ASAP: Constitutional or Evidentiary Requirement, it depends

Shady Mawad was convicted of over 80. Mawad had argued that the police, in making a demand for his breath and taking the samples violated section 8. The trial judge found that there was a section 8 violation in relation to the making of the demand but admitted the evidence under section 24(2) and convicted Mawad who appealed. That appeal was dismissed: R v Mawad, 2016 ONSC 7589.

Shady Mawad was driving his car. Someone thought he was impaired. They called the police. Officer Guthrie received a radio call at 4:34 am. Guthrie located Mawad at 4:41. After speaking with Mawad and forming a reasonable suspicion, Guthrie made a ASD demand at 4:47 am Mawad produced a fail at 4:53 am. At 4:57 Guthrie arrested Mawad and read his rights to counsel (a minute later) – leaving the scene at 5:29. The arresting officer failed to make a breath demand. At 6:20 the breath technician took custody of Mawad and made the breath demand at 6:26.

Given that the first sample was obtained beyond two hours of the time of driving, at trial the Crown called a forensic toxicologist to “read back” the samples and provide direct evidence regarding Mawad’s BAC at the time of the offence.

Mawad argued that his s8 rights were violated – by the failure to make the demand as soon as practicable and by the failure to take the samples as soon as practicable. The trial judge concluded that the breath demand was not made by the officer as soon as practicable but admitted the evidence under s24(2). The trial judge did not find that the failure to obtain the samples as soon as practicable violated s8. Mawad was convicted. He appealed.

On appeal Mawad argued, inter alia, that the trial judge erred in not finding that the delay in taking the samples violated s8.

With respect to the taking of the samples, Mawad asserted that the failure to take the samples as soon as practicable amounted to a violation of s8. The summary conviction appeal court rejected that notion. The requirement that samples be taken as soon as practicable in section 258(1)(c) is an evidentiary requirement that permits the Crown to take advantage of the presumption of identity. Where the samples are not taken as soon as practicable the Crown loses that presumption. The results are still admissible however. The summary conviction appeal court, citing R v Deruelle, [1992] 2 SCR 663 and R v Newton, 2013 ONSC 644 in support, held:

With great respect, I fail to see how a statutory short cut given to the Crown to prove a charge of “Over 80” against an accused can be elevated to a violation of his or her constitutional rights. [@26]

Mawad is a helpful decision that clarifies the impact and scope of provisions that are sometimes misconstrued. In short, three points summarize the principles elucidated by this decision. First, s254(3) requires that an officer makes a breath demand as soon as practicable upon forming grounds. This provision is the statutory authority that permits the obtainment of breath samples. Failure to comply with that requirement undermines that authority and thus has constitutional implications – a section 8 violation.

Second, s258(1)(c) requires that samples be taken as soon as practicable. This provision is merely an evidentiary assist, however. Failure to comply with this requirement has no constitutional implications – merely evidentiary ones (the loss of the presumption of identity).

Third, the requirement that samples be “provide[d]” as soon as practicable in s254(3) is not one that is imposed on the state. It follows that the failure to obtain samples as soon as practicable has no constitutional implications.


Objective validity: is that sufficient?

Jerzy Czerniawski was pulled over by the police. The stop was lawfully made to check on the sobriety of Czerniawski. The officer asked if he had any alcoholic beverages. Czerniawski said he had drunk four hours ago. The officer noted glossy and watery eyes, Czerniawski’s face was flush and there was a strong odour of an alcoholic beverage on his breath. The officer then said to Czerniawski that “he would be doing a roadside breath test”. The officer then read his demand from his notebook. Czerniawski was then escorted to the officer’s cruiser. The officer demonstrated the functioning of the approved screening device [ASD] and explained that Czerniawski had to provide a suitable sample of his breath. Czerniawski did so. He failed. He was arrested. It was later determined that his blood alcohol content was over the legal limit. He was charged.

At trial Czerniawski sought to exclude those results arguing that the officer violated his rights under section 8: 2016 ONCJ 505. The trial judge set out the officer’s evidence on this point as follows:

I approached him and asked if he had consumed any alcoholic beverages and at that point he admitted to me he was drinking four hours ago. I observed his eyes to be glossy and watery and his face to be flushed…I detected a strong odour of an alcoholic beverage on his breath. At that point I advised him he would be doing a roadside breath test. I subsequently read him and showed him the approved screening device demand from the front page of my notebook. [para 106]

The trial judge found that there was a breach of section 8. He did so on the basis that there was no evidence that the officer formed a “reasonable suspicion” to make the ASD demand as required by section 254(2).

In the case at bar, there is no evidence that Officer Bell formed a reasonable suspicion that Mr. Czerniawski had alcohol in his body while driving a motor vehicle. Therefore, based on the wording of s. 254 (2) of the Criminal Code and on the jurisprudence cited above, I find that Officer Bell failed to follow the required “statutory pathway” in order to make a legal demand to Mr. Czerniawski that he provide a sample of his breath into the approved screening device. Consequently, the obtaining of Mr. Czerniawski’s breath sample into the ASD was illegal. [Para 119].

The trial judge went on to exclude the results under section 24(2) finding there was a serious breach as the accused was “forced” to provide the roadside sample without the proper legal foundation for doing so.

With respect, this ruling is difficult to accept. First, while the officer did not say the “magic words” – that he formed a reasonable suspicion, it seems apparent that not only did he do so, but that he had more than adequate grounds to do so. Indeed, even if he had not subjectively formed the suspicion that the accused had alcohol in his body, objectively the grounds were more than sufficient. In other words, there was a legal basis upon which to make the demand.

Second, there is no need to say the “magic words”: Deitz, 1993 ABCA 24; Nesbeth, 2008 ONCA 579 @19-20; Harrison, 2012 BCCA 339 @13-14.

Third, even if there was a breach the evidence should not have been excluded. The indicia noted were undoubtedly sufficient to support a suspicion. Therefore, even if the officer did not subjectively understand he had the basis to make the ASD demand, objectively he did. In other words, the demand was objectively lawful. The samples could have been lawfully obtained. In this way the breach is a mere technical failure of the officer to properly articulate (or understand) that he had the legal basis to do what he did – something he was lawfully entitled to do.


You've been served

Redford had a criminal blood alcohol concentration (BAC) while driving. The Crown established this by calling the qualified breath technician to testify about the breath testing procedure and results. Redford had no substantive defence for his crime, rather he argued that the Crown had not satisfied the Court beyond a reasonable doubt that they had complied with the notice requirements found at section 258(7) of the Code. The trial judge disagreed and convicted Redford who in turn successfully appealed to the summary conviction court. In a 2-1 decision the Alberta Court of Appeal restored the conviction: 2014 ABCA 336.

Section 258(7) stipulates that “no certificate shall be received into evidence … unless the party intending the produce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate.”

At trial the qualified breath technician testified that after completing the breath testing “he took a document containing the Certificate of Analyses and Notice of Intention to Produce Certificate, completed the portion of the document consisting of the Notice of Intention to Produce, and gave a copy of the certificate to” Redford. The breath tech handed the paperwork to Redford and explained its contents. Because Redford was facing other charges and was going to be taken into custody, the officer then took the certificate back and placed it with Redford’s other property. The officer testified that he completed a Personal Property Report where he itemized Redford’s personal effects including the certificate; Redford signed this report. The officer completed an affidavit of personal service on the back page of the certificate.

No evidence was adduced at trial about whether upon his release Redford had ever received his personal property, including the certificate.

At trial Redford argued that it had not been proven beyond a reasonable doubt that section 258(7) had been complied with.  The trial judge was satisfied on a balance of probabilities that section 258(7) had been complied with, however also indicated that if he was in error and the applicable standard of proof was beyond a reasonable doubt, he would not have been so satisfied.  The summary conviction appeal court held that the trial judge had erred in concluding that the Crown had only an evidentiary burden to meet and that the applicable standard was beyond a reasonable doubt.

The Alberta Court of Appeal framed the issues as follows: first, did the trial judge err in concluding that the standard of proof for the service of the Certificate of Analyses under section 258(7) was a balance of probabilities. Second, was that section complied with?

With respect to the first question the majority of the Court held that:

(t)he purpose of s 258(7) is to provide an accused with reasonable notice of the Crown's intention to introduce into evidence the Certificate of Analyses and to provide a copy of the certificate to the accused. The provision governs only admissibility; it does not, without more, trigger any presumption. It is purely procedural. To take the benefit of a presumption, the Crown must go on to prove compliance with the prerequisites under s 258(1)(g) and then compliance with the prerequisites under s 258(1)(c). Section 258(7) does not establish facts which trigger a presumption with respect to a vital issue relating to innocence or guilt. It is only the threshold for admissibility. @para 35.

Thus, the trial judge was correct in concluding that the burden was no higher than a balance of probabilities.

The Court then turned its attention to whether in the circumstances of this case section 258(7) had been complied with.

The Court held that the breath tech had served Redford with the Certificate and Notice when he sat down handed it to him and explained the contents. They went on to note that:

(w)hat transpires with the documents after that does not render service invalid. The law does not require the respondent to retain personal control or possession of the certificate. What is important, functionally, is that before trial, the respondent receives a copy of the certificate and reasonable notice that it will be tendered as evidence by the Crown. This requirement is to ensure that the accused can make full answer and defence. Compliance can be accomplished in numerous ways, including by personal service or through counsel by means of disclosure as required by R v Stinchcombe, [1991] 3 SCR 326.
Beyond this, the Crown has no addition evidentiary burden under s 258(7) to establish that the respondent retained the certificate in his possession for a certain period of time, or received it again after he was released from custody. To suggest otherwise is to confuse the issue of standard of proof with the legal requirements of the section, adding the requirement of possession to that of notice for some uncertain amount of time, requirements that currently do not exist. @paras 41-42

Thus, even if the trial judge had found that Redford had not been properly served at the station, so long as the Crown provided the Certificate at some reasonable point before trial (which would usually be done in the normal course of the disclosure process) the Crown would have complied with the section 258(7) requirement. 


New & Notable: Looking for Principles in all the Wrong Places

Singh drove while her blood-alcohol concentration was over 80. Singh’s only argument at trial was that the timing of the breath samples did not comply with the as soon as practicable requirement of section 258(1)(C)(ii).  The only time period in question was the 28 minutes that elapsed between the taking of the first and second samples. Singh argued that this time period exceeded the statutory minimum of 15minutes without any evidence to explain the delay.  The trial judge rejected this argument and held that there was no requirement for the Crown to explain every minute. Singh was convicted and appealed.

The summary conviction appeal judge allowed the appeal and expressly declined to apply the binding decision of the Court of Appeal in Vanderbruggen, 2006 CanLII 9039 (CA) because it “was not a case about unexplained delay between samples.”

The Ontario Court of Appeal restored the conviction and in so doing offered some interesting comments about how binding decisions of the Court must be read: R v Singh, 2014 ONCA 293 (CA).

First, “care must be taken to avoid reading unwarranted jurisprudential principles into a decision of the court rendered in” a brief endorsement” [@para 12]

To illustrate this point the Court pointed to the trial judge’s reliance on the Court of Appeal’s endorsement in Bulger. That decision was a four sentence oral endorsement which “does not articulate any proposition of law” [@para 11] nor does it contain “a recitation of the facts that would enable a reader to understand the overall circumstances of the case” [@para 10].

Second, the purpose of such a brief endorsement is “to simply pronounce a decision for parties who, having been present in court during the argument of the appeal, will understand the thrust of the court's reasoning”[@para 12]

Third, “[w]hen the court intends to articulate jurisprudential principles for the first time, it does so in a written judgment” [@para 12].

By way of example the Court highlighted Vanderbruggen as just such a case [@para 12].

The Court of Appeal concluded that the:

(…) trial judge drew and applied the correct principles from paras. 12-13 of Vanderbruggen. The requirement that the samples be taken “as soon as practicable” does not mean “as soon as possible”. It means nothing more than that the tests should be administered within a reasonably prompt time in the overall circumstances. A trial judge should look at the whole chain of events, keeping in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason.

It is worth repeating that the Crown is not required to call evidence to provide a detailed explanation of what occurred during every minute that the accused is in custody. These provisions of the Criminal Code were enacted to expedite the trial process by facilitating the introduction of reliable evidence to prove an accused’s blood-alcohol level. Interpreting these provisions to require an exact accounting of every moment in the chronology from the time of the offence to the second test runs counter to their purpose. As Rosenberg J.A. said in Vanderbruggen, at para. 12, "The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably" [@paras 14-15].