biscan had committed the offence of operating a motor vehicle with a blood alcohol level in excess of the legal limit. Although the officer did not give direct evidence in that regard, the circumstantial evidence, [14] including the sequence of events, the failed result on the approved screening device test, and the officer’s decision to arrest the defendant “for excess blood alcohol” immediately following the failed test, make this conclusion irresistible.

This very same evidence causes me to conclude that there were objectively reasonable grounds for the defendant’s arrest and the approved instrument breath demand. [ 30 ] In coming to this conclusion, I am of the view that the circumstances of this case are rather different than the scenarios involved in the two cases relied upon by the defendant. In the first case, R. v. Mahar , [15] the breath technician who made the demand did not give any evidence regarding the supporting grounds.

Instead, after noting that the arresting officer had shared unspecified information with him, he simply testified that the information received had furnished him with reasonable and probable grounds. In concluding that the trial judge erred in failing to find a

section 8 Charter violation in these circumstances, the

Summary Conviction Appeal Court emphasized that the technician’s conclusory assertions were incapable of supporting an inference that he possessed the required grounds to make a breath demand. [16] [ 31 ] In the second case, R. v. Sookraj , [17] the officer who read the formal breath demand was not directly involved in administering the approved screening device test or in carrying out the arrest. Rather, he had received custody of the defendant and then made an approved instrument demand.

Although that officer was questioned a fair bit regarding the basis for his demand, the trial judge concluded that his evidence “demonstrated an utter lack of knowledge and understanding of the over 80 investigation of which he was a part.” [18] As a result, the trial judge concluded that the Crown had failed to demonstrate that the officer who made the breath demand subjectively believed that the defendant was operating a motor vehicle with excess blood alcohol. [ 32 ] In my view, the decisions relied upon by the defendant involve circumstances that are the converse to the situation in this case, where there is an abundance of circumstantial evidence to establish the adequacy of Constable Asano’s grounds.

The claimed deficiency here is that the officer failed to explain why the circumstances furnished him with reasonable and probable grounds to believe the defendant was operating a motor vehicle with excess blood alcohol. Although it is undoubtedly common practice where a police officer has recited his or her grounds for the Crown to then ask the officer about the opinion that those grounds caused him to form, the expression “reasonable and probable grounds” is not a magical incantation that a police officer must repeat in order to constitutionally immunize an investigation.

As Hill J. explained, a police officer’s “failure to track the statutory language in his testimony is not, in and of itself, fatal to the existence of reasonable and probable grounds”. [19] [ 33 ] In my view, the circumstantial evidence in this case, considered in light of the legislative scheme, establishes that the taking of the defendant’s breath samples for analysis by an approved instrument was prefaced upon the required reasonable and probable grounds to believe that she was operating a motor vehicle with a blood alcohol level in excess of the legal limit.

The seizure of her breath samples for analysis by the approved instrument was accordingly lawful. This conclusion is determinative of the defendant’s application under

section 8 of the Charter . That application is therefore dismissed.

B. Were the breath samples taken as soon as practicable? [ 34 ] The Crown’s case against the defendant relies on the presumption of identity found in subsection 258(1) (

c) of the Criminal Code .

In order to take advantage of that presumption the Crown must establish beyond a reasonable doubt that the samples of the defendant’s breath were “taken as soon as practicable after the time when the offence was alleged to have been committed”. [20] [ 35 ] The Court of Appeal has clarified the meaning of the “as soon as practicable requirement”. [21] That phrase does not require that the breath samples be taken as “as soon as possible”. [22] Rather, it simply means that the tests must be “taken within a reasonably prompt time under the circumstances.” [23] The Court has explained that the, “touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably.” [24] In making this assessment, I am required to consider the whole chain of events, remembering that the Criminal Code permits an outside limit of two hours from the time of the alleged offence to the taking of the first sample. [25] In establishing this requirement the Crown is not required to provide a detailed explanation of what occurred during every minute that the accused was in custody. [26] Rather, the Court of Appeal has instructed that the “as soon as practicable” requirement “must be applied with reason.” [27] [ 36 ] After carefully considering the evidence, in particular the chronology of the relevant events, I am satisfied that the Crown has discharged it burden of establishing that the breath samples were taken as soon as practicable.

In my view, the evidence did not reveal any unreasonable delays in the administration of the breath tests. Although the twenty minutes spent at the roadside after the failed approved screening device test was a significant period of time, Constable Asano more than adequately explained the reasons for this delay. That time was taken up performing important tasks that were directly connected to the defendant’s arrest.

In my view, in all of the circumstances, the delays occasioned by Constable Asano’s actions were reasonable. [ 37 ] It will be remembered that the only point of contention as between the Crown and the defence in relation to the chronology was whether or not Constable Asano and the defendant double-backed to a point near the scene of her arrest so that the officer could retrieve something from the roadway. Constable Asano denied that this happened, while Ms. Biscan insisted it had.

For reasons that would be apparent to anyone reviewing the defendant’s evidence, I would be inclined to prefer Constable’s Asano’s version of the events. Nevertheless, even assuming that Ms.

Biscan’s recollection is correct, I do not think a three to five minute delay occasioned by doubling- back to retrieve an item from the roadway (something that common sense suggests would likely have been some sort of road hazard) would warrant a finding that the police unreasonably delayed the administration of the breath tests. [ 38 ] Accordingly, I have concluded that the Crown has discharged its burden of demonstrating that the breath samples were taken as soon as practicable. This finding serves to engage the presumption found in subsection 258(1) ( c ).

The result is that the Crown has proven beyond a reasonable doubt that the defendant was operating her motor vehicle on the morning of October 20, 2013, after having consumed alcohol in such a quantity that the concentration in her blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood. VI. Conclusion [ 39 ] I find the defendant guilty of operating a motor vehicle with a blood alcohol level in excess of the legal limit, contrary to section 253(1) (

b) of the Criminal Code . __________________________ Justice James Stribopoulos Released: November 5, 2014