R. v. Jacob, 2012 MBCA 19

Citation: R. v. Jacob, 2012 MBCA 19 Date: 20120314 Docket: AR 11-30-07647 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : HER MAJESTY THE QUEEN ) A. K. Gowenlock ) for the Applicant (Appellant) Respondent ) ) R. N. Malaviya ) for the Respondent - and - ) ) Chambers motion heard: ) November 10, 2011 JIMEEL ABDULLAH JACOB ) ) Decision pronounced: (Accused) (Respondent) Applicant ) March 14, 2012 BEARD J.A. I.

THE ISSUE 1 The accused has filed both a motion under rule 42 of the Court of Appeal Rules to extend the time to file his motion for leave to appeal and notice of appeal and a motion for leave to appeal under s. 839 of the Criminal Code (the Code ). When the parties appeared before me, the Crown indicated that she was not opposed to the extension of time to file the motion for leave to appeal and was prepared to argue the motion for leave.

The accused was in agreement, so we proceeded on that basis. 2 This matter arises from charges against the accused of driving while disqualified pursuant to s. 259(4) of the Code and refusing to provide a breath sample pursuant to s. 254(5) of the Code . The relevant legislation is attached as Appendix A. The matters proceeded by way of a

summary conviction trial in the Provincial Court, following which the accused was acquitted on both counts. The Crown appealed the acquittals by way of

summary conviction appeal to the Court of Queen’s Bench. The

summary conviction appeal judge (the appeal judge) granted the appeal on both counts and ordered a new trial before a different judge of the Provincial Court for both matters. 3 The matter now comes before this court as a second-level appeal from the order of the appeal judge. 4 The grounds of appeal, as they appear in the notice for leave to appeal, are as follows: - That the appeal judge committed an error in law in his application of the test for misapprehension of the evidence in finding that the learned trial judge misapprehended a portion of the Crown evidence by failing to address it in his oral reasons. - That the appeal judge committed an error in law in finding that the learned trial judge ought to have inferred that the Crown had proven that an approved screening device (ASD) had been used in proving that Constable Ring had reasonable and probable grounds to make a demand of the accused to provide a breath sample. - That the appeal judge committed an error in law in substituting his views of the evidence for those of the learned trial judge where it was inappropriate to do so. 5 The first and third grounds relate to the charge of driving while disqualified, while the second ground relates to the charge of refusing a breathalyzer.

II. THE FACTS 6 The appeal judge set out the facts regarding the underlying events as follows (at pp. 1-2): The two charges arise out of an incident that took place in the early hours of September 13th, 2008. The evidence disclosed some disparate recollections as to the details of what occurred at that time, but it is common ground that shortly after 2:20 a.m. two City of Winnipeg police officers in a cruiser car followed and stopped a Neon automobile. One of the police officers, namely Constable Ring, approached the vehicle after it stopped in response to the flashing lights of the cruiser car.

The accused was found alone in the Neon automobile but situated in the passenger seat. Assistance was requested by Constable Ring from a patrol sergeant in a local roadside

screening device vehicle. After releasing the accused to the sergeant for an alcohol screening test, Constable Ring was advised by thesergeant that the accused had failed the roadside test and Constable Ring detained the accused further for a normal breathalyzer test to beadministered at the police station in the Public Safety Building. En route the accused was read a breathalyzer demand and refused totake it. After a period of detention at the Public Safety Building the accused was formally charged with the two charges. The matter came on for trial on August 6th, 2009 and October 28th, 2009.

Judgment was reserved and when pronounced, the accusedwas acquitted on both charges. At the trial the evidence of the Crown consisted of testimony from the two police officers, namely Constable Ring and ConstableGordon. The accused called one witness, namely Mr. Kevin King. The accused did not testify. 7 Mr. King testified that he had been driving the vehicle and that the accused was a passenger. He said that he parked the carand ran into a nearby club to pick up a friend.

He couldn’t find the friend and, when he returned, he saw the police and decided not to goback to the car, but, instead, walked to a nearby convenience store and, from there, took a taxi home. III. STANDARD OF REVIEW 8 The standard of review regarding a

summary conviction appeal under s. 839 of the Code was recently set out by FreedmanJ.A. of this court in R. v. R.W.M., 2011 MBCA 74, 270 Man.R. (2d) 29 as follows (at paras. 23-26): 23 In R. v. McCorriston (G.J.) (2010), 2010 MBCA 3 , 251 Man.R. (2d) 106; 478 W.A.C. 106; 2010 MBCA 3, mycolleague Steel, J.A., set out succinctly the standard of review to be applied in a case like this (at para. 16): The criteria to be met before leave to appeal is granted are well settled and set out in s. 839 of the Criminal Code and in the cases ofR. v.

Schalla (K.T.) (2007), 2007 MBCA 104 , 220 Man.R. (2d) 69; 2007 MBCA 104, at para. 1, and R. v. Langlois (D.J.)(2008), 2008 MBCA 72 , 228 Man.R. (2d) 256; 427 W.A.C. 256; 2008 MBCA 72. They are as follows:

(1) Any ground of appeal must involve a question of law alone.

(2) Even if a question of law does arise, leave should only be granted if the matter raises an arguable case of substance.

(3) The arguable case must be of sufficient importance to merit the attention of the full court. Since the case has already been reviewedby a judge of the Court of Queen’s Bench, which is the primary appellate court to review such matters, there should be a compellingreason to allow this second level of appeal. One compelling reason would be that the issue raises matters that are of significance to theadministration of justice or the development of the law beyond this case. See R. v.

Denys (C.D.) (2009), 2009 MBCA 39 ,240 Man.R. (2d) 13; 456 W.A.C. 13, 2009 MBCA 39. 24 This last criterion was explained in detail by Doherty, J.A., in R. R. [2008 ONCA 497, 90 O.R. (3d) 641] (at paras. 20, 24-27): In indictable proceedings, access to the second level of appeal, the Supreme Court of Canada, is very limited. Most appeals to theSupreme Court of Canada in indictable proceedings are governed by ss. 691-693 of the Criminal Code. Except in very limitedcircumstances (where a judge of the Court of Appeal has dissented on a question of law), leave to appeal must be obtained from theSupreme Court.

As well, that court’s jurisdiction is limited to questions of law. The Criminal Code does not set out the criteriagoverning the granting of leave to appeal. In practice, the court grants leave only where the proposed questions of law have a significantpotential impact on the administration of justice beyond the specifics of the case. ... In addressing the scope of appellate review contemplated by s. 839(1), three aspects of that provision deserve emphasis. First, theappeal is not a second appeal from the trial decision; rather, it is an appeal from the decision of the Superior Court judge.

Second, theappeal is limited to questions of law alone. Like the Supreme Court of Canada on indictable appeals brought under the Criminal Codeprovisions, this court cannot revisit factual findings or correct errors of mixed fact and law. Third, even if the applicant raises a questionof law arising out of the decision of the Superior Court judge, the applicant must still convince this court (or a judge of this court) thatleave to appeal should be granted on that question of law. Not all questions of law merit a second appeal. These three features of s. 839, all of which are found in the corresponding

section dealing with leave to appeal to the Supreme Courtof Canada in indictable matters, make it clear to me that a second appeal in

summary conviction proceedings should be the exception andnot the rule.

There is no sensible criminal law policy that would justify more extensive rights of appeal in relatively minor criminal matters than those available in the most serious criminal cases. As the relevant provisions of the Criminal Code indicate, this court’s role in the appellate process in

summary conviction proceedings is similar to the role played by the Supreme Court of Canada in appellate proceedings in indictable matters. Both the parallel statutory provisions and policy dictate that this court should, in exercising its discretion to grant a second appeal in a

summary conviction proceeding, adopt a similar approach to that taken by the Supreme Court of Canada on applications for leave to appeal in indictable offences. Furthermore,

summary proceedings are intended to be expeditious. Routinely granting a second full appeal on the merits from the trial decision hardly furthers that goal. The requirement that the applicant obtain leave to appeal in s. 839 provides the mechanism whereby this court can control its

summary conviction appeal docket. Access to this court for a second appeal should be limited to those cases in which the applicant can demonstrate some exceptional circumstance justifying a further appeal. (Underlining added) 25 That explanation has been adopted by this court (see Merasty [2010 MBCA 50 , 258 Man.R. (2d) 1 ] , McCorriston and Denys , among other cases). 26 Thus, the standard which must be met by the applicant seeking a second appeal is quite high.

Not only must the applicant demonstrate a likely error of law by the first-level appeal judge, but they must also show that there is something exceptional about the case warranting a second appeal hearing. 9 I adopt the test for an appeal of an order of a

summary conviction appeal judge set out by Steel J.A. in R. v. McCorriston (G.J.) , 2010 MBCA 3 , 251 Man.R. (2d) 106 , as adopted by Freedman J.A. in R.W.M . IV. DRIVING WHILE DISQUALIFIED (1ST AND 3RD GROUNDS OF APPEAL) The Trial Judge’s Decision 10 The trial judge found that the accused was disqualified from driving and defined the issue on this charge as being whether the Crown had proven beyond a reasonable doubt that the accused was driving the vehicle.

His reasons are brief (at pp. 8-9): King testified that he was the driver of the Neon on September 13, 2008, and that he stopped the vehicle in question and exited same immediately with a view to returning to the Hi-fi nightclub to retrieve a friend who he had agreed to drive home. I cannot disbelieve King or otherwise discount his evidence. The street was dimly lit and it is not unreasonable for me to conclude, based on what I heard, that the evidence transpired as he testified it did.

I cannot, in coming to this conclusion, ignore the evidence of Constable Gordon, who testified that Constable Ring would have conducted a plate check on the Neon before getting out of the cruiser and attending to the driver’s side of the Neon. In doing so, Constable Ring would have had to take his eyes off the Neon, even if for a relatively brief moment. I cannot, in coming to my conclusion, also ignore the evidence that Jacob continuously and throughout the events of the morning in question denied that he was driving. He stated that his friend, Kevin King, was driving and offered the police Mr.

King’s telephone number to follow up on his assertions. King’s evidence is consistent with Constable Ring’s evidence in this regard. The statement made to the police by Jacob that “I was not going to the Empire, I was going to pick him up,” is not the clearest of admissions of driving, to say the least. In any event, said comment is almost immediately followed up by an entry into the logbook of the further denial by Jacob that he was driving on the morning in question.

As stated earlier, after weighing and analyzing the evidence which I do accept, I am left with a reasonable doubt about the guilt of the accused on this charge. I am finding him not guilty of the offence of drive disqualified. The Appeal Judge’s Decision 11 The appeal judge summarized his decision as follows (at p. 19): In this regard I conclude that the learned trial judge misapprehended what evidence was led as to the actual pursuit by the police cruiser of the Neon.

Having said the foregoing, the Crown is entitled to know that when an acquittal occurs that full consideration has been given to all material evidence in the case. There was a misapprehension of evidence in the case. There was a misapprehension of evidence in that major discrepancies between the police officers and Kevin King regarding the path and positioning of the vehicles appeared to go unnoticed. Further, the explanation given by the trial judge that Constable Ring’s attention was diverted by his computer monitor when the Neon came to a stop is also not fully supported by the evidence.

Under the circumstances the Crown has satisfied me that the verdict of acquittal was not reached after an assessment of all of the evidence and I allow its appeal and direct a new trial on that charge before another judge of the Provincial Court. The Appellant’s Position 12 The first ground of appeal on this charge is in relation to the appeal judge’s finding that the trial judge erred in that he misapprehended what evidence was led as to the path of the two vehicles.

The accused argues that the appeal judge committed an error in law in that the failure of the trial judge to address every single discrepancy between the evidence of various witnesses in oral reasons does not lead to the conclusion that the trial judge was unaware of them, especially when these discrepancies are only relevant to a broader finding of credibility and are not in relation to a material fact having a direct impact on a finding of guilt or innocence. 13 The second ground of appeal on this charge relates to the appeal judge’s finding that the trial judge erred in law by substituting his views of the evidence where it was not appropriate to do so, and consequently concluding that the acquittal by the trial judge was unreasonable.

Specifically, the appeal judge found that the trial judge’s finding that Constable Ring could have taken his eyes off the accused’s vehicle for a second while running the licence plate was unsupported by the evidence. 14 The accused argues that, in coming to the conclusion that there was a reasonable doubt that he was driving the vehicle, the trial judge indicated that he could not “ignore the evidence of Constable Gordon, who testified that Constable Ring would have conducted a plate check on the Neon before getting out of the cruiser and attending to the driver’s side of the Neon.

In doing so, Constable Ring would have had to take his eyes off the Neon, even if for a relatively brief moment” (at pp. 8-9). 15 The accused argues that the appeal judge found it unreasonable that the trial judge concluded it was a reasonable possibility that Constable Ring ran the plate after the Neon was stopped and thus was distracted at the precise moment Mr. King left the vehicle.

He argues that the evidence was that it was standard practice to run the plate of someone who was being pulled over and that it was “most likely” that this occurred prior to the Neon coming to a stop, but neither officer had any notes or specific memories of when it was actually done. He takes the position that it is a reasonable possibility that it was done after the Neon had stopped.

He argues that the appeal judge erred in finding that the trial judge’s verdict was unreasonable. 16 On the issue of whether the alleged error meets the test for a second-level appeal, the accused argues that the error constitutes a clear error that justifies the granting of leave to appeal. He also argues that, if the court grants leave to appeal on any one ground, it should grant leave on all grounds to avoid having the matters retried by separate judges.

He also argues that, if it was an error by the appeal judge that results in the granting of leave on any one ground, that creates an exceptional circumstance on which to grant leave on the other grounds. The Crown’s Position 17 The Crown’s primary position is that, particularly regarding these grounds of appeal, the accused had not met the test for a second-level appeal, being that there needs to be something substantial or exceptional beyond this case that would justify this matter being considered by a full panel of this court.

She argues that, even if there was an error by the appeal judge, it does not involve a question of law that has not been settled and is not such a clear and substantial error as to justify a further appeal. 18 The Crown also disagrees with the accused’s proposition that, if leave is granted on any ground, it should be granted on all grounds. Her position is that each ground must be considered on its own merits. She argues that to accede to the accused’s argument would mean that, no matter how many grounds were raised, if even one was successful, all would proceed to hearing.

This would lead to unnecessarily long appeal hearings and overburden the court hearing matters that did not merit any hearing. 19 On the substance of the appeal, the Crown argues that, on a Crown appeal of an acquittal, the following circumstances constitute an error in law, allowing appellate review (see R. v.

J.M.H. , 2011 SCC 45 at paras. 24-32 , [2011] 3 S.C.R. 197 ): 1. making a finding of fact for which there was no evidence; 2. where the legal effect of findings of fact or undisputed fact raises a question of law; 3. an assessment of the evidence based on a wrong legal principle; and 4. a failure to consider all of the evidence in relation to the ultimate issue of guilt or innocence. 20 She argues that, where the issue is whether a trial judge’s findings were not supported by the evidence, the Supreme Court of Canada held in R. v.

Sinclair , 2011 SCC 40 , [2011] 3 S.C.R. 3 , that an appeal court can intervene in the following circumstances (at para. 16): An appellate court will thus be justified in intervening, pursuant to Beaudry [2007 SCC 5 , [2007] 1 S.C.R. 190 ], where a trial judge draws an inference or makes a finding of fact that is (1) plainly contradicted by the evidence relied on for that purpose by the judge, or (2) demonstrably incompatible with evidence that is not otherwise contradicted or rejected by the trial judge. 21 The Crown’s position is that the appeal judge determined that the inferences from the findings made by the trial judge were incorrect or unreasonable and that the trial judge failed to consider all of the evidence in relation to the ultimate issue of guilt or innocence, particularly respecting discrepancies in the evidence.

She argues that both of these were issues properly considered by the

appeal judge and that he committed no errors. Analysis – Driving While Disqualified 22 I agree with the Crown that neither of the two grounds of appeal related to this charge merits a second level of appeal.

Thelaw regarding an appeal of an acquittal on a question of fact or an inference has been very recently considered by the Supreme Court ofCanada in Sinclair and J.M.H., both released in 2011, and the accused has not raised any question of law that remains unresolved andrequires further consideration. 23 Further, the issues raised are particular to the facts of this case and have no potential significance to the administration ofjustice beyond this case.

Without reviewing the grounds in detail, I am not satisfied that the appeal judge committed any error, but evenif he did, it is certainly not a clear or significant error. While any conviction is significant to the accused, the charges are not the mostserious and the outcome is that there will be a new trial, so the accused will be able to reargue his case – he has not been convicted basedon a possible error by the appeal judge. 24 The accused’s alternate argument, being that if I grant leave on any of the three grounds, I should grant leave on all, is alsowithout merit.

Each ground must be determined on its own merit. To do otherwise would result in this court determining many mattersof little or no merit, which would significantly increase the workload of the court to the detriment of having an earlier hearing for thosematters that are truly meritorious. Further, this would significantly and unnecessarily increase the cost of appeals for the parties and thecourts. Conclusion 25 For the reasons set out above, I find that the accused has failed to meet the test for granting leave to appeal on the twogrounds of appeal that relate to the charge of driving while disqualified. V.

REFUSING TO TAKE A BREATHALYZER (2ND GROUND OF APPEAL) The Trial Judge’s Decision 26 While the trial judge acquitted the accused on this charge for two reasons, only one of them is at issue before me, so I willonly deal with that matter. In

summary, the trial judge made the following findings and came to the following conclusions: - Constable Ring had a reasonable suspicion, prior to making the demand for the ASD test, that the accused had consumed alcohol; - there was not sufficient evidence to prove that the device used to perform the ASD test was an approved device; - Constable Ring’s reasonable and probable grounds to make the breathalyzer demand were based on the ASD results, so there mustbe proof that the device used was an approved device; - even if Constable Ring had the requisite subjective belief that there were reasonable and probable grounds to make the breathalyzerdemand, the Crown was not able to establish the objective grounds for that belief without proving that the device was approved; - in the absence of proof that the device was approved, the test results should not have been taken into account in determiningwhether there were reasonable grounds to make the breathalyzer demand; and - without the ASD results, there was insufficient evidence to substantiate the fact that the officer had reasonable and probablegrounds to make the breath demand. 27 These findings resulted in the trial judge acquitting the accused on the charge of refusing to provide a breath sample.

The Appeal Judge’s Decision 28 The appeal judge stated that, where an accused is charged with refusing a breathalyzer, the Crown must prove that the officerwho made the demand had a reasonable belief that the accused had committed an offence under s. 253 of the Code; i.e., that he waseither driving impaired or what is commonly referred to as driving “over .08.” He found that a reasonable belief to make a breathalyzerdemand has both a subjective and an objective component, as described by Sopinka J. in R. v. Bernshaw, (SCC), [1995]1 S.C.R. 254 at para. 62.

He adopted the explanation of an “objective belief” from R. v. Storrey, (SCC), [1990] 1S.C.R. 241, being as follows (at p. 250): …. Rather, it must be objectively established that those reasonable and probable grounds did in fact exist. That is to say a reasonableperson standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest. …. 29 In relation to the ASD result, the appeal judge stated, in

summary (at pp. 26-27): - if a police officer is aware of a deficiency either in the ASD itself or in the manner in which it was being used such that the resultswould be unreliable, that police officer could not claim to have an honest belief that an accused had committed an offence under s. 253(see Bernshaw); and - if the officer refers to the device as an “approved screening device” without identifying the actual make and model of the machine,a trial judge can draw an inference that it was, in fact, an approved screening device (see R. v.

Gundy (T.), 2008 ONCA 284, 235 O.A.C.236). 30 The appeal judge specifically rejected the decision in R. v. Arsenault (D.J.), 2005 NBCA 110, 295 N.B.R. (2d) 123, being

that the Crown must prove that the machine was an approved device in order to prove that reasonable grounds existed to make thedemand and that the court must not assume that the device used was an approved device. Instead, the trial judge pointed to Gundy,wherein the court permitted the trial judge to make inferences as to whether or not an approved device had been used, based on the use ofthe word “approved” in a situation where the officer could not provide the correct model of the device.

The appeal judge found thatGundy does not require that the officer at least utter the word “approved” to establish the existence of reasonable grounds. 31 The appeal judge then addressed the situation in this case, where there was no use of the word “approved screening device”and no evidence from Sergeant Turner, the officer who performed the ASD test.

The only evidence was from Constable Ring, whothought that ASD meant “alcohol screening device” and who testified that he was advised by Sergeant Turner that the accused had“failed the ASD test.” 32 The appeal judge found that an officer’s belief can be based on the hearsay evidence of a plausible witness and that toestablish the reasonable belief test in Bernshaw, a police officer can testify about information received from another police officer. Forthese propositions, he was relying on R. v. Strongquill (1978), (SK CA), 43 C.C.C. (2d) 232 at 234-35 (Sask. C.A.)and R. v.

Sesula (1991), (SK CA), 93 Sask.R. 271 at para. 5 (C.A.). 33 He then stated that Gundy permitted him to make inferences as part of the determination as to whether there were reasonablegrounds, and he looked at the facts to which Constable Ring testified to determine whether he had reasonable grounds under s. 253.

Thefacts known to Constable Ring to which the appeal judge referred (from which I have edited some irrelevant details) are as follows (at p.28): - he saw the car driven in a manner consistent with some degree of impairment – signalling to turn right and then proceeding in astraight direction and making two right turns without signalling; - he did not see anyone get out of the vehicle; - when the window was opened, he could smell alcohol and the accused’s eyes were “glossy” and his speech was slightly slurred; - he took the accused to the A.L.E.R.T. van, ostensibly to undergo an ASD test to be administered by Sergeant Turner; - when the accused came out of the van, Sergeant Turner advised Constable Ring that the accused had failed the ASD test; - Constable Ring understood that a failure of the ASD test would demonstrate that the accused had been driving in excess of .08; and - although Constable Ring did not use the word “approved,” he did refer to “an ASD,” the short form for an approved screeningdevice. (Constable Ring testified that “ASD” was short for “alcohol screening device.”) 34 He found that, “[w]hen all of these factors are put together and when viewed objectively as if a reasonable person had thisinformation, there [was] … sufficient information” to make the breathalyzer demand (at p. 29).

Clearly, one of the factors to which theappeal judge refers and on which he is relying is the result of the ASD test, the use of which is at issue. 35 The appeal judge also noted that Constable Ring and Sergeant Turner were in the neighbourhood that evening because theywere targeting impaired drivers. The appeal judge concluded that (at p. 29): …. Constable Ring, just like the average Winnipeg citizen, is entitled to assume that his superiors have arranged to screen drivers foralcohol using appropriate equipment.

There was no evidence that the equipment used in this case was in any way deficient, or even if itwas, that Constable Ring was aware of the deficiency. Therefore, to demonstrate that he had a reasonable belief, he is entitled to testifyas to what he was told by the superior officer who performed an ASD test. …. 36 He then rejected the argument of the accused, which he had explained as being that the Crown had to prove that the deviceused was an approved screening device and that the Crown’s failure to do so was fatal to the charge.

The Accused’s Position 37 The accused explains this ground of appeal as requiring a determination of “to what extent the Crown must show that anapproved screening device had been used if a failure of a screening test constitutes the reasonable grounds to make a breath demand.” 38 He argues that the appeal judge agreed that there was no evidence that the police used an approved screening device, but hefound that all of the circumstances known to Constable Ring, including the results of the screening test, were sufficient to constitutereasonable and probable grounds to make the demand.

He argues that this conclusion was an error because both police officers concededthat, without the fail on the screening device, they did not have the required reasonable grounds to make the breathalyzer demand. Without evidence that the device was approved, his position is that the Crown is essentially asking the court to take judicial notice of thefact that any roadside screening device used by the police is an approved device. 39 The accused argues that, while cases like R. v. Kosa (1992), 42 M.V.R. (2d) 290 (Ont.

C.A.) and Bernshaw state that anofficer’s subjective belief that they were using an approved screening device is enough for the court to draw an inference that the devicewas, in fact, approved, his position is that, in this case, the officers did not testify to even that subjective belief. While the officers wereusing the equipment provided by the police force, the accused argues that that evidence alone, if accepted, suggests that the court shouldfind the necessary belief simply because the equipment was being used by the police. His position is that this is not sufficient, and betterevidence is required.

40 The accused argues that, absent the results of the roadside screening test, the other indicia of impairment were not sufficient to meet the level of reasonable and probable grounds.

In addition to not meeting the objective test, Constable Ring also did not, subjectively, believe that those factors were sufficient to constitute reasonable and probable grounds without the roadside screening results. 41 On the question of whether this issue is of sufficient importance to meet the test for a second-level appeal, the accused argues that the general issue of what constitutes reasonable and probable grounds to make a breathalyzer demand and what evidence will satisfy the requirement to prove that the screening device that was used was approved have been considered by several courts of appeal and the Supreme Court of Canada, but have not been considered by this court.

He argues that roadside testing is a significant invasion of privacy and should only be done using an approved screening device, which criterion is an important part of the screening program. 42 He also argues that, in those cases that have considered the question of the degree of proof that is required to prove that a device was approved, there was at least some evidence from the police officer that the screening device was approved. In this case, there was none, which makes it a novel issue.

He argues that, if the appeal judge’s decision is left to stand, it will introduce a significant change in the law regarding proof that a screening device was approved, allowing courts to make an assumption that the device was approved unless there is evidence to the contrary. He argues that that is an error in law that should be corrected by this court.

The Crown’s Position 43 The Crown argues that the issues related to the refusal do not turn on the question of whether the screening device was approved, but on whether Constable Ring had reasonable and probable grounds to make the breathalyzer demand. 44 She also argues that Constable Ring did not testify that, but for the fail on the ASD, he would not have found other sufficient indicia of impairment.

She acknowledged that the ASD result was one of the factors on which the officer relied, but he also outlined a number of other indicia of impairment and he did not testify that he would not have had sufficient grounds without the ASD results. 45 On the issue of the use of the ASD in playing a role in forming the grounds for a demand, the Crown argues that there are a number of relevant cases, including Gundy and Bernshaw, some of which are more current than the Arsenault decision that was rejected by the appeal judge.

She argues that, given that the ASD was being used in a roadside screening program set up for that purpose and that the use of the device was appropriate, the ultimate issue is whether, along with the several other factors outlined by the appeal judge, the officer had the subjective and objective belief that made up the grounds for the demand. 46 She notes that the trial judge did not make reference to those other indicia in coming to his decision; rather, the whole of his decision regarding the refusal turned on whether or not there was an approved screening device and not on whether there were sufficient grounds, separate and apart from that factor. 47 She argues that, when all of the factors are considered together and viewed objectively as if a reasonable person had the information, there was sufficient information to make the breathalyzer demand. 48 Finally, she takes the position that this ground of appeal does not raise an issue that warrants the attention of this court.

She argues that, if the sole basis for the breathalyzer demand had been the ASD result and the only issue in this case was whether or not it needed to be proved that the screening device was an approved device, then there may be a question that warranted the attention of the court; but, that not being the case, leave to appeal should be refused.

Analysis – Refusing a Breathalyzer Importance of the Approved Screening Device Test Result 49 The first issue to be addressed is the importance that the ASD fail result played in forming the reasonable and probable grounds to make the breathalyzer demand. 50 The appeal judge and the Crown take the position that the ASD result was only one of many factors that were relevant and were weighed by Constable Ring in determining that there were reasonable and probable grounds.

The Crown argues that the trial judge erred in focussing on the ASD result and not considering the entire list of factors that were referred to by the appeal judge (which are listed at pp. 28-29 of his reasons). 51 The trial judge, on the other hand, considered that the fail result was key to establishing the grounds to make the breathalyzer demand, stating that “[i]n the circumstances of this case, it is clear that the officer’s reasonable and probable grounds to make a breathalyzer demand revolved around the results of the screening device” (at p. 11).

The trial judge found that, prior to making the ASD demand, Constable Ring had only a suspicion that the accused was impaired, while the Crown argues that nowhere in the evidence did Constable Ring say that, but for the fail result, he would not have found other sufficient indicia of impairment. 52 The trial judge’s finding, which was that Constable Ring did not have a subjective belief that he had sufficient grounds to make the breathalyzer demand before he received the results of the ASD test, is a finding of fact.

While this finding was not raised as a ground of appeal, it is key to the trial judge’s findings and has been challenged by the Crown in argument. While there was no direct evidence as to whether Constable Ring believed that he had sufficient grounds to make the breathalyzer demand without the ASD test results, this must be considered in light of all of his evidence. 53 As pointed out by the Crown, the officer said, in direct examination, that, after talking to the accused at the car, he concluded that the accused was impaired and he felt that he had an impaired driver on his hands.

This came before he made the ASD demand. It should be noted that, while he also said that he made the breathalyzer demand because “in my opinion [the accused] was impaired” and that “he was clearly intoxicated,” that came after Constable Ring had received the ASD test result. 54 Constable Ring also said, in direct examination, that an ASD is used “if you have someone you suspected of impaired

driving” (emphasis added). In cross-examination, Constable Ring acknowledged that, in his notes related to his impression of the accused prior to making the ASD demand, he indicated that the accused was “ possibly impaired ” (emphasis added) and that nowhere in that part of his notes did he say that the accused was intoxicated; i.e., before receiving the results of the ASD test. The only symptoms that he noted prior to making the ASD demand were the smell of alcohol from the car, not from the accused, eyes “glossy” and speech slightly slurred.

The arrest and charge for driving over .08 and the breathalyzer demand all came after Constable Ring received the result of the ASD test, and Constable Ring listed the ASD result as one of the factors on which he relied in coming to the conclusion that the accused was impaired. 55 Clearly, there was evidence upon which the trial judge could come to the conclusion that Constable Ring did not subjectively believe that the accused was impaired or that he had committed an offence under s. 253 until after he received the results of the ASD test.

It was open to him to conclude, as he did, that prior to that time, Constable Ring’s subjective belief was only that he suspected that the accused was impaired; that is, that he was “possibly impaired.” This is consistent with his reasons, wherein he stated that he was “satisfied from the evidence that Constable Ring had a reasonable suspicion that Jacob had consumed alcohol” before he made the ASD demand.

It is clear from this that the trial judge found that the ASD test result was important in raising Constable Ring’s suspicion that the accused was impaired to a reasonable and probable belief on which to make a breathalyzer demand. 56 As the appeal judge stated, the determination of whether there were reasonable and probable grounds to make the breathalyzer demand must be based on all of the facts known to the police officer at the time. It is trite law, however, that those facts cannot be based on evidence that was not properly before the court.

Thus, if the evidence of the ASD result was not properly before the court, it would be an error in law to consider it as one of the factors relevant to the determination of whether there were reasonable and probable grounds. Thus, the issue to be determined is whether this evidence could properly be considered by Constable Ring. Approved Screening Device Test Results 57 The trial judge found that Constable Ring could only rely on the screening results as part of the reasonable and probable grounds if the Crown proved that the device was an approved device.

He stated that the Crown could not establish objective grounds without proving that the device was approved. He found that there was no evidence that the device was an approved device and, therefore, the test results could not be taken into account. 58 The appeal judge accepted that there was no evidence that the screening device was an approved device. He stated, however, that Constable Ring could form his belief based on hearsay evidence and that he could draw inferences from the facts. 59 The hearsay evidence to which he was referring was the testimony of Sergeant Turner.

The difficulty with this is that all that Sergeant Turner said to Constable Ring was that the accused “failed the ASD test.” Sergeant Turner did not testify as to what “ASD” meant to him, or whether he believed that he was using an approved device. Constable Ring first stated that he did not know what ASD stood for, that he does not administer the ASD tests and that he was not trained on the alcohol screening device.

He then said that it meant “alcohol screening device.” There was no evidence of any other conversation between the two officers about the test or the screening device. 60 Although he does not say it in so many words, it would appear from the appeal judge’s reasons that he was of the view that the circumstances of the taking of the ASD test were sufficient for Constable Ring to infer that an approved device was used for the ASD test, given his following observation (at p. 29): It must further be remembered that Constable Ring and Sergeant Turner were in the neighbourhood that evening because they were targeting impaired drivers.

Constable Ring, just like the average Winnipeg citizen, is entitled to assume that his superiors have arranged to screen drivers for alcohol using appropriate equipment. There was no evidence that the equipment used in this case was in any way deficient, or even if it was, that Constable Ring was aware of the deficiency. Therefore, to demonstrate that he had a reasonable belief, he is entitled to testify as to what he was told by the superior officer who performed an ASD test.

This further augments the other considerations in the mind of Constable Ring which I have outlined above. 61 Unfortunately, Constable Ring was not asked about his belief or any inferences that he may have drawn as to whether the screening device was approved, and he gave no evidence in that regard. In fact, there was no evidence that he ever turned his mind to that issue.

He was clearly relying entirely on the information that he received from Sergeant Turner. 62 In coming to his decision, the appeal judge is extending the decision in Gundy from one where reasonable and probable grounds can be based on the testimony of an officer who testifies that he was using an approved screening device, but cannot correctly name the model, to one where the officer has no knowledge whether the device was approved, has not been told whether the device was approved and did not testify that he believed or inferred that the device was approved.

The appeal judge is relying on the fact that the device was located in a police van and operated by another officer as part of an initiative to target impaired drivers as sufficient to permit the officer to rely on the ASD results. This finding goes further than Gundy and runs contrary to the decision in Arsenault , in which Desch ênes J.A., for the court, stated (at para. 21): In this case, Mr. Arsenault challenged the admissibility of the fail result on the basis that the Crown had failed to establish that the apparatus used was an approved screening device.

In my view, unless there is some evidence to establish it, a court is not entitled to assume that a screening device used by a police officer in collecting a breath sample is an approved screening device. That evidence is necessary to establish the statutory authority under which the breath sample is obtained. Peace officers are only entitled to require drivers to provide samples for testing on an approved screening device and the approved screening device is the only one that in fact can be used to collect the sample. The finding by the trial judge that the Crown had failed to establish that Mr.

Arsenault’s breath sample had been collected by using an approved screening device simply means that the fail result was not obtained within the legislative scheme envisaged by the Code . …. Only a “fail” reading on an “approved screening device”, as defined by the Code , can provide the necessary reasonable and probable grounds. ….

[emphasis added] 63 The appeal judge also extended the decision in Bernshaw to apply to the facts of this case. In Bernshaw, the defence experttestified that if an accused had belched, vomited or had an alcoholic drink within the fifteen minutes preceding the ASD test, the testresults could be unreliable. The police officer in Bernshaw made no inquiries regarding any of these issues before he performed theASD test and there was no evidence at the trial to suggest that any of those things had occurred.

The accused in that case argued that,because of the potential unreliability of his ASD test result, it should have been excluded as a factor in determining whether the officerhad reasonable and probable grounds to make the breathalyzer demand.

Sopinka J. held that there was no obligation on the police toinquire about those conditions and that, absent evidence to that effect, there was no reason for the police to believe that the result wasunreliable for that reason, such that the result could not be considered. 64 The appeal judge does not address the important distinction between Bernshaw and the current case, being that the issue ofthe absence of alcohol in the accused’s mouth is not a statutory requirement of s. 254(2), while performing the ASD test on an approvedinstrument is.

In Bernshaw, Sopinka J. appears to assume that there will be evidence that the screening device was approved, in that hestates, “[w]here the particular screening device used has been approved under the statutory scheme, the officer is entitled to rely on itsaccuracy unless there is credible evidence to the contrary” (at para. 80). 65 There is a line of cases that looks at the question of whether the Crown must prove that the ASD was an approved devicewhere a police officer is relying on the ASD test result as one factor to form the reasonable and probable grounds required to make abreathalyzer demand under s. 254(3), in which the courts have concluded that there is no such requirement.

Some of these cases pre-datethe Canadian Charter of Rights and Freedoms (the Charter), while others do not involve a Charter application to exclude evidence orwere not decided on that basis. See R. v. Yurechuk (1982), 1982 ABCA 341 , 42 A.R. 176 at paras. 12-15 (C.A.); R. v. Seymour(1986), (NS CA), 75 N.S.R. (2d) 174 at paras. 7-8 (S.C. (A.D.)); Sesula at para. 2; and R. v. MacLeod (E.J.), 2009YKCA 5, 272 B.C.A.C. 215.

When considering the precedential value of these and other cases, it is important to look at the degree ofidentification of the ASD given by the police officer because, in many cases, there is evidence of at least a partial identification of themodel of the actual device used or some reference to it being an approved device, which is completely lacking in this case. 66 The Charter has introduced certain complexities into the analysis of whether there were reasonable and probable grounds tomake the breathalyzer demand where that demand is based, at least in part, on the result of an ASD test that may not comply with thestatutory requirements.

See, for example, the discussion about the

interpretation of the word “forthwith” as it appears in s. 254(2) inBernshaw, which does not appear to have involved an application to exclude evidence under the Charter. See also R. v. Woods, 2005SCC 42, [2005] 2 S.C.R. 205, and Arsenault. While the accused in this case has not made an application under the Charter to have theresults of the test excluded, it is not clear that Charter values cannot or should not inform the

interpretation and application of ss. 254(2)and (3) of the Code. Conclusion 67 I am satisfied that this ground of appeal raises a question of law alone. The entire area regarding the impaired drivingprovisions of the Code is very technical, and the requirements vary depending on which stage of the process is at issue and exactly whatthe police officer did, said and knew.

Thus, all of the cases have to be examined very carefully. 68 The appeal judge’s reasons raise several issues: - Where the accused has been charged with refusing to take a breathalyzer (so the admissibility of the breathalyzer results is not atissue and there is no outstanding charge under s. 253), does the Crown have to prove that the screening device used to administer a testunder s. 254(2) of the Code was an approved screening device, as contemplated by the legislation, before the police can rely on thoseresults to transform a suspicion of impaired driving into reasonable and probable grounds to make the breathalyzer demand? - Does it matter that the requirement to use an approved device is a statutory requirement, while other issues such as whether themachine was properly calibrated and whether the accused had recently consumed alcohol are not? - While the appeal judge referred to the ability of Constable Ring to rely on the hearsay evidence of Sergeant Turner, SergeantTurner’s hearsay evidence was not that he used an approved screening device or that he had used any particular model of device, but onlythat the accused “failed the ASD test” – can this be evidence that the device was an approved device for the purpose of establishingreasonable and probable grounds when there was no evidence as to what Sergeant Turner meant by an “ASD”? - While Constable Ring can draw inferences, he did not testify that he inferred that the device was an approved device, he did notwatch the test being conducted and he had no experience or training regarding the device or the testing – in fact, there was no evidenceas to Constable Ring’s subjective belief regarding the device – is this required, or is this the situation referred to in R. v.

Johnson (L.G.),1999 BCCA 622, 130 B.C.A.C. 261, where the court should not look at each piece of evidence, but rather look at all of the facts knownto the police officer? - Even though this case does not involve a Charter application to exclude the test result, do Charter values come into consideration? 69 With these issues in mind, I would word the questions for appeal as follows: In the circumstances where there is no Charter application to exclude the ASD test result, did the appeal judge commit an error in law inconcluding that the trial judge erred in finding that the Crown must prove that the screening device used to conduct an ASD test unders. 254(2) was an approved screening device in order for the police to consider the test result in forming the reasonable and probablegrounds to make a breathalyzer demand under s. 254(3) of the Code?

If the answer is no, and the finding is that there is no requirement to prove that the screening device was an approved device, then in determining whether there were reasonable and probable grounds to make the demand: - Did the appeal judge err in law in finding that there were reasonable and probable grounds to make the breathalyzer demand where there was no evidence that Constable Ring had a subjective belief that the screening device was an approved device? - Did the appeal judge err in law in finding that there were objectively reasonable and probable grounds to make the breathalyzer demand based on the facts to which Constable Ring testified, absent some evidence that the screening device was approved? 70 On the question of whether this appeal is of sufficient importance to merit the attention of the full court, I am satisfied that it is, for the following reasons: - there is no decision from this court on the issues raised in relation to this ground of appeal and there are apparently conflicting decisions from other courts of appeal, some over fifteen years old; - the facts of this case seem to be one step further removed from the related cases in that, in this case, there is no evidence that the screening device was an approved device, while in the related cases there was at least some evidence that the device was approved, or partially identifying the model of an approved device, or that the witness before the court was trained to do ASD testing and performed the test; and - there seems to be a suggestion in some cases that Charter values may inform the decision, even absent an application to exclude the evidence under s. 24(2) , which was not considered in many of the earlier cases.

VI. DECISION 71 For the reasons set out above, the accused’s application for leave to appeal on the first and third grounds set out in para. 4 is dismissed and his application for leave on the second ground is granted. J.A. APPENDIX A CRIMINAL CODE Operation while impaired 253.

(1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not, (

a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or (

b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood. Testing for presence of alcohol or a drug 254.

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph ( a ), in the case of a drug, or with either or both of paragraphs (

a) and ( b ), in the case of alcohol: (

a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and (

b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an

approved screening device and, if necessary, to accompany the peace officer for that purpose. . . . . . Samples of breath or blood

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood, or (ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood; and (

b) if necessary, to accompany the peace officer for that purpose. . . . . . Failure or refusal to comply with demand

(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section. Operation while disqualified 259.

(4) Every offender who operates a motor vehicle, vessel or aircraft or any railway equipment in Canada while disqualified from doing so, other than an offender who is registered in an alcohol ignition interlock device program established under the law of the province in which the offender resides and who complies with the conditions of the program, (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or (

b) is guilty of an offence punishable on

summary conviction.