Case Name:

R. v. Dodman

BetweenHer Majesty the Queen, and

Jason Dodman

[2008] O.J. No. 5588

Ontario Court of JusticeMilton, Ontario

F.L. Forsyth J.

Heard: July 15, 2008.Oral judgment: July 15, 2008.

(20 paras.)

Charges: S. 253(a) Criminal Code of Canada - Impaired Driving -- S. 253(b) Criminal Code ofCanada - Over 80.

Counsel:

M. McGuigan Counsel for the Crown.

M. Riddell Counsel for the Defendant.

1 F.L. FORSYTH J. (orally):-- Mr. Dodman is charged that he operated a motor vehicle whilehis ability to do so was impaired by alcohol. He is further charged that he operated a motor vehiclehaving consumed alcohol with a concentration of alcohol in his blood exceeding 80 milligrams ofalcohol in 100 millilitres of blood. Following the Crown's case, the defence brought an applicationunder Section 8 of the Canadian Charter of Rights and Freedoms for the exclusion of the breath testresults pursuant to section 24(2) of the Charter.

2 P.C. David Preece of the Halton Regional Police Service was participating in a RIDE cheek

Page 1

point with other Halton Regional officers when the defendant's vehicle approached him and wasstopped at 2:14 a.m. The defendant was the driver and had a front seat passenger seated beside him.The officer asked the defendant if he had had any alcohol to drink earlier that evening. Thedefendant stated that he had nothing to drink that evening and that he was on his way back home.P.C. Preece detected an odour of an alcoholic beverage coming from the breath of the defendant. Henoticed a bottle of what he thought to be alcohol on the floor of the front passenger side of thevehicle. He asked the defendant to pass the bottle to him and he complied. P.C. Preece smelled thecontents of the bottle and it smelled like rye whiskey to him. The defendant immediately stated itwas not his bottle. I note that P.C. Preece did not ask the defendant when he had his last drink.

3 P.C. Preece then asked the defendant to pull over his vehicle and the defendant complied. Hethen asked him for his licence, ownership and insurance and once again the defendant complied.P.C. Preece observed that the defendant's speech was slurred and his eyes appeared to be bloodshotand glassy.

4 At 2:28 a.m., P.C. Preece made a demand that the defendant provide a sample of his breath intoan approved screening device. He did so because he suspected that the defendant had been drinkingin excess of the legal limit. P.C. Preece had an approved instrument with him at the RIDE checkpoint. On cross-examination by Mr. Riddell it was revealed that he did not record when the devicehad last been calibrated. He did state that he believed the approved screening device was workingproperly and was in proper working order.

5 P.C. Preece then asked the defendant to step out of his vehicle and walk to the rear of his car.Mr. Dodman provided a suitable sample into the approved screening device. The result of the testwas a fail. At 2:34 a.m., the defendant was arrested by P.C. Preece for the offences of impaireddriving and driving over 80. He provided the defendant with his rights to counsel and at 2:42 a.m.left the scene with the defendant en route to the police station for the breath tests. He arrived thereten minutes later and the defendant was escorted into the station and booked in by the sergeant onduty. The defendant declined an opportunity to speak with counsel. P.C. Preece provided P.C.Woodworth, the qualified technician, with his grounds and did not see Mr. Dodman again until hewent to serve documents upon him at 4:15 a.m., where no further observations were noted.

6 Further in cross-examination, P.C. Preece was suggested about the possibility that thedefendant had consumed alcohol just prior to being stopped. He agreed that it was possible as he didnot believe Mr. Dodman. He agreed that he had been trained that if the person using the approvedscreening device had consumed alcohol within the last 15 minutes, the approved screening devicecould give what he referred to as a false high reading.

7 P.C. Preece relied upon the defendant's denial of drinking alcohol and his denial that the openalcohol bottle was his. He agreed, however, that when he did the approved screening device test hedid not know if the result was accurate, given the possibility of mouth alcohol contamination. P.C.Preece also conceded in cross-examination that had the defendant passed the approved screening

Page 2

device test, he might have still arrested the defendant nonetheless due to the signs and indicia ofimpairment that he demonstrated at the scene. P.C. Preece further testified that he was trained togive a person that appeared to be impaired the approved screening device test, even if he had othersufficient grounds to arrest for impaired driving.

8 The defendant's breath was received into an Intoxilyzer 5000C instrument twice for analysis,and the results were analyzed at 169 milligrams of alcohol in 100 millilitres of blood, and 164milligrams of alcohol in 100 millilitres of blood, respectively. P.C. Woodworth, the qualified breathtechnician, observed that the defendant's eyes were bloodshot, his face fully flushed, there was anodour of alcohol on his breath, he was unsteady on his feet and his speech was slurred. Heconcluded that the effects of alcohol were obvious and that the defendant was impaired by alcohol.

9 Mr. Riddell submits that the Crown cannot demonstrate that the warrantless search and seizurewas properly made. Mr. Riddell further submits that the seizure of the defendant's breath byConstable Preece and by Constable Woodworth was a breach of Section 8 of the Canadian Charterof Rights and Freedoms and that the result of those tests should be excluded pursuant to section24(2) of the Charter as remedy here.

10 In my view, the determination of whether P.C. Preece had reasonable and probable grounds toarrest the defendant, or make a section 254(3) demand, is a mixture of subjective and objectiveelements. While P.C. Preece may have felt that he had subjective grounds to conclude that thedefendant had committed an offence under Section 253 of the Criminal Code, the officer'sconclusion must be looked at and scrutinized objectively by this Court.

11 I therefore must consider whether a reasonable person in the place of P.C. Preece would havecome to the same conclusion as he came to. I have difficulty concluding that the grounds stated bythe arresting officer were objectively reasonable. In isolation, the officer's suspicion that thedefendant had driven a motor vehicle with excessive alcohol in his body seems to be a reasonableconclusion. The difficulty, however, was that he should have waited the full 15 minutes after hisstop of the defendant's motor vehicle before demanding a breath sample from the defendant.

12 The defendant denied that the open whiskey bottle was his. However P.C. Preece agreed incross-examination that he did not believe that the defendant had consumed no alcohol, and furthersuspected that the whiskey could have been consumed by the defendant just prior to being stopped.I also noted that further in cross-examination, the officer on suggestion accepted that he knew thatmouth alcohol could cause a false high reading on the approved screening device and that theproper procedure was to wait at least 15 minutes from the last drink before administering anapproved screening device test.

13 P.C. Preece also agreed with Mr. Riddell, when he suggested to him that when he did theapproved screening device test, he did not know that the result would be accurate because ofpossible mouth alcohol. Now I am mindful that there were other signs of the defendant's impairmentby alcohol. However the objective portion of the test for reasonable and probable grounds requires

Page 3

that the Court consider what a reasonable person would do when faced with the conflicting factspresented to P.C. Preece here in the case at bar.

14 I think that in light of the evidence that came out in cross-examination, that when P.C. Preecerequired the defendant to provide a breath sample into an approved screening device, he did notknow if the result of that test was going to be accurate because of mouth alcohol. Hence it seemstrite to say that the fail result was no basis for the reasonable grounds to arrest the defendant, normake the breath demand.

15 In the case at bar however P.C. Preece did not wait but instead went ahead with the breath test,even though he knew and accepted, in retrospect, that the test could indeed result in a false highreading. Objectively he had no grounds to neither arrest the defendant nor make the Intoxilyzer5000C demand. The protections put in place in the Criminal Code to make the seizure of adefendant's breath legal were not complied with and in my view the Crown has failed to show thatthe warrantless seizure was justified.

16 Therefore, pursuant to section 24(2) of the Charter, I must now turn to the issue of remedy.The admission of evidence of breathalyzer readings is not automatic once an infringement of anaccused's constitutional rights has been made out. In order to have the evidence excluded, thedefendant must establish that in light of all the circumstances of the case, the admission of theevidence in the proceeding could bring the administration of justice into disrepute. The SupremeCourt of Canada, in R. v. Collins (1987), 33 C.C.C. (3d) 1, has developed a framework for section24(2) analysis which provides three categories for consideration. Those are the fairness of the trial,the seriousness of the violation and the effect on the repute of the administration of justice ofexcluding the evidence.

17 While the approved screening device is, in essence, an investigatory tool when properly used,the approved screening device could still give a false reading. Yet the officer here nonethelessadministered a breath test without waiting the requisite 15 minutes. In my view, to admit thisevidence would render the trial unfair.

18 While I find that the police in this case did not act maliciously or with the intention ofviolating Mr. Dodman's section 8 Charter rights, I do not believe that they acted appropriately. Thebreach of Mr. Dodman's Charter rights here is relatively serious.

19 In my view, the greater harm to the repute of the administration of justice would be to admitthis evidence as the Court would be appearing to condone a relatively serious error in police workthat subsequently breached a citizen's rights.

20 For the foregoing reasons, I conclude that the accused has met the onus of establishing that toadmit the breathalyzer results would bring the administration of justice into disrepute. The Crowntherefore cannot prove the over 80 charge without the evidence of the Intoxilyzer 5000C analysis.The over 80 charge must, therefore, be dismissed.

Page 4

qp/s/qlbxm/qlcnt

Page 5