) HER MAJESTY THE QUEEN Respondent – v. –, 2017 ONSC 2228

CITATION : R. v. Broxterman, 2017 ONSC 2228 COURT FILE NO.: 55/16 DATE: 20170410 SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL TORONTO REGION BETWEEN: ) HER MAJESTY THE QUEEN Respondent – and – MARK ANTHONY BROXTERMAN Appellant ) ) ) ) ) ) ) ) ) ) ) Melissa Mandel , for the Crown Alexandra Rowell , for the Appellant HEARD: March 15, 2017 K.P. WRIGHT J. Introduction 1 . On May 18, 2016 the appellant, Mark Broxterman, was convicted after trial in the Ontario Court of Justice of operating a motor vehicle with more than 80 milligrams of alcohol in 100 milliliters of his blood. 2 . The appellant appeals that conviction and submits that the trial judge erred in three ways:

(1) The trial judge erred in his finding that the officer had reasonable and probable grounds to arrest the appellant;

(2) The trial judge misapprehended the evidence;

(3) The verdict is unsafe. Overview of Facts 3 . I will now give a very brief overview of the facts. I will further develop the facts when necessary in my analysis. 4 . On August 8, 2014, P.C. Kim was operating a RIDE spot check. At approximately 2:46 a.m., the officer attempted to stop the appellant’s vehicle but it drifted forward past the officer to a red light approximately 100 meters away. The officer ran to his scout car and proceeded to the red light. 5 . In discussions with Mr. Broxterman, P.C.

Kim formed the suspicion that the appellant had alcohol in his body as a result of smelling alcohol on his breath. The appellant admitted to having consumed 4 beers and the officer noted he had a “little bit of a glazed look about him.” 6 . At 2:46 a.m. the officer demanded that the appellant provide a sample of his breath into an approved screening device. 7 . At 2:48 a.m. the device was delivered to P.C. Kim’s location. 8 . P.C. Kim performed a self-test and the device registered a zero which led him to believe the device was working properly. 9 .

At 2:49 a.m. the appellant provided a sample of his breath and registered a fail. This was followed by the appellant being arrested, given his rights to counsel and a demand that he provide a sample of his breath into an approved instrument. The appellant was transported by P.C. Kim back to the RIDE location where he provided suitable samples of his breath into an approved instrument

resulting in readings of 175 mg of alcohol in 100 ml of blood and 169 mg of alcohol in 100 ml of blood. The appellant was charged withone count of “over 80” and released from the scene. 10. The trial of this matter started on October 9, 2015. The appellant brought an application seeking exclusion of the intoxilyzerreadings on the basis that his

section 8 Charter rights had been violated. At issue was whether the officer had reasonable and probablegrounds to arrest and to make a breath demand. The evidence at trial concluded on April 13, 2016. On May 16, 2016, the trial judgeprovided written reasons dismissing the Charter application and convicting the appellant. The appellant made 14 appearances in total. Analysis 1. The Trial Judge Erred in Finding That PC Kim Had Reasonable and Probable Grounds to Arrest the Appellant. 11.

Where appellate courts are called on to review the trial judge’s conclusions as to whether the officer objectively hadreasonable and probable grounds, the appellate court must show deference to the trials judge’s findings of fact, although the trial judge’sruling is a question of law reviewable on the standard of correctness. R. v. Wang, 2010 ONCA 435, 2010 CarswellOnt 3857 at para. 18R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 at para. 48 12. Reasonable and probable grounds have both a subjective and an objective component. 13.

The subjective component requires the officer to have an honest belief that the suspect committed the offence, which must besupported by objective facts. R. v. Bershaw, (SCC), [1995] 1 S.C.R. 254 at para. 62R. v. Berlinski, (ON CA), [2001] O.J. No. 377 (C.A.) at para. 3R. v. Bush, at para. 38 14. The objective component is satisfied when a reasonable person placed in the position of the officer will be able to concludethat there were indeed reasonable and probable grounds for the arrest. R. v. Storrey, (SCC), [1990] 1 S.C.R. 241 at p. 250R. v. Bush, at para. 38 15.

In the context of an impaired driving case, the test for whether an officer’s belief was reasonable in the circumstances is “notan overly onerous one.” A prima facie case is not required. Rather, the test is whether, objectively, there were reasonable and probablegrounds to believe the motorist was driving while his or her ability to do so was impaired, even to a slight degree, by alcohol. R. v. Storrey, at para. 23R. v. Censoni, [2001] O.J. No. 5189 (S.C.) at paras. 31 – 33, para. 59R. v. Wang, at para. 17 16.

Further, officers involved in drinking and driving investigations are involved in making quick but informed decisions as totheir grounds. An officer may rely and draw inferences from his training and past experience when forming his reasonable and probablegrounds. There is no minimum time period or mandatory questioning that must occur before an officer can objectively have reasonableand probable grounds. R. v. Bush, at para. 45R. v. Censoni, at paras. 36 and 44 17.

The appellant argues that the trial judge’s findings that “there were numerous steps that PC Kim should have undertaken inorder to have been fully in compliance with the ASD” and that the investigation was “essentially unreviewable”, is inconsistent with afinding that the officer had objective grounds to arrest the appellant. 18. I disagree. And here is why. 19. The trial judge’s reasons must be reviewed in their entirety in order to gain a full appreciation and understanding of them. Dissecting or looking at comments in isolation often leads to a distorted conclusion inconsistent with the overall findings. 20.

The finding by the trial judge that there were numerous steps that P.C. Kim should have undertaken in order to be incompliance with the ASD Procedures Manual, was immediately followed by a finding from the trial judge that this lack of compliancehad no bearing on whether the officer could rely on a fail result in determining his reasonable grounds or whether the machine was inproper working order.

At paragraph 18 the trial judge wrote: It seems to me notwithstanding the stated requirements of the Procedures manual, the expert evidence on the subject is that none of these“performance failures” have any bearing on whether the administering officer could reasonably rely on a “fail” result for reasonablegrounds. He stated that “if the officer observed a failed display, he operated it properly and received a proper field result.” 21. The trial judge correctly took into account all of the evidence that was before him and reconciled those pieces that wereinconsistent with each other.

Ultimately, he relied on the evidence of the Crown expert witnesses in deciding how much weight to placeon the evidence that the officer had not complied with the ASD Procedures Manual. It was entirely within his discretion to do so and Ifind no error or inconsistency flowing from it. 22. The appellant argues that the trial judge’s finding that the investigation is ‘unreviewable’ is inconsistent with a finding that

the officer objectively had reasonable grounds to arrest. 23 . Again, I disagree. 24 . Context is important, in paragraph 15 the trial judge wrote: In other words PC Kim could be said to have suffered a number of deficiencies in performance in terms of his stated practice of 1) checking for mouth alcohol, 2) checking that the device was properly calibrated and 3) ensuring that he followed the manual as to signals given by the device when a proper breath sample was received. The reality was that this investigation was essentially unreviewable because he had no memo book notes on these crucial steps.

The question to determine was whether he could have reasonably and objectively relied on the ASD “fail” as accurate. 25 . It is clear to me from this paragraph, in combination with paragraphs 16 and 17, that the trial judge is focused only on the absence of the officer’s notes and the impact that it will have on his ability to assess the officer’s evidence. He is not stating that he is unable to review the entire investigation. His concern is limited to the notes of the officer. Indeed, his comment regarding the notes is part of the Judge’s comprehensive review of the evidence. 26 .

The comment should not be taken to mean that the trial judge found himself in position where he was unable to review the entirety of the case. In fact, quite the opposite is true. After that comment, the trial judge went on to conduct a thorough analysis of PC Kim’s evidence and the remainder of the Crown’s case which included expert evidence. The reference to the investigation being ‘unreviewable’ is a red herring and, in my view, was not inconsistent with the trial judge’s findings that the officer had objective grounds to arrest the appellant. 2. The Trial Judge Misapprehended the Evidence 27 .

The appellant argues that the trial judge erred by concluding that the device registered a fail result when the evidence demonstrated that there was a high degree of unreliability with respect to the result. 28 . P.C. Kim testified unequivocally that the ASD registered fail. He also testified that the device indicated a fail reading with three red flashes and three beeps or tones. Later in his evidence, he said he may have been mistaken about the three red flashes but he was certain about the three tones being emitted and observing the word “fail”. 29 .

Two experts testified, one for defence and one for the Crown. Both agreed that it was impossible for the device to flash three times and show the word “fail”. The defence expert was of the opinion that the officer was not operating the device properly and that the result could not be relied upon. The Crown expert testified that the officer was operating the device properly and the device was working properly. He said that the device will not work if it is not calibrated, and that it will not display a “fail” and flash red at the same time.

Moreover, he said that the device is not capable of producing three red flashes. 30 . The trial judge accepted the evidence of the Crown expert and in doing so resolved the issue of calibration and found that the device was working properly and was operated properly. 31 . The trial judge also accepted the evidence of P.C. Kim that he observed the word ‘fail’ displayed and that he was simply mistaken when he said the machine flashed red three times. 32 . In determining whether or not a judgment is reasonable, “the appeal judge must re-examine, and to some extent re-weigh and consider the effect of the evidence”.

R. v. W.(G.) , 1996 CarswellOnt 3194 (C.

A) at para. 18 . 33 . However, in doing so, the reviewing judge must show great deference to the trial judge. “The appeal judge must not try the case de novo or simply substitute her views for those of the trial judge”. R. v. W.(G)., at para. 18 R. v. Smits , 2012 CarswellOnt 9437, 2012 ONCA 524 34 . I am mindful that it is the trial judge who observed the witnesses testifying. He had the significant advantage of the witnesses testifying, including P.C. Kim, when he was confronted with the omissions of his notes. As the trial judge, he was entitled to believe all, part or none of the witness’s evidence. 35 .

I find no error in the logic or conclusion of the trial judge. In my view, the findings made were entirely within the purview of the trial judge and amply supported by the evidence. There is no basis to interfere with his factual findings. 36 . The appellant, in his materials, raised the issue of mouth alcohol. The issue, as I understand it, was abandoned during oral submissions making any further consideration unnecessary. 3. Two Sets of Reasons 37 . Prior to handing out his written judgment the trial judge stated: This is basically the

Section 8 Judgment. I have copies for everyone so I am going to pass them down. Before I do that I want to say I thought about this very carefully for a couple of weeks. These are increasingly difficult issues and I know that every possible aspect of the case was very thoroughly canvassed and I can tell you, Mr. Broxterman, that what I tried to do was I actually wrote two Judgments – one, I guess, supporting the Application and agreeing with it and staying the…or actually excluding the evidence and another Judgment favouring the Crown.

I spent a lot of time thinking about this and, in the end, I concluded that in terms of the law and the facts of the logic and the weight of the law and evidences that…I have concluded, unfortunately for you, that the Application should be dismissed and I have to tell you that I can only call these cases the way I see them. 38 . The appellant argues that these comments, combined with the trial judge’s critical review of the evidence, creates a doubt as to whether or not the appellant should have been found guilty and therefore the verdict is unsafe. 39 . I disagree. And here is why. 40 .

The way in which a judge approaches decision making is highly subjective. There is no approved formula for judicial decision making, and, as far as I know, it has never been the subject of a judicial review. 41 . In this case, I find that the trial judge was simply attempting to communicate to the appellant how difficult the decision was for him. In doing so, he chose to share the process he undertook in making his decision. 42 . The appellant argues that he was entitled to reasons for why he was not acquitted and the lack of reasons under the circumstances results in an unsafe verdict. 43 .

The question of why the appellant was convicted and why the appellant was not acquitted are two ends of the same stick. The trial judge’s written reasons for conviction also answer why he did not acquit the appellant. 44 . I find no error. Conclusion 45 . After a thorough review of the evidence, materials filed, submissions of counsel, and for the reasons stated, the appeal is dismissed. K.P. Wright J. Released: April 10, 2017 CITATION : R. v.

Broxterman, 2017 ONSC 2228 COURT FILE NO.: 55/16 DATE: 20170410 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN Respondent – and – MARK ANTHONY BROXTERMAN Appellant REASONS FOR DECISION K.P. WRIGHT, J. Released: April 10, 2017