HER MAJESTY THE QUEEN — v. —, 2017 ONCJ 918

CITATION : R. v. Phommachit , 2017 ONCJ 918 DATE : December 11, 2017 COURT FILE No : Halton Region, Central West Region 16-803 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — BOUNTHAVY PHOMMACHIT Before Justice Alan D. Cooper Heard on August 22 & 23, 2017 Reasons for Judgment released on December 11, 2017 Amy M. Stevenson for the Crown Michael K.

Wendl for the accused Bounthavy Phommachit Case History – The Crown Evidence [ 1 ] On March 17 th , 2016, officer Greg Crux, of the Halton Regional Police Service, was driving westbound on Rebecca Street in Oakville and was approaching Great Lakes Boulevard. At 11:31 pm, he noticed a gray Mazda motor vehicle ahead of him about one car length. It was swaying back and forth in its own lane for at least one half kilometer, at times reaching the white paint line dividing the eastbound lane from the westbound one.

The car was driving at a normal speed. [ 2 ] When the Mazda reached Great Lakes Boulevard it turned right on that street, to go northbound, at which point the street becomes Burloak Drive. At Burloak and Prince William Drive the car went into a left turn lane and stopped even though the light was green. The car remained stationary for five or six seconds before making the turn onto Prince William Drive. The officer passed by the Mazda on Burloak, and then did a u-turn.

He saw the Mazda go into a plaza and park in front of a pizza store with its back wheel over the parking line. [ 3 ] The driver of the Mazda was the defendant before the court and he was the sole occupant of the car. He got out of his vehicle and approached the officer at 11:42 pm. He was steady on his feet but his eyes were glassy. The officer told the defendant why he had stopped him.

By this time, the Mazda had crossed over into Burlington. [ 4 ] The defendant said that he had come from Bronte Road and Lakeshore Avenue and had drank one beer and a shot of liquor at a pub called the Coach and four, 15 to 30 minutes before he was stopped. The officer could not detect the odor of alcohol and the defendant spoke with an accent so he was not sure if he spoke with a slur or not. [ 5 ] At 11:43 pm the officer formed a reasonable suspicion that the defendant had been driving with alcohol in his system and requested that a screening device be brought to the scene.

One was delivered by officer Forrest Patterson. [ 6 ] Officer Crux thought that Patterson would have checked the calibration to make sure that the machine was in proper working order. At 11:44 pm he read the screening device demand to Mr. Phommachit. He then did a self test, resulting in a zero level of alcohol, and this confirmed his belief that the machine was functioning properly. He then showed the defendant how to use the device. Mr.

Phommachit provided a sample of his breath into the machine, resulting in a fail at 11:51 pm. [ 7 ] This led the officer to believe that the defendant’s blood alcohol concentration exceeded 100 mg of alcohol in 100 milliliters of blood, and he arrested the defendant for driving with more the legal limit of alcohol in his system.

He read the right to counsel information to the defendant as well as the caution, and at 12:07 am he left the scene and took the defendant to 20 Division in Oakville which was the closest station for a breath test. [ 8 ] They arrived at 12:17am and, after speaking to duty counsel, the defendant was turned over to officer Shane Glenfield, the breath technician. Officer Crux gave his grounds for arrest to officer Glenfield but did not stay for the breath testing.

At 2:23 am he served the defendant with several documents, including a copy of the breath certificate. [ 9 ] In cross-examination, the officer conceded that the Mazda never crossed the centre line of the road, and that Mr. Phommachit was steady on his feet after exiting his car. He did not stumble and spoke normally, although he did have an accent. The defendant was cooperative.

The Calibration of the Screening Device Issue [10] Officer Crux also gave evidence that he was aware that the screening device had to be calibrated every fifteen days and he hadassumed that officer Patterson had made sure this had been done before he turned the device over to him. He agreed that he had made nonote concerning his self test but remembered completing it, and said that he does this in every case he is involved in. [11] Officer Shane Glenfield testified that the defendant gave two samples of his breath which resulted in two readings of 140milligrams of alcohol in 100 millilitres of blood.

The officer said that the defendant was cooperative, talkative, and friendly. His face wasflushed, his eyes were red, and the odour of alcohol was prominent. He said that he had been drinking at a Kelsey’s restaurant. OfficerGlenfield was of the opinion that the defendant would have been impaired at the time of driving. [12] The breath room video was played and it appeared that Mr. Phommachit was alert and responded well and quickly to questionswhich were put to him.

The Vehicle Inventory Search Issue [13] Officer Forrest Patterson gave evidence that before he delivered the screening device to officer Crux he did a self test on it andit worked properly. The device had been calibrated with the last fourteen days and there was a sticker to that effect which was on thedevice. When the defendant gave a breath sample, officer Patterson could smell alcohol. He also did an inventory search of the Mazdabecause it was going to be towed away and impounded for several days.

When cross-examined, he agreed that his notes concerning thesearch of the car were labeled as “search incident to arrest,” but it was really an inventory search which he always conducts in a drinkingand driving case if the vehicle is to be towed. The Overholding Issue [14] The defendant was arrested at 11:51 pm and released at 6:09 am, which the defence complains was not justified, because heought to have been released at 2:23 am, when the breath tests had been done and when officer Crux served him with documents.

TheCrown called two witnesses on this issue, the first being officer Bill Marshall, who was the desk Duty Sergeant at the station when the defendant was booked. [15] Officer Marshall testified that as the officer in charge of the Central Lockup Unit, his shift ran from 4:30pm on March 17, to4:30 am on March 18. After Mr. Phommachit was booked, had spoken to duty counsel, and gave breath samples, he was lodged in a celland fell asleep. When his shift ended, he did not direct anyone to wake up the defendant in order to release him.

Had he been awake, andsomeone was available to pick him up, officer Marshall would have released him before his shift was over. Mr. Phommachit’s identityand address were known, and he was polite, cooperative, and compliant. [16] Under cross-examination, he said that even though he had written “intoxicated” on the prisoner custody record document, thissimply meant to convey the fact that the defendant has consumed alcohol. [17] Officer Milenko Cimbur was the last Crown witness. He relieved officer Marshall as the officer in charge of the lockup unit at4:30 am on March 18. He released Mr.

Phommachit at 6:09 am, and would have done so earlier, but did not so because he was dealingwith another prisoner with a history of seizures, and the station was very busy. Defence Evidence [18] No evidence was called for the defence. Charter Application [19] A Charter application was filed in which it was alleged that the arresting officer did not have objective grounds to believe thatthe screening device was functioning properly, so that the obtaining of the breath sample constituted a breach of

section 8 of the Charter.It was also alleged that

section 8 was breached again when officer Patterson searched the defendant’s vehicle at the time of his arrest.Lastly, the defendant should have been released from police custody earlier than he was, so that

section 9 of the Charter was breached. Itis argued that as a result of these breaches, the breath testing results should be excluded from the evidence, pursuant to section 24(2) ofthe Charter. Onus of Proof [20] The onus is on the defence to establish a breach of sections 8 and 9 of the Charter on a balance of probabilities. However, if asearch was conducted without a warrant, the Crown must prove, on a balance of probabilities, that the search was reasonable: R. v.Collins, (SCC), [1987] 1 S.C.R. 265. If the search was unreasonable and a breach of

section 8, or if

section 9 has beenbreached, the defence has the burden of establishing that the impugned evidence, if admitted, would bring the administration of justice

into disrepute. On the trial proper, the Crown must prove the essential elements of the charges beyond a reasonable doubt. The Charter Sections [21]

Section 8 Everyone has the right to be secure against unreasonable search or seizure.

Section 9 Everyone has the right not to be arbitrarily detained or imprisoned.

Section 24:

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court ofcompetent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed ordenied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regardto all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. Analysis The Calibration of the Screening Device Issue [22] The leading case in Ontario is R. v. Beharriel, 2014 ONSC 1100 , [2014] O.J. No. 882 (S.C.J.).

Durno J. said thefollowing: 56 Based on the caselaw, the following principles can be derived where a police officer uses an ASD to confirm his or her suspicions adriver has driven while impaired or having consumed excess alcohol and the accused alleges his or her s. 8 Charter rights wereinfringed:

i) the determination is made on a case-specific basis; ii) breath samples taken pursuant to an Intoxilyzer demand, involve a warrantless search and the onus is on the Crown to establish, on abalance of probabilities, that the search was reasonable; iii) police officers may, but are not required to, rely on 'fail' readings obtained on an ASD as the basis or one of the bases upon which theyconclude they have reasonable and probable grounds to make an Intoxilyzer breath demand; iv) police officers using an ASD are entitled to rely on its accuracy unless there is credible evidence to the contrary;

v) in doing so, the officer must have a reasonable belief the ASD was calibrated properly and in working order before relying on the 'fail'reading as a component of their reasonable and probable grounds to make an Intoxilyzer demand; vi) a relevant consideration is whether the record discloses that because of his or her training the officer knows that in the circumstances inwhich the ASD is being used the results will be unreliable; vii) whether an officer had that reasonable belief can be established by direct or circumstantial evidence; viii) there is no requirement that the Crown prove the instrument's calibration or that the ASD was working properly; and

ix) there is a heavy onus on the accused to establish a high degree of unreliability in the specific facts of the case. That evidence may arise inthe Crown's case or through defence expert evidence. 57 Applying those criteria, the issue here is whether the circumstantial evidence was such that His Honour could conclude the officerbelieved the 'fail' reading was reliable and that his belief was objectively reasonable.

Were His Honour's findings of reasonable andprobable grounds to make an Intoxilyzer demand and that objectively the administering officer reasonably believed the ASD provided areliable result unreasonable? The test is not whether another judge would have reached the same conclusion or whether this Court wouldhave found the criteria met. Rather, it is whether there was evidence upon which the trial judge could reasonable reach the conclusionshe did. 58 While the evidence was slim, I am not persuaded the findings were unreasonable as defined earlier. His Honour could draw theinferences he did on this record.

Neither, am I persuaded that the trial judge misapprehended the evidence. Nor am I persuaded HisHonour erred referencing the need for "some evidence" the officer had a reasonable belief when considering the objective consideration.As I read the judgment, the trial judge was considering the defence position that there was no evidence on the issues. His Honour foundthat in this case the issue was whether there was some evidence from which he could draw the inferences.

He found that there was andhe drew the inference open to him. [23] Officer Crux testified that he had assumed officer Patterson had checked the calibration of the screening device before heturned it over to him. I have no reason to disbelieve him, and this would provide some basis for his objective belief that the device was inproper working order. He also believed the screening device was working properly because he said that he performed a self test with themachine and it gave a zero breath alcohol reading.

Defence counsel asked me to disbelieve officer Crux because officer Patterson waspresent during the breath testing and made no note of Crux doing a self test. As the Crown points out, Patterson did not say that it did nothappen.

Again, I have no reason to disbelieve officer Crux on this point and I find as a fact that he did conduct a self test. [24] I am satisfied that officer Crux had a valid subjective and objective belief that the screening device was in working order, sothat the Crown has proven on a balance of probabilities that the search, the taking of the screening device breath sample, was reasonable.Therefore, there was no breach of

section 8 of the Charter. The Vehicle Inventory Search Issue [25] The defence submits that officer Patterson breached

section 8 of the Charter when he searched Mr. Phommachit’s vehiclewithout a search warrant. At first, Patterson said the search was incidental to the arrest of the defendant, but later referred to it as aninventory search. [26] Nothing was found which the Crown wishes to introduce into evidence, but the defence maintains that this breach would assistin the section 24(2) exclusion of evidence analysis. [27] The Supreme Court in R. v.

Caslake, (SCC), [1998] 1 S.C.R. 51, made it clear that in some circumstances avehicle search without a search warrant, and without a legitimate purpose, can be an unreasonable search and seizure. See also R. v. Wint,2009 ONCA 52 , [2009] O.J. No. 212 (C.A.). [28] I am satisfied that officer Patterson was not engaged in a search for evidence. He was conducting an inventory search in orderto itemize and retain the defendant’s personal property before it was towed away, because the vehicle was being impounded undersection 48.4 of the Highway Traffic Act. This was for the benefit of Mr.

Phommachit, and a safeguard for the police. Therefore, I findthat there has been no breach of

section 8 of the Charter. The Overholding Issue [29] Based on officer Marshall’s testimony, the Crown conceded that there has been a breach of

section 9 of the Charter. This isbecause he let the defendant continue to sleep instead of waking him and releasing him before his shift ended at 4:30 pm. [30]

Section 498 of the Criminal Code reads as follows: Release from custody by officer in charge 498.

(1) Subject to subsection (1.1), if a person who has been arrested without warrant by a peace officer is taken into custody, or if aperson who has been arrested without warrant and delivered to a peace officer under subsection 494(3) or placed in the custody of apeace officer under subsection 163.5(3) of the Customs Act is detained in custody under subsection 503(1) for an offence described inparagraph 496(a), (

b) or (c), or any other offence that is punishable by imprisonment for five years or less, and has not been taken beforea justice or released from custody under any other provision of this Part, the officer in charge or another peace officer shall, as soon aspracticable, (

a) release the person with the intention of compelling their appearance by way of summons; (

b) release the person on their giving a promise to appear; (

c) release the person on the person's entering into a recognizance before the officer in charge or another peace officer

without sureties in an amount not exceeding $500 that the officer directs, but without deposit of money or othervaluable security; or (

d) if the person is not ordinarily resident in the province in which the person is in custody or does not ordinarilyreside within 200 kilometres of the place in which the person is in custody, release the person on the person's enteringinto a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding$500 that the officer directs and, if the officer so directs, on depositing with the officer a sum of money or othervaluable security not exceeding in amount or value $500, that the officer directs. Exception

(1.1) The officer in charge or the peace officer shall not release a person under subsection (1) if the officer in charge or peace officerbelieves, on reasonable grounds, (

a) that it is necessary in the public interest that the person be detained in custody or that the matter of their releasefrom custody be dealt with under another provision of this Part, having regard to all the circumstances including theneed to • (

i) establish the identity of the person, • (ii) secure or preserve evidence of or relating to the offence, • (iii) prevent the continuation or repetition of the offence or the commission of another offence, or • (iv) ensure the safety and security of any victim of or witness to the offence; or (

b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according tolaw. Where subsection (1) does not apply (2) Subsection (1) does not apply in respect of a person who has been arrested without warrant by a peace officer for an offencedescribed in subsection 503(3). Consequences of non-release

(3) An officer in charge or another peace officer who has the custody of a person taken into or detained in custody for an offencedescribed in subsection (1) and who does not release the person from custody as soon as practicable in the manner described in thatsubsection shall be deemed to be acting lawfully and in the execution of the officer's duty for the purposes of (

a) any proceedings under this or any other Act of Parliament; or (

b) any other proceedings, unless in any such proceedings it is alleged and established by the person making theallegation that the officer in charge or other peace officer did not comply with the requirements of subsection (1). [31] Counsel for the defence argues that this noncompliance with

section 498 of the Criminal Code and admitted breach of

section 9of the Charter should result in an exclusion of the blood alcohol readings under section 24(2) of the Charter. He is not asking for a stayof proceedings under section 24(1). The Crown submits that the breach was minor, and real evidence such as blood alcohol readingsshould not normally be excluded. [32] In his factum, defence counsel referred to R. v. Price, 2010 ONSC 1898 , [2010] O.J. No. 1587 (S.C.J.), at paragraph93, in which Durno J. stated as follows: 93 While Iseler is open to the

interpretation that as long as there is an assessment made of the specific accused, there is no breach of s.9, in the absence of a clear statement from the Court of Appeal, I am inclined to agree with the trial judge that permitting the bloodalcohol level to be the sole determinant results in too narrow a focus. The officer-in-charge must have consideration to all of thecircumstances.

A non-exhaustive list of those considerations would include: the accused's blood alcohol level, whether the accused wascharged with impaired operation, his or her level of comprehension, that the accused is prohibited by statute from driving a motor vehicle(the administrative license suspension), that the accused's vehicle would have been impounded, whether there was a responsible personavailable to pick up the accused although the officer-in-charge has no authority to bind the responsible person as a surety would bebound, whether the accused had a criminal record and if so, its contents, whether the accused had outstanding charges, his or her attitudeand that by drinking and driving the accused has recently exhibited poor judgment.

It is only after an objective analysis of these factorsand any other deemed relevant, that the officer-in-charge can make an informed decision on release. Being guided only by the bloodalcohol level results in too narrow a focus. I agree with the trial judge that if after a consideration of all of the factors, the officerdetermines that the blood alcohol level should be given primary weight in the context of all the considerations, a breach may not beestablished.

[33] Officer Marshall was the officer in charge of the Central Lockup Unit at 20 division station in Oakville when Mr. Phommachitwas brought there. After the defendant was served with documents at 2:23 am, he fell asleep in his cell. He was not released whenMarshall’s shift ended at 4:30 pm, and his responsibilities were taken over by Officer Cimbur. I accept Cimbur’s evidence as areasonable explanation for not releasing the defendant until 6:09 am. Whether to Exclude the Impugned Evidence - Section 24(2) ofthe Charter [34] In R. v.

Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353, the Supreme Court, at paragraph 71, stated as follows: 71 A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring theadministration of justice into disrepute engages three avenues of inquiry, each rooted in the public [page394] interests engaged by s.24(2), viewed in a long-term, forward-looking and societal perspective.

When faced with an application for exclusion under s. 24(2), acourt must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) theseriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious statemisconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message thatindividual rights count for little), and (3) society's interest in the adjudication of the case on its merits.

The court's role on a s. 24(2)application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances,admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking thecategories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins andsubsequent jurisprudence. (

i) The Seriousness of the Charter-Infringing State Conduct [35] The Supreme Court in Grant described this branch of the inquiry as follows: 73 This inquiry therefore necessitates an evaluation of the seriousness of the state conduct that led [page395] to the breach. Theconcern of this inquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be a happyconsequence. The main concern is to preserve public confidence in the rule of law and its processes.

In order to determine the effect ofadmission of the evidence on public confidence in the justice system, the court on a s. 24(2) application must consider the seriousness ofthe violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold therights guaranteed by the Charter. [36] In this case I do not find that the breach was a serious one because there was no bad faith on the part of officer Marshall. Aswell, Mr.

Phommachit would not have been aware of his continued detention, given that he was asleep, although he still ought to havebeen released earlier by officer Marshall. (ii) The impact of the Breach on the Charter-protected interestsof the Accused [37] The continued detention had no impact on the defendant’s Charter-protected rights since the evidence had already beencollected and the breach did not affect his ability to make full answer and defence. (iii) Society’s Interest in the Ajudication of the Case on itsmerits [38] In Grant [supra], the court dealt with this concern in paras 110 and 111: 110 The third line of inquiry -- the effect of admitting the evidence on the public interest in having a case adjudicated on its merits --will usually favour admission in cases involving bodily samples.

Unlike compelled statements, evidence obtained from the accused'sbody is generally reliable, and the risk of error inherent in depriving the trier of fact of the evidence may well tip the balance in favour ofadmission. 111 While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity isdeliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded,notwithstanding its relevance and reliability.

On the other hand, where the violation is less egregious and the intrusion is less severe interms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted. For example, thiswill often be the case with breath sample evidence, whose method of collection is relatively non-intrusive.

[ 39 ] Because of this direction from the Supreme Court, and because we are dealing with breath samples and impaired driving, I find that society ordinarily would have an interest in the adjudication of the defendant’s case on its merits. I find that society’s interest in the adjudication of this case on its merits should be the paramount consideration. [ 40 ] Balancing all of the above-mentioned factors, it is my opinion that to admit the breath readings of the defendant into evidence would not bring the administration of justice into disrepute.

The Impaired Driving Charge [ 41 ] Although the defendant was driving in a peculiar manner, it may not have been due to the consumption of alcohol. His breath smelled of alcohol and his eyes were glassy, but he seemed to be alert, and exhibited no physical coordination difficulties. Therefore, I am unable to conclude beyond a reasonable doubt that his ability to operate a motor vehicle was impaired by the consumption of alcohol. Conclusion on Charter Issues [ 42 ] There has been no breach of sections 8 and 9 of the Charter of Rights and Freedoms and the breath readings of the defendant are admissible.

Conclusion on the Trial Proper [ 43 ] The defendant is found guilty of operating a motor vehicle after having consumed alcohol in excess of the legal limit, but not guilty of impaired driving. Released: December 11, 2017 Signed: “Justice Alan D. Cooper”