



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jennings, 2018 ONCA 260

DATE: 20180319

DOCKET: C63177

Watt, Hourigan and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Steven Jennings

Respondent

David Friesen, for the appellant

Noah Schachter, for the respondent

Heard: November 23, 2017

On appeal from the decision of the Summary Convictions Appeal Court dated December 12, 2016 by Justice J. Christopher Corkery of the Superior Court of Justice, dismissing the appeal from the acquittal entered on June 16, 2015 by Justice Robert W. Beninger of the Ontario Court of Justice.

B.W. Miller J.A.:

OVERVIEW AND BACKGROUND

[1]

An OPP constable observed a vehicle driven by the respondent straying
    significantly out of its lane. After following it for a time, he pulled the
    vehicle over. Detecting alcohol on the respondents breath, he asked the
    respondent if he had been consuming alcohol, and received a positive reply. The
    constable concluded that he had a reasonable suspicion that the respondent had
    alcohol in his body, and issued a demand that the respondent provide a breath
    sample into an approved screening device (ASD). The respondent registered a
    fail on the ASD and was arrested and taken to an O.P.P. detachment where he
    provided two breath samples into a breathalyzer administered by a qualified
    breath technician. Both samples tested significantly in excess of 80 mg of
    alcohol in 100 ml of blood.

[2]

The only issues at trial were whether the breath sample demand
    constituted an unreasonable search or seizure under s.8 of the
Charter of
    Rights and Freedoms
, and if so, whether the breath samples should be
    excluded as evidence under s. 24(2). The trial judge concluded that the
    constable did not have reasonable and probable grounds to believe the
    respondent had committed the offence of driving over 80 from the results of
    the roadside test with the ASD, and that the taking of the subsequent breath
    sample at the police station accordingly violated s.8. Although the parties
    agreed that the constable honestly believed the respondent had committed the
    offence, satisfying the subjective component of the test, the trial judge
    accepted the defence argument that the constables belief was not objectively
    reasonable because he had not followed three procedures set out in the O.P.P.
    manual for using the specific ASD, the Drager Alcotest 6810. The failure to
    follow these procedures, the trial judge concluded, meant that the constable
    could not have reasonably believed that the ASD was in proper working order,
    and therefore could not have used the results of the roadside test as a reason
    to believe the respondent had a blood alcohol level over .80.

[3]

The trial judge excluded the breath samples under s. 24(2). Following
    the three part structured analysis set out in
R. v. Grant
, 2009 SCC
    32, [2009] 2 S.C.R. 353, the trial judge concluded that (i) the breach of the
    respondents
Charter
rights was serious, as was (ii) the impact of the
    breach on the respondent. Although the trial judge found (iii) the societal
    interests in the adjudication on the merits to be strong, he concluded that the
    impact of the breach on the respondent weighed heavily in favour of the
    exclusion of the evidence, and he excluded the breath samples.

[4]

In considering the second
Grant
factor, assessing the impact of
    the breach, the trial judge followed a line of cases from
R. v. Au-Yeung
,
    2010 ONSC 2292, 75 C.R. (6th) 78, holding that the seriousness of the impact of
    a s. 8 breach in a breath sample case should not focus only on the
immediate
impact of providing a breath sample, but on the
overall
impact on the
    accused of the breach, including such matters as detention in the back of a
    police cruiser, transportation to the police station for breath-testing, and
    subsequent detention at the police station. He rejected a contrary line of
    authority that restricts the analysis to the breath sample procedure, which in
    itself is minimally intrusive.

[5]

On appeal by the Crown, the summary conviction appeal court held that
    the trial judge did not err in finding that the constables subjective belief
    that the fail result was reasonable was not supported by the objective facts.
    The summary conviction appeal judge (SCAJ) also upheld the trial judges
    decision to exclude the evidence under s. 24(2). The appeal was dismissed.

[6]

Leave to appeal to this court was granted.

[7]

For the reasons set out below, I would allow the appeal, enter a conviction,
    and remit the matter to the trial judge for sentencing.

Analysis

[8]

There are two issues on this appeal: did the SCAJ err in upholding the
    trial judges finding: (1) of a s. 8 violation in the taking of the
    respondents breath sample at the police station; and (2) that the breath
    samples obtained at the police station should be excluded as evidence under s.
    24(2).

(1)

The s. 8 breach

[9]

The investigation of over 80 offences follows a two-stage process.
    Initially, an officer with a reasonable suspicion that a driver has alcohol in
    his or her body is authorized by s. 254(2) of the
Criminal Code
to
    demand the driver provide a breath sample into an ASD. This is a preliminary
    screen only, and registering a fail on the ASD cannot be used as evidence that
    the driver was impaired or that his or her blood/alcohol level was over the
    legal limit. But an ASD failure  either alone or in combination with an
    officers other observations  may provide the officer with reasonable and
    probable grounds to conclude that an impaired driving offence has been
    committed. If the officer forms reasonable and probable grounds for an arrest,
    the officer is authorized to arrest the driver and demand breath samples on an
    approved instrument pursuant to s. 254(3):
R. v. Einarson
(2004), 70 O.R.
    (3d) 286 (C.A.), at paras. 10-11.

[10]

The
    determination of whether there are reasonable and probable grounds to demand a
    breath sample under s. 254(3) of the
Criminal Code
has a subjective
    and an objective component: (i) the officer must have an honest belief that the
    suspect committed an offence, and (ii) there must be reasonable grounds for
    that belief:
R. v. Wang
: 2010 ONCA 435, 263 O.A.C. 194, at para. 14.

[11]

Here,
    there is no dispute that the constable had the requisite subjective belief that
    the respondent had been driving with a blood/alcohol level over .80. No issue
    is taken with the officers ASD demand under s. 254(2). However, the trial
    judge found there was no evidence of objective grounds to support the
    constables subjective belief.

[12]

The
    determination of whether the constables belief was objectively reasonable
    largely turns on whether it was reasonable for him to believe that the ASD was
    functioning properly. In
Bernshaw
, [1995] 1 S.C.R. 254, at para. 80, Sopinka
    J. observed that an officer is entitled to rely on [the accuracy of an ASD]
    unless there is credible evidence to the contrary. However, if an officer
    cannot rely on the accuracy of the ASD test results, those results cannot
    assist the officer in determining whether there were reasonable and probable
    grounds to arrest a driver and demand a subsequent breath test:
Einarson,
at
    para. 14.

[13]

The
    trial judge found the constables belief that the ASD was functioning properly
    was not reasonable, because of his failure to follow three of the steps set out
    in the O.P.P. policy manual. The trial judge found that contrary to the
    procedures set out in the ASD manual, the constable did not:

1. perform a self-test of the ASD at the beginning of his
    shift;

2. record the particulars of the ASD calibration check in his
    notebook; or

3. perform a second self-test after the respondent provided his
    breath sample.

[14]

In
    support of the reasonableness of his belief that the ASD was properly
    functioning, the constable testified at trial that if the ASD was not properly
    calibrated, it would shut down and could not be operated. The trial judge,
    however, rejected this evidence, finding that there was no evidence that the
    constable was aware of this feature at the time of the search. He found that
    there were no objective grounds to support either the constables belief that
    the ASD was properly functioning, or the constables belief that the respondent
    had been driving with a blood\alcohol level over .80. The trial judge reached
    this conclusion because of his view that the constables failure to follow the three
    procedures in the O.P.P. manual provided credible evidence to the contrary,
    such that the ASD results could not be relied upon to form reasonable and
    probable grounds for the search:
R. v. Gundy,
2008 ONCA 284, 235
    O.A.C. 236, at para. 50.

[15]

The
    SCAJ held that the trial judge made no error in so concluding.

[16]

I
    disagree, for the reasons set out below, and would hold that the trial judge
    erred in finding that there were no objective grounds to support the
    constables subjective belief in both the proper functioning of the ASD, and in
    the presence of reasonable and probable grounds to believe the respondent had
    been driving over .80.

[17]

Failure
    to follow policy or practice manual directions does not automatically render
    reliance on test results unreasonable. What matters is whether the officer had
    a reasonable belief that the device was calibrated properly and in good working
    order, and whether the test was properly administered:
Bernshaw,
at
    paras. 59-60, 83
; R. v. Topaltsis (2006),
34 M.V.R. (5th) 27 (Ont.
    C.A.) at paras. 7,9. A failure to follow a practice manual direction can serve
    as
some
evidence undermining the reasonableness of an officers
    belief. But the fact that an officer failed to follow a practice manual
    direction is not itself dispositive. Not every failure to follow a direction is
    necessarily fatal to reasonableness of belief. Not all practice manual
    directions will bear equally, or perhaps at all, on the reasonableness of an
    officers belief that the ASD is properly functioning. It is necessary to take
    the further step and determine how or whether each of the specific failures identified
    undermine the reasonableness of the officers belief that the ASD was
    functioning properly.

[18]

The
    first omission by the constable was his failure to perform a self-test of the
    ASD at the beginning of his shift. Assuming the officer has no alcohol in his
    or her body, the self-test should result in a zero reading. Here, the constable
    performed the self-test, but it was at roadside and immediately before
    administering the test to the respondent. He obtained a zero reading. There was
    no evidence that, for the purposes of ensuring proper functioning of the ASD at
    the time the test is administered, there is any advantage to performing the
    self-test at the beginning of the shift rather than at roadside. The beginning
    of the shift requirement appears simply to be a matter of operational
    efficiency  of avoiding the inconvenience of finding oneself in the field with
    malfunctioning equipment. The failure to follow the directive in this
    particular respect could not have had any bearing on the officers belief that
    the ASD was functioning when the test was administered.

[19]

The
    second failure was in not recording the calibration particulars of the ASD. The
    calibration and accuracy of the device must be verified before use. The
    constable testified that he did check these at the time of the stop, but that
    he did not record the details in his notebook as required. Again, recording
    calibration results is an administrative matter. There may be good reason for
    it, presumably of an evidentiary nature, but a failure to record does not
    automatically negate a constables testimony that he performed the necessary
    checks.

[20]

Furthermore,
    the constable testified that the ASD had a fail-safe feature that would not
    allow it to be operated at all if it was not properly calibrated:


I know at the time
that I did check the calibration
    and the accuracy and that, uh, the device will not operate if  if its not
    calibrated and the accuracy isnt checked, um, so,
at the time
, if 
    if the calibration and the accuracy isnt proper, then the device actually
    wont  wont work. [Emphasis added.]

The constables testimony, though not in every respect
    a model of grammatical precision, is some evidence that he knew about the
    fail-safe feature at the time he administered the roadside test. Precisely how
    or when he learned this is not important.

[21]

The
    third failure was in not performing a second self-test immediately after the
    respondent provided a breath sample. Again, this is a matter of best practices,
    to confirm that the ASD remains in working order, and would provide
some
evidence that the ASD was properly functioning at the time of the test. But
    absent something happening to the ASD in the brief period after the first
    self-test, the constable would have no reason to believe that the ASD was no
    longer in proper working order. The failure to perform the second self-test
    does not negate the objective reasonableness of the constables subjective
    belief that it was in working order when the test was administered.

[22]

Accordingly,
    the SCAJ and the trial judge erred in concluding that the constables
    subjective belief that the respondent had committed the offence of driving over
    .80 was not objectively reasonable. The uncontested evidence was: (i) the
    constable observed the respondents vehicle swaying into the wrong lane; (ii)
    the constable detected alcohol on the respondents breath; (iii) the respondent
    admitted to having consumed alcohol; (iv) the constable followed the procedures
    for use of the ASD, with the exception of those noted above; (v) the results of
    the self-test and the calibration check indicated the device was working; and
    (vi) the breath sample provided by the respondent registered over .80.

[23]

I
    would hold that the SCAJ erred in law in upholding the trial judges ruling
    that there was a breach of the respondents s. 8 rights.

(2)

Exclusion under section 24(2)

[24]

The
    conclusion on the s. 8 issue is sufficient to dispose of the appeal. However, a
    divergence in the lower courts on how to approach s. 24(2) analysis in breath
    sample cases makes it necessary for this court to address the reasons of the
    trial judge and the SCAJ on this issue.

[25]

The
    trial judge excluded the breath samples from evidence, a decision that was
    upheld by the SCAJ. The SCAJs reasons on this issue were brief, simply stating
    that the trial judge correctly considered the factors articulated by the
    Supreme Court of Canada in
R. v. Grant
. The trial judges application
    of the
Grant
test, however, was problematic in two respects.

[26]

On
    the first branch of the
Grant
test, although the trial judge concluded
    that the s. 8 breach was serious and favoured exclusion of the evidence, he did
    not explain how he arrived at this conclusion. He appears to have taken it as
    axiomatic that a warrantless roadside search which formed the basis of the
    reasonable and probable grounds of the arresting officer was
per se
a
    serious breach. But
Grant
requires more: there must be some
    examination of the police conduct and a determination of where it fits on a
    spectrum from mere technical breaches at one end to bad faith violations at the
    other. As the Crown argues, the circumstances of this case are notably
    different from those in
Au-Yeung
, where the officer administering the
    roadside test did not perform a self-test at all, did not check when the device
    was last calibrated, did not know how to read the device, had last received
    training on the use of ASDs 22 years earlier, and was unsure if he had used the
    device properly. The SCAJ in that case held that the officer had not acted in
    good faith, and that his actions bordered on wilful blindness:
Au-Yeung
,
    at paras. 39-40, 52-56. As explained above, the actions of the constable in the
    present case are radically different. Although the constable did not abide by
    the strict letter of the policy manual, he subjectively believed that the ASD
    reading was accurate, took steps to ensure that it was, and acted in good
    faith. The trial judge fell into the error identified by Leach J. in
R. v.
    Molakandov
, [2013] O.J. No. 2482, (S.C.) at para. 59, of finding any
    breach of s. 254(3) of the
Criminal Code
sufficient reason to favour
    exclusion of evidence under the first
Grant
factor. The first
Grant
factor favours admission of the evidence.

[27]

The
    second
Grant
factor addresses the impact of the breach on the
    interests of the accused. The trial judge discerned two competing lines of
    authority setting out the methodology for assessing the seriousness of the
    impact of the accused in breath sample cases. In the line followed by the trial
    judge, led by
Au-Yeung
, the trial judge is to consider not just the
    impact of the administration of the breath sample procedure, which is itself
    minimally intrusive, but the entirety of the procedure faced by the accused
    after arrest. In this case, it would include the initial detention, the
    respondents being placed in the back of a police cruiser and transported to a
    police station, and detention at the police station for a substantial period of
    time. The trial judge, in keeping with the
Au-Yeung
line of authority,
    viewed the entirety of procedures as constituting a serious impact on the
    respondent, and strongly indicating exclusion of the evidence.

[28]

The
    second line of authority rejects the
Au-Yeung
approach and would limit
    the second
Grant
factor to addressing the intrusiveness of the breath
    sample procedure itself: for example,
Molakandov
;
R. v. Ramsammy
,
    2013 ONSC 7374;
R. v. Marchi
, 2016 ONCJ 757;
R. v. Ho
, 2014
    ONSC 5034, revd on other grounds 2015 ONCA 559.

[29]

Much
    of the debate between these two lines of cases focuses on the significance of
    statements in
Grant
, in which the Supreme Court identifies breath
    samples as a central or paradigmatic example of a minimally intrusive search:
    see paras. 106-111. Although, as the respondent argued, the proposition that
    breath sample procedures are minimally intrusive is simply
dicta
in
Grant
,
    it should be noted that the statement was no mere throwaway line. The Supreme
    Court chose the example of breath sample procedure as an apt and economical
    means of illustrating the concept of a minimally intrusive search. And the Court
    assuredly did so in the knowledge that most formal demands for breath samples
    would be accompanied by an arrest and by all of the accompanying incidents
    itemized by the trial judge.

[30]

This
    reading of
Grant
is consistent with other judgments of this court,
    such as
R. v. Manchulenko,
2013 ONCA 543,116 O.R. (3d) 721, where Watt
    J.A. refers to the general rule with respect to the admissibility of breath
    samples due to their non-obtrusiveness (at para. 100)  and, citing
Grant
at
    para. 111, says that as a general rule, reliable evidence obtained by less
    egregious and invasive intrusions into privacy, bodily integrity and dignity,
    such as the taking of breath samples, may be admitted.

[31]

Similarly,
    in
R. v. Guenter,
2016 ONCA 572, 350 O.A.C. 318,

Brown J.A.
    notes, at para. 98, that [t]he collection of the breath samples amounted to no
    more than a minimal intrusion upon the appellants privacy, bodily integrity
    and human dignity:
Grant,
at para. 111.

[32]

To
    find otherwise would be to create a categorical rule that s. 8 breaches in
    breath sample cases automatically favour the exclusion of evidence under the
    second
Grant
factor, since drivers in these cases are almost
    invariably arrested and taken to the police station to provide further breath
    samples. This would be contrary to the approach taken by the Supreme Court in
Grant
and to a sound characterization of what is at stake for the individual in
    providing a breath sample. Accordingly, it was an error for the trial judge,
    and the SCAJ, to have followed
Au-Yeung
in this respect and not to
    have found the impact of the breach to have been minimal, favouring admission.

[33]

With
    respect to the third
Grant
factor, the societal interest in an
    adjudication on the merits, the trial judge made no error in finding the breath
    samples to be reliable evidence, favouring admission.

[34]

Accordingly,
    all three
Grant
factors favour admission, and the breath samples ought
    not to have been excluded from evidence.

Disposition

[35]

I
    would allow the appeal, enter a conviction, and remit the matter to the trial
    judge for sentencing.

Released: March 19, 2018

B.W. Miller J.A.

I agree David Watt
    J.A.

I agree C.W.
    Hourigan J.A.


