Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Jason Gibson
Before: Justice D.A. Harris
Heard on: April 27 and July 25, 2016
Reasons for Judgment released on: November 23, 2016
Counsel
Kelly Frew — counsel for the Crown
Irwin Z. Isenstein — counsel for the defendant Jason Gibson
Judgment
HARRIS J.:
1Jason Gibson is charged with operating a motor vehicle in the Town of Milton on June 30, 2015 when his blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of his blood.
2Crown counsel elected to proceed summarily.
3Mr. Gibson pled not guilty and a trial was held.
4Mr. Gibson had applied for an order that all evidence of the results of any Intoxilyzer tests should be excluded pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms.
5Counsel agreed that we should proceed with a "blended" hearing in which all of the evidence would be applicable to both the Charter application and to the trial.
6Provincial Police Constable John Jamieson testified for the Crown. No one testified for the defence.
7There is no issue that Mr. Gibson was operating his motor vehicle in Milton on June 30, 2015 or that the two Intoxilyzer tests showed results of 120 and 110 milligrams of alcohol in 100 millilitres of his blood.
8The issues before me are:
whether the breath results referred to above should be excluded pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms; and
whether the presumption set out in section 258(1)(c)(ii) of the Criminal Code does not apply since the breath tests were not conducted as soon as practicable.
9More particularly with respect to the Charter application, counsel for Mr. Gibson argued that the results from the approved screening device test should be excluded on the basis that Constable Jameson did not have the reasonable and probable grounds necessary to make an approved instrument demand, thereby violating Mr. Gibson's right to be secure against unreasonable search and seizure as guaranteed by section 8 of the Charter. As a result, I should exclude the Intoxilyzer results from evidence.
10I will deal with the Charter application first.
Reasonable and Probable Grounds
11Section 8 of the Canadian Charter of Rights and Freedoms provides that "Everyone has the right to be secure against unreasonable search or seizure".
12In most cases, an accused bears the burden of persuading the court on a balance of probabilities that his or her Charter rights have been infringed, but in the section 8 context, once the accused has demonstrated that the search or seizure was a warrantless one, the burden of persuasion shifts to the Crown to show that on a balance of probabilities the search or a seizure was reasonable.
13Section 254(3) of the Criminal Code authorizes peace officers to demand Intoxilyzer breath samples provided the officer "has reasonable and probable grounds to believe that a person is committing or at any time within the preceding three hours has committed" the offence of impaired operation or driving 'over 80'.
14So, to demonstrate compliance with section 254(3), the Crown must show that the police officer making the breath demand had the necessary reasonable and probable grounds to do so.
15The legal test for reasonable and probable grounds is not a high one. It is more than a mere suspicion, and less onerous than a prima facie standard.
16It is a fact based analysis of the totality of the circumstances the arresting officer had in mind. The officer is entitled to disbelieve and disregard any evidence disbelieved. However, the officer must balance any circumstance detracting from the conclusion of impairment to those suggestive of impairment, and the totality of circumstances must be sufficient that a reasonable person in the position of the arresting officer would be able to conclude that reasonable and probable grounds existed.
17There is no minimum time period nor mandatory questioning that must occur before an officer can objectively have reasonable and probable grounds.
18A trained police officer is entitled to draw inferences and make deductions drawing on experience. A trial judge is entitled to take that experience and training into account in assessing whether he objectively had reasonable and probable grounds.
19Constable Jameson was driving his police car on Highway 401 in Milton at 3:13 a.m. on June 30, 2015.
20He saw a SUV stopped on the right shoulder of the highway with either its running lights or emergency flashers on. Constable Jameson began to pull over to check on the well-being of anyone in that vehicle. He then saw a male person standing behind the car and urinating. That person quickly moved around the car and got into the driver's seat. Constable Jameson saw brake lights come on but did not recall seeing the vehicle move.
21Constable Jameson stopped about two car lengths behind that vehicle and activated his full emergency lights.
22He got out of his car and approached the SUV with a flashlight in his hand. Mr. Gibson was sitting in the driver's seat of the SUV. He was the sole occupant of the vehicle. His seat belt was on. His foot was on the brake. The vehicle was in drive.
23He detected the odour of an alcoholic beverage. Mr. Gibson's eyes were red and watery. When asked about the smell of alcohol, Mr. Gibson said that he "had just two beers at a buddy's place".
24Constable Jameson testified that he then suspected that Mr. Gibson was operating his motor vehicle with alcohol in his body and accordingly demanded that he provide a sample of his breath into an approved screening device.
25I will pause here to state that there is no doubt in my mind that Constable Jameson had acted reasonably up until this point.
26He saw a car stopped on the shoulder of Highway 401 at 3:30 in the morning and stopped to see if anyone needed assistance.
27He then saw a man urinating behind the car. Keeping in mind that this was on Highway 401, that was unusual enough to justify him investigating further.
28The odour of alcohol, the admission of consumption and the red and watery eyes provided ample reason for him to suspect that Mr. Gibson had alcohol in his body.
29Further, he had seen Mr. Gibson get into the vehicle, which was running, and place his foot on the brake pedal. He also noted that the car was in drive. So he also had reason to suspect that Mr. Gibson was operating his motor vehicle.
30So I am satisfied that Constable Jameson subjectively formed the requisite suspicion and that his suspicion was objectively reasonable.
31Constable Jameson then escorted Mr. Gibson back to his police car where he had an approved screening device. It was an Alcotest 6810. He demonstrated how to use it by conducting a self-test. The result was "zero". Constable Jameson testified that the device will not work if it has not been calibrated within the prescribed time. In addition, he had not consumed alcohol. Accordingly, he believed that the device was in proper working order.
32I note here that Constable Jameson did not refer to the device by the name listed in the regulations (Drager Alcotest 6810) but rather used an abbreviated description (Alcotest 6810). However, an officer is not required to refer to the device by its particular brand and number or otherwise identify it. It is also not necessary for the Crown to prove that the approved screening device had been properly calibrated. It is sufficient if the administering police officer reasonably believes this to be true. In the absence of evidence to the contrary, his belief is reasonable.
33Mr. Gibson blew into the approved screening device. The result was "fail" which Constable Jameson understood to indicate that Mr. Gibson's blood alcohol concentration was greater than 100 milligrams of alcohol per 100 millilitres of blood. Accordingly Constable Jameson had reasonable grounds to believe that Mr. Gibson had been operating his motor vehicle with a blood alcohol concentration exceeding 80 milligrams of alcohol per 100 millilitres of blood. He arrested Mr. Gibson for that offence and read a standard breath demand to him.
34Counsel for Mr. Gibson argued that Constable Jameson's belief was not objectively reasonable for two reasons.
35Firstly, Constable Jameson did not wait 15 minutes before conducting the approved screening device test with Mr. Gibson. As a result he could not be certain that there was no residual mouth alcohol present.
36I disagree.
37Constable Jameson testified that their location on Highway 401 was more than 15 minutes away from any place where Mr. Gibson might have been drinking. It matters not whether he was right or wrong in believing this. It is sufficient if his belief was objectively reasonable. I am satisfied that it was.
38Counsel for Mr. Gibson also argued that the approved screening device had not, in fact, indicated that Mr. Gibson had failed. He based this on certain materials which he showed to Constable Jameson. This document stated that "the device emits 3 sharp tones and a solid red light" if a fail occurs. Constable Jameson did not remember that happening. Counsel argued that Constable Jameson did not have reason to believe that Mr. Gibson had failed the test.
39Constable Jameson testified that he had seen the material provided by counsel. He believed that it was part of an online training program he had taken about three years earlier. He did not identify this as being an official training manual or user's manual. He testified that his training was such that if the approved screening device displayed the word "fail", then the subject had in fact failed.
40In the absence of any evidence to the contrary, I am satisfied that Constable Jameson's belief was objectively reasonable.
41In light of all of the above, I am satisfied that Constable Jamieson did not infringe Mr. Gibson's section 8 rights here.
42If I am wrong in this, I note that I would not have excluded the breath results pursuant to section 24(2) of the Charter in any event.
Section 24(2) Analysis
43The test set out in R. v. Grant by the Supreme Court of Canada directs me to assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to:
the seriousness of the Charter-infringing state conduct,
the impact of the breach on the Charter-protected interests of the accused, and
society's interest in the adjudication of the case on its merits.
44I must balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.
45In R. v. Grant, the court discusses the first factor, the seriousness of the Charter-infringing state conduct, as follows:
The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.
46The concern of this inquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be a happy consequence. The main concern is to preserve public confidence in the rule of law and its processes.
47Admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law.
48Good faith on the part of the police will also reduce the need for the court to disassociate itself from the police conduct.
49I am satisfied that if there was a Charter breach here, it was far from being a serious one. Constable Jameson had valid reasons for his beliefs.
50The low degree of seriousness of the Charter-infringing conduct here favours inclusion of the evidence.
51With respect to the second factor, the ensuing breath test was both minimally intrusive both in terms of what took place and the evidence obtained.
52In reaching that conclusion, I have taken note of the obiter comments in R. v. Grant that:
While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability. On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted. For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive.
53Previously, it often seemed that any infringement of the rights of those accused of drinking and driving would result in the automatic exclusion of the breath results. This passage would appear to indicate that this will not always be the case now.
54I do note the comments of Ducharme J. of the Superior Court of Justice at paras. 60 through 62 in R. v. Au-Yeung:
60 As for the s. 8 violation, it is true that the taking of breath samples pursuant to either s. 254(2) or 254(3) is not "a significant compelled intrusion upon the body." While the taking of a breath sample interferes with privacy of the person, the most assiduously protected privacy interest, the procedure is minimally intrusive in two respects. First, the procedure involved in collecting and analyzing breath samples is minimally intrusive in a physical sense. Second, the information gleaned from a breath sample is far from the "biographical core of personal information" that is protected by s. 8. These factors favour the admission of the evidence.
61 But that should not end the matter, because the demands placed on a driver to facilitate these tests are often not minimally intrusive. In this case, the appellant was arrested, handcuffed, placed in the rear of a police car and taken to a police station, a sixteen minute trip, and, once at the station, he was kept in police custody for another hour and fifty minutes. Thus, while the trial judge was correct in saying that the treatment of the appellant was not "oppressive" that is not the test. Certainly, such an interference with the appellant's personal liberty cannot be dismissed as minor. Thus, where the police lack the requisite grounds for the s. 254(3) demand, these aspects of the appellant's treatment constitute a significant violation of s. 9.
62 While the public are supportive of the legislative scheme in place to combat drinking and driving, this support cannot be presumed to extend to police actions that involve the detention and arrest of drivers without the requisite statutory and constitutional grounds. To condone or excuse the behaviour in this case would send a message to the public that, despite their Charter rights under sections 8 and 9 of the Charter, the police can ignore these and detain and arrest any driver. Thus, despite the minimal intrusiveness of the breath-testing procedures themselves, the second branch of Grant also weighs in favour of exclusion of the evidence.
55In this case, Mr. Gibson was arrested. He was handcuffed and taken to the police station. He was in police custody for approximately two hours and 20 minutes before he was released with a Promise to Appear.
56I conclude that the second branch of Grant also weighs in favour of inclusion of the evidence.
57As for the third factor, the offence is recognized to be a serious one. The societal interest in having a trial on the merits would usually favour admission here.
58I must also consider the fact that the evidence which Mr. Gibson seeks to have excluded is reliable. "Subject to other evidence in any given case, breath samples and their testing by ASDs and intoxilyzers are generally considered reliable evidence." The Intoxilyzer test results are certainly presumptively reliable by virtue of the Criminal Code provisions.
59I find then that the truth seeking function would be better served by the admission of the evidence than by its exclusion.
60As I stated above, I must balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.
61I must not give any one factor "an unjustified analytical pre-eminence" while doing this.
62I also note the comments of Fish J. in R. v. Morelli, where he stated "justice receives a black eye when it turns a blind eye to unconstitutional searches and seizures as a result of unacceptable police conduct or practices".
63In R. v. Beattie, Duncan J. stated:
Yet the focus must be long term, on the big picture. Viewed in that way, the balance shifts towards favouring exclusion in order to restore the intended public interest/individual liberties balance and underscore the limits of statutory powers that are permitted to encroach upon Charter rights. I conclude, after much anguished consideration, that the long term interests of the administration of justice are better served by exclusion in this case.
64In R. v. Mehta, Lipson J. wrote:
Yet it is also true that the overriding purpose of section 24(2) is to maintain the good repute of the administration of justice by both upholding the rule of law and Charter rights. The focus is both on the long-term and the prospective, not on the immediate reaction to admission or exclusion in a particular case. The purpose of section 24(2) is to further the long term interests of society and the justice system.
65I conclude that the long term interests of the administration of justice would better served by inclusion in this case.
66Accordingly, as I stated earlier I would not have excluded the breath results even if I had been satisfied that Constable Jameson infringed Mr. Gibson's rights.
67That then leaves the question of whether the tests occurred as soon as practicable.
As Soon as Practicable
68The presumption of identity, set out in section 258(1)(c)(ii) of the Criminal Code, provides that the results of breath tests are, in the absence of evidence to the contrary, deemed to represent the blood alcohol level of the accused at the time of driving.
69Before this presumption can apply, the Crown must establish beyond a reasonable doubt that a number of preconditions have been met. These include the requirement that two breath tests must be conducted using an approved instrument operated by a qualified technician. The first test must occur not later than two hours after the offence was alleged to have occurred. The second test must occur at least 15 minutes later and both tests must occur as soon as practicable.
70In that regard the Ontario Court of Appeal has stated clearly that "as soon as practicable" does not mean as soon as possible. It means that the tests must be taken within a reasonably prompt time.
71In deciding whether the tests are taken as soon as practicable I must look at the entire chain of events bearing 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 reasonably. The Crown is obligated to demonstrate that in all the circumstances the breath samples were taken within a reasonably prompt time, but there is no requirement that the Crown provide a detailed examination of what occurred during every minute that the accused is in custody.
72I must remember, however, that:
the "as soon as practicable" requirement in s. 258(1)(c)(ii) of the Criminal Code was enacted as a protection for accused persons which goes hand in hand with the presumption that the results of the breath tests are, in the absence of evidence to the contrary, deemed to represent the blood alcohol level of the accused at the time of driving. This presumption, often referred to as the presumption of identity, benefits the prosecution by eliminating the need to call additional evidence to relate the breath test results back to the time of driving. The as soon as practicable requirement assists in ensuring that the presumption operates fairly and leads to accurate results. Consequently, any delay impinges on a protection Parliament has enacted for the benefit of the accused.
73In this case, Mr. Gibson was stopped at or shortly after 3:13 a.m.
74Constable Jameson spoke with him, made an approved screening device demand, conducted an approved screening device test, arrested Mr. Gibson, made an Intoxilyzer demand, read him his rights to counsel and cautions within the following 8 minutes.
75He drove Mr. Gibson 32 kilometres to the Port Credit police station arriving at 3:48.
76The first breath test was completed at 4:17:25. It therefore occurred about 65 minutes after Mr. Gibson was stopped by Constable Jameson. The second test occurred more than 22 minutes later at 4:39:42.
77Mr. Gibson was released at 5:37 a.m. after being in police custody for two hours and 20 minutes.
78Counsel for Mr. Gibson argued that there was no explanation given for what happened between 3:48 when Mr. Gibson arrived at the police station and 4:03 when duty counsel called to speak to him.
79He argued further that there was no explanation given for what happened between 4:06 when the breath technician took custody of Mr. Gibson and 4:17 when the first breath test was completed.
80He then asked me to conclude that as a result the Crown had failed to prove that the tests were conducted as soon as practicable.
81I disagree.
82As I indicated earlier, the Ontario Court of Appeal has stated clearly that "as soon as practicable" does not mean as soon as possible. It means that the tests must be taken within a reasonably prompt time. The first test in this case was taken within 65 minutes which included the time it took to drive 32 kilometres to the police station. That is definitely a reasonably prompt time. Suggesting that the test might have been done even sooner does not change that fact.
83In any event, there was evidence of things that happened during the periods of time referred to by counsel. Constable Jameson said that Mr. Gibson was taken to a cell. His property was lodged. Constable Jameson called duty counsel. Then duty counsel called back. All of this occurred within the period which counsel described as "unexplained delay". I am satisfied that I heard ample explanation of what happened during that first 15 minutes following their arrival at the police station.
84With respect to the 11 minute period between when the breath technician took custody of Mr. Gibson and the time when the first test was conducted, I am prepared to take judicial notice of the fact that breath technicians routinely introduce themselves to the person before them, re-read a breath demand to him, ensure that he has spoken to counsel and is satisfied with the advice received, enters the necessary data into the Intoxilyzer, and explains the Intoxilyzer procedure.
85In that regard, I note that a court may properly take judicial notice of any fact or matter which is so generally known and accepted that it cannot reasonably be questioned, or any fact or matter which can readily be determined or verified by resort to sources whose accuracy cannot reasonably be questioned.
86Thorson J.A. stated further in R. v. Potts that:
there is the situation where the knowledge that the court has about a particular matter is knowledge of a kind which the court is required to apply repeatedly in the cases that come before it day by day. In R. v. Miller, the learned County Court judge, speaking of the procedures that are involved in taking samples of a person's breath for breathalyzer testing, concluded that, on the authorities he had reviewed"it is possible for a Court to take judicial notice of matters that are repeatedly before it" (p. 80 C.C.C.). While in principle this appears to make a good deal of sense, at least where the matters being noticed are not really disputed, it is nevertheless clear that a trial court is not justified in acting on its own personal knowledge of or familiarity with a particular matter, alone and without more.
87R. v. Vanderbruggen left open the issue of whether a trial judge can take judicial notice of the workings of the Intoxilyzer.
88In his summary conviction appeal decision in R. v. Price, Durno J. stated:
18 His Honour also considered other things that may have occurred during the 32 minute period, citing events that could occur in drinking and driving offence arrests after the accused arrives at the police station. Some of those events had to have occurred in this case such as moving about the station, booking, obtaining the waiver of counsel, entering the data into the Intoxilyzer, and explaining the Intoxilyzer procedure. I appreciate that no fixed times can be assigned to these events, but that is not what Vanderbruggen requires. See also: R. v. Tornsey.
19 In addition, I am not persuaded the trial judge erred in taking judicial notice of events that had to have occurred in this case. Trial judges routinely hear evidence of the procedures at the police station in drinking and driving cases: R. v. Potts; R. v. Miller; R. v. Mastromartino. There is no suggestion that those events did not occur in this case.
89In this case, I am satisfied that the 11 minutes referred to were used in a fashion such as I described above.
90In any event, even if the tests could have been conducted a few minutes earlier, I am satisfied that the Crown has proven beyond a reasonable doubt that they were conducted within a reasonably prompt time. They were, accordingly, conducted as soon as practicable.
91In reaching that conclusion, I did consider the cases cited by counsel for Mr. Gibson, but found that they all could be easily distinguished from the case before me.
92In light of the above, I am therefore satisfied that the Crown has proven beyond a reasonable doubt that Mr. Gibson was operating his motor vehicle when his blood alcohol concentration was 110 milligrams of alcohol in 100 millilitres of blood. I find him guilty of the offence charged and enter a conviction.
Released: November 23, 2016
Signed: "Justice D.A. Harris"