R. v. Bertsch, 2013 ONSC 1533

CITATION: R. v. Bertsch, 2013 ONSC 1533 COURT FILE NO.: 100/12 DATE: 20130314 ONTARIO SUPERIOR COURT OF JUSTICE RE: Her Majesty The Queen v. Ian Bertsch BEFORE : Mr. Justice Kenneth L. Campbell COUNSEL : David A. Mitchell , for the Crown, appellant David E. Harris , for the accused, respondent HEARD : February 21, 2013 ENDORSEMENT [Summary Conviction Appeal] A. Overview [ 1 ] The respondent, Ian Bertsch, was acquitted at trial on an “over 80” charge.

The trial judge expressed a reasonable doubt in relation to issues that were not relevant to any of the elements of the alleged offence, but which were relevant only to a potential Charter of Rights application that the respondent did not pursue at trial. The Crown appeals against this acquittal and seeks a new trial. The respondent concedes the alleged legal error by the trial judge, but contends that the appeal should be dismissed as the result would necessarily have been the same if the trial judge had properly considered the case.

Accordingly, the main issue on this appeal is whether the Crown has established that the acquittal may well have been affected by the acknowledged analytical error by the trial judge. B. The Proceedings at Trial [ 2 ] The respondent was tried by the Honourable Mr. Justice B. Cavion of the Ontario Court of Justice on a single charge of operating a motor vehicle, on August 6, 2011, in Toronto, after having consumed alcohol in such a quantity that his blood-alcohol concentration was in excess of 80 mgs. of alcohol in 100 mls. of blood. [ 3 ] The trial was short and took place on June 2, 2012.

The trial consisted of two Crown witnesses. The accused did not testify or call any additional evidence. The Crown’s case consisted of: (1) the investigating police officer who stopped the respondent at 6:50 p.m. on August 6, 2011, as part of an organized “Reduce Impaired Driving Everywhere” (R.I.D.E.) program just outside the Canadian National Exhibition (C.N.E.) grounds where there was a beer festival; and (2) the qualified breath technician who subsequently took samples of the respondent’s breath for analysis by means of an Intoxilyzer 8000C.

There was no application by the respondent under the Charter of Rights , and the evidence of the results of the analysis of the respondent’s breath samples were admitted into evidence without any objection by trial counsel for the respondent. Those results established that the respondent had blood-alcohol levels of 113 and 107 mgs. of alcohol in 100 mls. of blood at 7:51 p.m. and 8:14 p.m. respectively on August 6, 2011. [ 4 ] In his closing argument, defence counsel for the respondent did not seek the exclusion of any evidence or advance any argument under the Charter of Rights .

Rather, defence counsel argued that the Crown had not proven the case against the respondent beyond a reasonable doubt. In advancing this argument, counsel for the respondent relied, essentially, upon two pieces of evidence, namely: (1) that the investigating police officer had wrongly describing the serial number of the screening device that he had used to test the respondent’s breath at the roadside; and (2) that the investigating officer failed to question the respondent at the roadside as to

precisely when he had consumed his last drink. The Crown argued that there was no Charter application before the trial judge by meansof which he could exclude the Intoxilizer results of the respondent’s breath samples, and the commission of the alleged offence by therespondent was clearly established by the testimony of the qualified breath technician and the uncontested admission of his Certificate. [5] The trial judge reserved judgment. Subsequently, in brief Reasons for Judgment released on July 6, 2012, Cavion J.acquitted the respondent.

The trial judge recalled the arguments made by defence counsel regarding the significance of the misidentifiedapproved screening device, and the failure of the investigating officer to inquire of the respondent at the road-side when he had his lastdrink. The trial judge then stated: None of these issues is, on its own, necessarily fatal to the prosecution’s case. But occasionally, when taken all together, and looking atthe entire context, a reasonable doubt creeps in and it becomes unfair to ascribe culpability. As a result the charges are dismissed. C.

The Positions of the Parties on Appeal [6] The Attorney General of Ontario appeals against this acquittal. The Crown contends that the brief Reasons for Judgment bythe trial judge are legally insufficient. More significantly however, the Crown contends that the Reasons do not provide a sound legalbasis for the acquittal of the respondent, as the issues mentioned by the trial judge are simply not relevant to the Crown’s obligations toprove the elements of the offence beyond a reasonable doubt.

Rather, they could only have been relevant in the context of a Charterapplication, if one had been brought, to challenge whether the investigating officer had the necessary reasonable and probable grounds toarrest the respondent and make the demand for samples of his breath. The Crown contends, in the further alternative that, if the decisionof the trial judge was, in effect, to exclude the results of the respondent’s breath samples as a result of some unarticulated but perceivedviolation of the Charter of Rights, the trial judge was in error in reaching such a conclusion. [7] In response, Mr.

Harris, who was not trial counsel for the respondent, fairly concedes that the trial judge erred in acquittingthe respondent on the basis of the two issues mentioned in the Reasons for Judgment. He argues, however, that the Crown appeal shoulddismissed nevertheless because the result of the case would necessarily have been the same if the trial judge had properly analyzed theissues before him according to the law. [8] More specifically, Mr.

Harris argues that, if the trial judge had viewed the submissions of defence counsel at trial as, ineffect, a Charter application, he would inevitably have concluded: (1) that the investigating police officer failed to properly consider thepossibility of “residual mouth alcohol” and wait before administering the road-side screening breath test; (2) that without the “fail” fromthe approved screening device, the investigating officer did not have reasonable and probable grounds to demand breath samples fromthe respondent; (3) that the breath samples obtained from the respondent by the qualified breath technician were secured in violation ofs. 8 of the Charter; and (4) that the Intoxilyzer results of the respondent’s breath samples should be excluded from evidence under s.24(2) of the Charter.

D. Analysis 1. The Decision of the Trial Judge [9] I agree with the parties that the trial judge erred in law in acquitting the accused on the basis of his reasonable doubtregarding the erroneously described serial number of the screening device and the absence of evidence at the roadside as to when therespondent had his last drink. [10] Neither of these two issues touched upon the essential elements of the offence of operating a motor vehicle with over 80 mgs.of alcohol in his blood.

Said another way, in order to establish the guilt of the respondent for the alleged “over 80” offence, the Crownwas not legally obliged to prove beyond a reasonable doubt: (1) that the officer used an approved screening device at the road-side; or(2) the time the respondent had his last drink. Accordingly, whether the trial judge possessed a cumulative reasonable doubt in relationto those issues was simply not legally relevant to whether the Crown had established the alleged guilt of the accused for the offence ofwhich he was charged.

Accordingly, it was wrong for the trial judge to acquit the respondent based upon a reasonable doubt in relationto legally irrelevant considerations. [11] The two issues mentioned by the trial judge would have been legally relevant to the potential outcome of the case if theaccused had brought an application at trial contending that his right to be secure against unreasonable search and seizure had beenviolated, contrary to s. 8 of the Charter, and had sought to exclude from evidence the results of the analysis of his breath samples unders. 24(2) of the Charter.

However, the respondent brought no such application at trial. Indeed, as I have indicated, the evidence that therespondent had an illegal blood-alcohol level on the evening in question was admitted into evidence without objection. [12] Moreover, even if the respondent had sought the exclusion of his breath samples at trial under s. 24(2) of the Charter on thebasis of an alleged violation of s. 8 of the Charter, it would not have been sufficient for the respondent to simply raise a reasonable doubtin relation to those issues.

On such Charter applications the burden of proof is on the accused on the balance of probabilities. Moreparticularly, on such Charter applications the legal obligation is cast upon the accused to prove, on the balance of probabilities, not onlythat his constitutional rights under the Charter of Rights have been violated, but also that the evidence obtained by the police in the resultought to be excluded. See, for example: R. v. Bartle, (SCC), [1994] 3 S.C.R. 173, at pp. 211-213.

Accordingly, even ifthe trial judge had decided to take it upon himself to view the arguments of counsel for the respondent as, in effect, a late-breakingapplication under the Charter, the trial judge would still have been obliged to apply the legally correct burden of proof in relation tothose Charter issues. He did not. In his Reasons the trial judge did not find a violation of any of the respondent’s Charter rights, nor didhe exclude the evidence of the results of the Intoxilyzer analysis of the respondent’s breath samples. Further, the trial judge made nomention of any burden upon the respondent.

The trial judge simply mentioned the two issues and concluded that, together, they causedhim to have a reasonable doubt as to the guilt of the respondent, and dismissed the charges against him. [13] With respect, the trial judge erred in law in this analysis of this case. 2. The Impact on the Verdict

[14] In order to secure a new trial in the present case, however, it is not enough for the Crown to simply demonstrate that the trialjudge made some legal error in acquitting the respondent. The Crown must also demonstrate that, in the concrete reality of the case, thelegal error by the trial judge had some material impact upon the verdict. More specifically, the Crown must demonstrate that the verdictwould not necessarily have been the same but for the legal error by the trial judge.

This is a heavy burden as the appellate court must besatisfied, to a reasonable degree of certainty, that the outcome may well have been affected by the error by the trial judge. The Crown isnot required to show that the verdict would necessarily have been different, but must show that it would not necessarily have been thesame but for the error of the trial judge. See: R. v. Vézeau, (SCC), [1977] 2 S.C.R. 277, at p. 292; R. v. Sutton, 2000 SCC50 , [2000] 2 S.C.R. 595, at para. 2; R. v. Graveline, 2006 SCC 16 , [2006] 1 S.C.R. 609, at para. 14; R. v. Briscoe,2010 SCC 13 , [2010] 1 S.C.R. 411, at para. 26; R. v.

Barros, 2011 SCC 51 , [2011] 3 S.C.R. 368, at para. 79, 103,106. [15] As I have indicated, Mr. Harris argued, on behalf of the respondent, that a new trial should not be ordered in this case as theverdict would necessarily have been the same if the trial judge had not erred. I disagree.

Indeed, I have no hesitation concluding that theCrown has met its heavy burden in justifying appellate interference with the verdict reached by the trial judge in the circumstances of thiscase. [16] Had the trial judge not misunderstood the necessary legal components of the offence of “over 80” with which the respondentwas charged, he might well have reached a different result in this case.

Indeed, had the trial judge directed his mind to whether theCrown had proven the essential elements of the offence of “over 80,” instead of becoming side-tracked by irrelevant considerations, hemight well have concluded that the Crown had established the guilt of the respondent beyond a reasonable doubt. After all, the Crownhad established the respondent’s illegal blood-alcohol concentration and the respondent had offered no legally viable defence to thecharge.

In short, the trial judge could easily have concluded that the respondent was guilty of this alleged offence. [17] Even if the trial judge had unilaterally viewed the arguments advanced on behalf of the respondent as a belated Charterapplication, the trial judge might well not have been satisfied that the respondent had demonstrated, on the balance of probabilities, aviolation of his Charter rights justifying an ex post facto exclusion of the evidence of his illegal blood-alcohol concentration under s.24(2) of the Charter.

After all, the trial judge expressed only a “reasonable doubt” on those issues, and did not engage in any of therequired legal analysis.

The existence of such a doubt certainly did not entitle the respondent to the exclusion of the key evidence againsthim. [18] There is no question that if the trial judge had viewed the closing arguments of defence counsel as a Charter application, andif the trial judge had concluded that there had been a violation of s. 8 of the Charter, and if the trial judge had decided to exclude theevidence of the qualified breath technician as to the Intoxilyzer results of the respondent’s breath samples, then the result in this casewould be the same.

If all of those things had happened, the charge against the respondent would have been dismissed. However, Icannot conclude, based upon the record in this case, that all of those things would necessarily have taken place if the trial judge had noterred in law in his analysis of this case. [19] In any event, however, in my view it is not for an appellate court to undertake that type of detailed factual analysis in relationto a Charter issue that was never raised at trial.

Had the respondent advanced a Charter claim at the trial of this matter, the Crownmight well have asked other questions, adduced other evidence, and advanced other arguments. Had this potential Charter claim beenraised at trial the evidentiary record in this case might be quite different. Accordingly, it would be unwise for me to now try to assesshow such a Charter claim might have been raised and litigated by the parties, and what factual findings would have been appropriatelymade by the trial judge in light of the applicable burden of proof on the accused in relation to such Charter issues.

There are simply toomany potential variables to conclude that the result would necessarily have been the same but for the erroneous legal analysis of the trialjudge. E. Conclusion [20] In the result, I am satisfied that the Crown has demonstrated: (1) that the trial judge seriously erred in law in his analysis ofthis case; and (2) that the acquittal of the respondent would not necessarily have been the result of this case if the trial judge had not soerred. Accordingly, the Crown appeal is allowed, the acquittal of the respondent is set aside, and a new trial is ordered. ___________________________ Kenneth L.

Campbell J. Released: March 14, 2013