



COURT
    OF APPEAL FOR ONTARIO

CITATION: R. v. Chandrasegaran, 2022 ONCA 241

DATE: 20220321

DOCKET: M53112

Thorburn J.A. (Motions Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

Vijay Chandrasegaran

Applicant

Kenneth
    W. Golish,
for the applicant

Mark
    Luimes, for the respondent

Heard:
    in writing

ENDORSEMENT

OVERVIEW

[1]

The Applicant, Vijay Chandrasegaran, seeks leave
    to appeal the decision of the Summary Conviction Appeal (SCA) judge to uphold
    his conviction for operating a motor vehicle while exceeding 80 mg of alcohol
    in 100 mL of blood, contrary to s. 320.14(1)(b) of the
Criminal Code,
R.S.C.
    1985, c. C-46. He also seeks to stay his driving prohibition pending appeal.

[2]

The trial judge determined that the arresting
    officer lacked reasonable and probable grounds to arrest and make a breath
    demand, and that the Applicants ss. 8, 9 and 10(a)
Charter
rights had
    been violated.

[3]

However, she decided that the results of the
    breath samples given by the Applicant should not be excluded from evidence,
    pursuant to s. 24(2) of the
Charter
. She therefore convicted the Applicant
    and sentenced him to a fine of $2,000 and a one-year driving prohibition.

[4]

On appeal, the SCA judge upheld the Applicants
    conviction
.

[5]

The Applicant now seeks leave to appeal the appeal
    decision rendered by the SCA judge.

[6]

Leave to appeal under s. 839(1) of the
Criminal
    Code
is granted sparingly, and only on questions of law. Two factors must
    exist in order to grant leave to appeal: (1) the legal issues must be
    significant to the general administration of justice; and (2) there must be
    merit to the appeal:
Criminal Code
, s. 839(1);
R. v. R. (R.)
,
    2008 ONCA 497, 59 C.R. (6th) 258, at paras. 24, 31-34.

[7]

For the reasons that follow, I find the SCA
    judge made no legal error, nor is there a legal issue of broader legal
    significance to the administration of justice, and leave to appeal is therefore
    denied.

THE FACTS

[8]

The underlying facts are as follows: on March
    17, 2019, at 2:43 a.m., Windsor Police Service Constable MacKinnon saw the
    Applicants vehicle make an overly wide turn, go into the part of the road
    designated for parking, and come back into the main portion of the road. The
    Applicant turned without signaling and failed to stop at a stop sign. Officer
    MacKinnon and his partner stopped the vehicle.

[9]

When Officer MacKinnon approached the
    Applicants vehicle, he observed a red plastic cup with brown liquid. The cup
    was located behind the front passenger seat. Beside the cup, the floor was wet.
    On the floor by the front passenger seat, he observed a half empty bottle of
    whisky. Three bottles of Pepsi, one opened, were located on the front passenger
    seat.

[10]

Officer MacKinnon advised the Applicant that he
    had been stopped for failing to stop at a stop sign.

[11]

At 2:44 a.m., Officer MacKinnon formed the
    opinion that the Applicant was impaired, based on the Applicants driving
    behaviour, the fact that there was an open bottle of alcohol in the vehicle,
    and the strong odour of alcohol on the Applicants breath.

As he was giving Officer
    MacKinnon his documents, the Applicant told Constable MacKinnon that he had
    recently left a bar. As the Applicant got out of his vehicle, Officer MacKinnon
    noted that the Applicant was unsteady on his feet and using his vehicle to
    balance himself.

[12]

As such, also at 2:44 a.m., the Applicant was
    arrested and charged with impaired driving.

[13]

One minute later, at 2:45 a.m., Constable
    MacKinnon read the Applicant his right to counsel and cautioned him.

[14]

At 2:46 a.m., Officer MacKinnon made a breath
    demand. A roadside alcohol screening test was not administered. Constable
    MacKinnon was unable to recall whether there was a roadside alcohol screening
    device in his cruiser.

[15]

At 2:50 a.m., the Applicant was taken to the
    police station where he was administered tests by a qualified breath
    technician. The readings, once rounded down to the nearest 10 mg, were 190 and
    180 mg of alcohol in 100 mL of blood. Both the certificate and a print-out were
    introduced during the
voir dire
, which evidence was merged into the
    evidence at trial. The Certificate contains an empty space where the time of
    the first test was supposed to be recorded. The time of the second test is
    stated to be 17.

THE TRIAL JUDGES DETERMINATION

[16]

The trial judge found that Officer MacKinnons
    observations were objective enough to enable him to form a suspicion that the
    Appellant had alcohol in his body, but not enough to constitute reasonable and
    probable grounds to believe the Applicant had committed the offence of driving
    while impaired.

[17]

Accordingly, she found that Officer MacKinnon
    breached the Applicants s. 8
Charter
right to be free from
    unreasonable search and seizure and his s. 9 right not to be arbitrarily
    detained.

[18]

She also concluded that Officer MacKinnon breached
    the Applicants s. 10(a)
Charter
right to know the reason for detention
    or arrest by failing to immediately inform him that he was being investigated
    for a criminal offence. She held that Officer MacKinnon was obliged to advise the
    Applicant of the criminal investigation as soon as the detention occurred, having
    formed the opinion that the Applicant was operating a motor vehicle while
    impaired before speaking to him.

[19]

She held, however, that the breaches were not
    serious, as,

[T]he officer  could have resorted to use of
    the roadside approved screening device based on a suspicion of alcohol in the Applicants
    body, and then couldve
relied
upon the results from the
[Approved Screening Device]
to arrest the Applicant. I find in the circumstances that this was
    not a serious breach of the Applicants right.

[20]

In assessing whether to exclude the evidence in
    view of the
Charter
breaches, she held that,

Breath sampling procedures involve a minimally
    intrusive search and seizure. The 10(a) breach occurred for a matter of seconds
    before the arrest and rights to counsel. The breach had only a minimal impact
    on the Applicants
Charter

protected interests. It was the
    officers testimony that he had already come to an opinion from the driving and
    the alcohol observed within the
vehicle
, and that was confirmed by the smell from the Applicants breath.
    That means that nothing specific said by the Applicant nor observations made
    during the brief time when his 10(a) rights were breached, was used to
    incriminate him.

THE SUMMARY CONVICTION APPEAL COURT DECISION

[21]

In deciding whether to uphold the trial judges
    decision, the SCA judge said that in respect of the alleged breach of the
    Applicants sections 8 and 9
Charter
breaches:

I agree with counsel for the Appellant that
    the trial judges analysis under the first part of the test was brief. I
    disagree that it was unsatisfactory.

In concluding that the seriousness of the
    breach fell at the lesser end of the spectrum, it is clear that the trial judge
    focused on the brief amount of time that the police would have infringed the Appellants
    rights and the fact that Constable MacKinnon was acting in good faith.

Although not perfectly articulated, it is
    apparent from the trial judges reasons that she felt that it was a close
    call whether the officer had the requisite reasonable and probable grounds
    under s. 320.28. She clearly felt that he did under s. 320.27. Her comment
    about the officer stopping the vehicle to investigate based on the driving
    observed indicates a finding that the manner in which the Appellant was
    driving warranted the traffic stop. Her conclusion that the short duration of
    time involved implicitly rejected the evidence of the Appellant on how long the
    encounter took.

On this appeal, I am asked to impugn the fact
    that all Windsor police cruisers are not equipped with approved screening
    devices, resulting in a systemic infringement of s. 8 and 9
Charter

rights. This ignores the fact that the police are not required to make an
    ASD demand even where grounds exist to do so (see
R. v. Kubacsek

[2021
    ONSC 5081, 73 C.R. (7th) 390], para. 55). While it is true that had Constable
    MacKinnon had an approved screening device with him, he could have strengthened
    the reasonable grounds he felt he had under s. 320.28, the trial judge has already
    found that he acted in good faith even if he was in error in concluding he was justified
    in making the s. 320.28 demand. This is not a case like [
R. v. Najev
, 2021
    ONCJ 427] where the police officers were conducting a RIDE program and having
    an approved screening device on hand would ensure that motorists
Charter

rights were not unnecessarily infringed. I also note that there was no
    evidence at trial that the Windsor Police routinely do not have ASDs on hand
    that would have permitted the trial judge, or myself, to conclude that this is
    a systemic issue.

[22]

The SCA judge therefore upheld the trial judges
    decision not to exclude Officer MacKinnons evidence as to the Applicants
    intoxication.

[23]

Secondly, the SCA judge upheld the trial judges
    decision that the Certificate of the Applicants blood alcohol content should
    not be excluded as,

First of all, s. 320.31 does not explicitly
    require that the certificate contain the time at which the sample was taken.
    That section requires that the technician perform a system blank test, that
    the samples were taken at least 15 minutes apart and that, when rounded down to
    the nearest 10 mg, the two samples are within 20 mg of alcohol in 100 mL of
    blood of each other.

The certificate in this case specifically
    states that the system blank tests were conducted, although it is not clear
    from the certificate when. The certificate clearly notes that there was an
    interval of at least 15 minutes between the times when the samples were taken.
    The two results, 190 mg and 180 mg of alcohol in 100 mL of blood are set out
    and it is noted that these do not differ by more than 20 mg of alcohol in 100
    mL of blood. Thus, the certificate does contain all of the elements require under
    s. 320.31.

THE APPLICANTS GROUNDS OF APPEAL

[24]

The Applicant claims the SCA judge erred in upholding
    the trial judges decision (1) to admit Officer MacKinnons uncorroborated evidence
    of the Applicants intoxication; (2) to rely on the Certificate showing the
    Applicants blood alcohol level content, which did not include the time of his
    first breath reading; and (3) to allow the evidence under s. 24(2) notwithstanding
    her finding that there were
Charter
breaches.

[25]

The Applicant claims the issue of whether a
    screening device is required to independently confirm a peace officers
    evidence of reasonable grounds is an issue of broader public interest as he
    claims the issue will likely arise in other cases. The Applicant further submits
    that a finding of reasonable and probable grounds should be supported by
    independent evidence such as a screening device, video evidence or other
    witnesses. He likens this submission to the one advanced by the appellant in
R.
    v. Moore-McFarlane
(2001), 56 OR (3d) 737 (C.A.).

[26]

The Applicant claims the appeal has merit, as the
    s. 8
Charter
breach was serious and the trial judges brief reasons
    were patently inconsistent with the principles in
R. v. Grant
, 2009
    SCC 32, [2009] 2 S.C.R. 353. The Applicant claims that admission of this
    evidence will result in giving police
carte blanche
to continue to
    arrest individuals and gather evidence without reasonable and probable grounds
    and that [k]ey to this case is the ready availability of a roadside screening
    device. Because reasonable suspicion permits the police to pursue methods of
    investigation otherwise unavailable to them, allowing the police to effectively
    transpose reasonable suspicion to reasonable grounds should normally weigh
    against admission of evidence.

[27]

Moreover, the Applicant claims the Certificate
    was clearly defective on its face and although new provisions of the
Criminal
    Code
allow for evidence from a machine print-out to be admitted, the print-out
    cannot support a finding of guilt.

[28]

The Crown submits that the SCA judge correctly
    applied the
Grant
factors and made no error in deciding to uphold the
    trial judges decision to admit the breath sample evidence at trial and that all
    the elements of the offence of Over 80 were made out on the evidence.

ANALYSIS AND CONCLUSION

The Admission of Officer MacKinnons
    Testimony Regarding the Applicants Intoxication

[29]

The SCA judge rejected the Applicants submission
    that Officer MacKinnons failure to corroborate his reasonable suspicion with
    an Approved Screening Device (ASD) was sufficient to exclude his evidence and
    overturn the conviction.

[30]

There is no rule that, when evidence comes from
    oral testimony of police officers, it must be corroborated by other evidence
    such as an ASD, police bodycam footage, or civilian testimony.

[31]

The uncorroborated testimony of a witness can
    provide a basis to find reasonable and probable grounds for arrest.
    Corroboration by an ASD is not required and, in some instances, could even
    unnecessarily delay the breath demand if the officer already had reasonable
    grounds:
R. v. Bernshaw
, [1995] 1 S.C.R. 254 at paras. 37-38 4;
R.
    v. Bush
, 2010 ONCA 554, 101 O.R. (3d) 641, at para.
60;
R. v. Censoni
, [2001] O.T.C. 948 (Ont. S.C.), at para.
50;
R. v. Bates
, [2005]
    O.T.C. 916 (Ont. S.C.) at paras.
7-15;
R. v.
    Rodriguez
(2001), 18 M.V.R. (4th) 207 (Ont. S.C.) at paras. 9 and 20-21;
R.
    v. Gunn
, 2012 SKCA 80, 2012 SKCA 80, at para. 21; and
R. v. Schofield
,
    2015 NSCA 5, 354 N.S.R. (2d) 187, at para. 35.

[32]

As such, I see no error of law or issue of
    broader public importance. Moreover, as noted by the SCA judge, the impact of
    the breach on the applicants rights was minimal, the taking of a breath sample
    is minimally intrusive, and the duration of the s. 10(a) breach was a matter of
    seconds.

Admission of the Certificate Setting out
    the Blood Alcohol Level Content

[33]

Section 320.31 of the
Criminal Code
provides
    that,

320.31
(1) If
    samples of a persons breath have been received into an approved instrument
    operated by a qualified technician, the results of the analyses of the samples
    are conclusive proof of the persons blood alcohol concentration at the time when
    the analyses were made the lowest of the results is conclusive proof of the
    persons blood alcohol concentration at the time when the analyses were madeif

(a) before each
    sample was taken, the qualified technician conducted a system blank test the
    result of which is not more than 10 mg of alcohol in 100 mL of blood and a
    system calibration check the result of which is within 10% of the target value
    of an alcohol standard that is certified by an analyst;

(b) there was an
    interval of at least 15 minutes between the times when the samples were taken;
    and

(c) the results of
    the analyses, rounded down to the nearest multiple of 10 mg, did not differ by
    more than 20 mg of alcohol in 100 mL of blood.

[34]

As noted by the SCA judge, s. 320.31 does not
    explicitly require that the Certificate contain the time at which the sample
    was taken; it requires only that the technician perform a system blank test,
    that the samples be taken at least 15 minutes apart and that, when rounded down
    to the nearest 10 mg, the two samples are within 20 mg of alcohol in 100 mL of
    blood of each other.

[35]

The Certificate shows that system blank tests
    were conducted at least 15 minutes apart, although it is not clear from the Certificate
    at precisely what times when they were performed. The two results, 190 mg and
    180 mg of alcohol in 100 mL of blood, are set out and they do not differ by more
    than 20 mg of alcohol in 100 mL of blood. Thus, the required elements are on
    the Certificate.

[36]

The SCA judge correctly held that, although the Certificate
    did not show the time that the samples were taken, the statutory requirements
    of r s. 320.31
Criminal Code
were met: system blank tests were
    conducted, there was an interval of at least 15 minutes between samples taken,
    and the two results (180 and 190 mg alcohol in 100 mL blood) did not differ by
    more than 20 mg alcohol.

[37]

Second, at trial the Applicants counsel
    confirmed that there were no issues with the Certificate, and when the Crown
    sought to elicit the officers evidence with respect to the blood alcohol
    concentrations, the Applicants trial counsel interrupted and advised that this
    would not be necessary. In light of this, the SCA judge correctly held that it was
    not in the interests of justice to permit the Applicant to raise this issue for
    the first time on appeal.

[38]

This was a fact-specific finding made by the
    trial judge after the Applicants counsel had confirmed there were no issues
    with the certificate, which finding was upheld on appeal. I see no error of law
    on the part of the SCA judge and it engages no issues of significance to the
    administration of justice.

Admission of Evidence Notwithstanding the
    Finding that there were
Charter
Breaches

[39]

The trial judge admitted the evidence of the
    breath samples despite finding that Officer MacKinnon did not have reasonable
    grounds to make the demand. She did so on the basis that the officer was acting
    in good faith, the infringement lasted only seconds, and the question of
    reasonable grounds was a close call.

[40]

The SCA judge also noted that the evidence was
    that Officer MacKinnon had only a few years experience.

[41]

The SCA judge correctly noted that the trial
    judges conclusions were entitled to deference and he saw no error in the trial
    judges decision to admit the evidence on this basis.
T
he SCA judge distinguished each of the cases relied
    on by the Applicant.

[42]

I see no legal error on the part of the SCA
    judge or any issue of broader public import in his decision to uphold the trial
    judges balancing of the
Grant
factors.

CONCLUSION

[43]

For these reasons, leave to appeal is denied.

J.A.
    Thorburn J.A.


