Court File and Parties
Court File No.: Kitchener info # 17-2164 Date: 2017-10-20 Ontario Court of Justice
Between: Her Majesty the Queen — and — Frederick Roblin
Before: Justice S.N. Latimer
Heard: October 16, 2017
Reasons for Judgment Released: October 20, 2017
Counsel:
- Aaron McMaster, counsel for the Crown
- Darwin Witmer, counsel for Frederick Roblin
Judgment
[1] Introduction
1Frederick Roblin (hereinafter "the applicant") stands charged that he drove a motor vehicle on the evening of March 22, 2017 while he had a blood alcohol concentration in excess of 80 milligrams of alcohol per 100 millilitres of blood. He has filed an application to exclude breath samples obtained during the police investigation on the basis that they were unreasonably seized. For the reasons that follow, I am granting his application and excluding the evidence.
[2] Statutory and Constitutional Framework
2Breath samples were obtained, on a warrantless basis, pursuant to section 254(3) of the Criminal Code, following the applicant's arrest for driving with excess blood alcohol. The Supreme Court of Canada, in Bernshaw, [1995] 1 S.C.R. 254 at para. 51, stated:
"The requirement in s. 254(3) that reasonable and probable grounds exist is not only a statutory but a constitutional requirement as a precondition to a lawful search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms."
3The applicant, through his counsel, challenges this precondition. He seeks exclusion on the basis that the officer did not have proper arrest grounds, therefore the applicant's breath was unconstitutionally obtained under section 8 of the Charter. The arrest is alleged to be unlawful because the officer's belief that the applicant was driving with excess blood alcohol in his system was unreasonable, as it relied upon the results of an approved screening device ("ASD") test that occurred thirteen minutes after the applicant had consumed alcohol. In the vernacular of impaired driving law, this is called the "mouth alcohol" issue. As Justice Ducharme comprehensively discussed in Au-Yeung, 2010 ONSC 2292 at para. 29:
The concern with the presence of residual mouth alcohol is that it may artificially raise the alcohol level shown by the ASD and thus cause a "false fail."
4In a criminal proceeding, where evidence is obtained via a warrantless search and/or seizure, the Crown bears the onus to show, on a balance of probabilities, that the search or seizure was reasonable: Wills (1992), 70 CCC (3d) 529 (Ont. C.A.) at 548; Haas (2005), 76 OR (3d) 737 (Ont. C.A.) at para. 31. To be reasonable, a search must be authorized by law, the authorizing law must be reasonable, and the search must be carried out in a reasonable manner: Collins, [1987] 1 S.C.R. 265 at 278; Shepherd, 2009 SCC 35 at para. 15. The Crown's onus in this case is to show, on a balance of probabilities, that the seizure of breath was carried out in a reasonable manner, i.e. that the police officer had the necessary "reasonable grounds to believe" to make the section 254(3) breath demand.
5"Reasonable grounds to believe" has both a subjective and an objective component. The subjective aspect is satisfied by an honest belief that an arrestee has driven while impaired or "over 80" within the preceding three hours: Bernshaw, supra at para. 48; Shepherd, supra at para. 17. The objective component requires a reasonable basis for that belief. The question is whether, on the whole of the evidence adduced, a reasonable person standing in the shoes of the officer would have believed that grounds existed for an arrest. This is the determinative issue in the present case.
II. The "Mouth Alcohol" Issue
6Section 254(2) of the Code permits an officer – during the investigative stage of an impaired driving inquiry, and upon developing a reasonable suspicion that a motorist has alcohol in his body – to require breath samples be provided into an ASD. Because the driver is being detained and denied his section 10 Charter rights, the officer is required to make the demand, and obtain a reliable sample, forthwith. The test's purpose is to determine, with accuracy, the presence and amount of alcohol in a driver's bloodstream, and to assist in determining whether an arrest for driving with excess blood alcohol is justified. This, of course, requires that the testing process be reliable, otherwise quarere what is the point of the exercise. This reality imports some flexibility into the forthwith requirement, which is otherwise quite rigid – a brief delay is acceptable if it is reasonably necessary to allow for the testing process to be properly conducted: see Bernshaw, supra at paragraphs 70-73.
7It is widely known that mouth alcohol may artificially raise an ASD test result: Einarson (2004), 70 O.R. (3d) 286 (C.A.) at para. 14. This is why police officers need to be alert for "credible evidence" of its presence during sobriety-related traffic stops: Bernshaw, supra para. 80. An officer is entitled to rely upon the accuracy of an ASD result absent such evidence.
8Justice Durno, in Mastromartino et al – an influential decision in this particular area of jurisprudence – wrote that it is "beyond dispute that the presence of mouth alcohol can effect the reliability of ASD tests…. The effects of mouth alcohol are so notorious that they should be judicially noticed when the issue arises": Mastromartino et al (2004), 70 O.R. (3d) 540 (S.C.J.) at paras. 32-33.
9As can be seen from the above, courts have historically permitted a brief delay at the roadside in circumstances where there is credible evidence of recent consumption in order to ensure that the alcohol has dissipated from the detainee's mouth and is not an impediment to the ASD's proper functioning. In this case, however, test results were obtained thirteen minutes after the applicant's stated last drink. The officer did not delay testing in response to receiving this information. What is at issue on this application is whether the resulting ASD readings, in the specific circumstances of this case, were nevertheless capable of providing reasonable and probable grounds to believe that a criminal offence had occurred and that a s. 254(3) Code breath demand was lawful.
A. Relevant Facts
10The Crown called a single witness on the application: Police Constable Paul Cabral, a qualified breath technician and a member of the Waterloo Regional Police Service for the past seventeen years. On March 22, 2017, he was part of a broader deployment of police resources across Waterloo Region, aimed at detecting potential impaired drivers. P.C. Cabral positioned his cruiser in a parking lot adjacent to St. Louis Bar and Grill, a licensed establishment in Waterloo. His intention was to conduct random sobriety checks of motorists leaving the restaurant. He began this observation at 8:07 p.m. At 8:51 p.m., the applicant's vehicle was pulled over after it was seen exiting the restaurant's parking lot onto Northfield Drive.
11The applicant was alone in his vehicle, a Chevy Equinox. He had no difficulty pulling over at the police direction. Standard requests for documentation were made by P.C. Cabral. During the interaction, Cabral noted an "evident" odour of alcohol relatively quickly; he described it as being more apparent the longer they spoke. He asked how long the applicant had been at the bar, and was told about an hour. He then asked if he had consumed alcohol, and received a response that the applicant had drank one beer, five minutes previous. The officer was suspicious of this statement, as it did not accord with his understanding of how people act in bars or restaurants – people generally do not abstain in such locations, only to then consume alcohol in a short period of time before leaving.
12On the basis of the applicant's answers, P.C. Cabral formed a suspicion that he was operating a motor vehicle with alcohol in his body. This suspicion was formed at approximately 8:54 or 8:55 p.m. The officer was in possession of an approved screening device and, after turning it on and conducting various tests, administered the device to the applicant. A "fail" result was obtained at 8:59 p.m., eight minutes after the initial traffic stop. P.C. Cabral testified that the device can provide three possible results – pass, alert, or fail – and that a fail indicates an amount in the test subject's bloodstream in excess of 80 milligrams of alcohol in 100 millilitres of blood. On the basis of the fail result, an arrest occurred and a s. 254(3) breath demand was made.
13P.C. Cabral is trained as a qualified breath technician. He has significant experience in drinking and driving investigations generally, and specific training with regard to ASDs. Part of his responsibilities as a breath technician include ensuring the devices used by officers on patrol are properly calibrated. He has received yearly training with regard to the proper use of an ASD, including steps to ensure that a reliable sample is obtained.
14The officer testified, both in chief and in cross-examination, about his knowledge of mouth alcohol in the context of ASD testing. In chief, he said that if alcohol is consumed five to ten minutes before testing, it may have an impact on an ASD test administered during that same time period. He further indicated that he believed an officer should wait ten to fifteen minutes if he has a concern regarding mouth alcohol, although he characterized the waiting period as a "guideline" only.
15The officer's testimony regarding the applicant's utterance – that he had just drank five minutes before the traffic stop – was somewhat inconsistent between chief and cross-examination. In chief, he advised that he did briefly turn his mind to mouth alcohol, but because of the relative strength of the odour of alcohol he did not believe that the applicant had drank only one beer five minutes prior. He therefore had no concern that the test he was administering at 8:59 p.m. – thirteen minutes after the stated time of drinking – would be anything but reliable.
16In cross-examination, however, he agreed that it was possible that the applicant had consumed alcohol five minutes before the traffic stop. His principal difficulty with the applicant's utterance was not the timing of consumption, but the quantity. He believed the applicant would have drank more but, critically for present purposes, he agreed on multiple occasions that the applicant could have recently drank alcohol, as stated, five minutes before the traffic stop. While this would mean that he was administering a test thirteen minutes after the subject had potentially consumed alcohol, and was aware that mouth alcohol could generate a false fail, P.C. Cabral indicated that he was nonetheless confident that the obtained sample was reliable. He indicated that, in his mind, a fifteen minute delay is a recommendation only, a "soft decision", not a "necessity or a hard and fast rule".
17Finally, P.C. Cabral also testified that an ASD does not have the capacity, unlike other approved instruments, to provide an error message if the device detects mouth alcohol. He agreed with the suggestion that the protection against an unreliable sample has to come from the individual officer's training and subjective assessment of the current circumstances.
B. Analysis
18To summarize the officer's evidence, he was told during a sobriety check that his detainee had consumed alcohol five minutes prior. I find he did not reject the timing aspect of the utterance so much as he did the portion relating to the amount of alcohol consumed. He continually agreed during cross-examination that he averted to the live possibility that the applicant, who had just left a licensed establishment during serving hours, and who told him he had just drank five minutes prior, had in fact very recently consumed alcohol. P.C. Cabral's testimony was that he tested the applicant immediately not because he rejected the drinking pattern, but because he viewed fifteen minutes as a recommendation, not a necessity or a hard and fast rule. He believed that the ASD result obtained – a "fail" – was reliable. While I accept that he honestly believed this, I find that his belief was not reasonable in all of the circumstances.
19A reasonable officer, standing in P.C. Cabral's shoes, having not rejected the "credible evidence" of very recent alcohol consumption, would not have relied upon the accuracy of the ASD test result in the circumstances: Bernshaw, supra at para. 80. A reasonable officer would have been aware of the notorious effect of mouth alcohol on ASD test results, and would have known that it was necessary to wait fifteen to twenty minutes after consumption to ensure a reliable sample, one that could either further a criminal investigation or permit a detainee to be swiftly on his way, as envisioned by the section 254(2) Code provision: Mastromartino et al, supra at paras. 32-33; Einarson, supra at para. 14.
20The Crown bears the burden of proving that the applicant's arrest was based on reasonable and probable grounds. I find they have failed in the attempt – while the officer honestly believed he had grounds based on the "fail", in the circumstances that belief was unreasonable. The statutory and constitutional underpinnings of the s. 254(3) demand are absent. The breath samples obtained at the police station were unreasonably seized. A section 8 violation is established.
III. Subjective Grounds and "Magic Words"
21A related s. 8 issue arose during the course of the application, with regard to subjective grounds. Upon receiving the "fail" result from the ASD, P.C. Cabral testified that his "suspicion had been confirmed that the applicant was operating a motor vehicle while impaired by alcohol"; i.e. 253(1)(a), not 253(1)(b). The officer further testified, when asked about what information he provided to the breath technician back at the police station, that he explained his "suspicions".
22The position of the Crown is that the officer misspoke when he used the term "suspicion", misspoke again when he identified the impaired driving s. 253(1)(a) offence, and that the surrounding circumstantial evidence should satisfy me that he subjectively believed that the applicant was operating a motor vehicle with excess blood alcohol, contrary to s. 253(1)(b) of the Code. This is, of course, the offence the applicant was charged with and is currently being prosecuted for.
23I must confess initial scepticism with the Crown's argument. However, after hearing Mr. McMaster's careful, considered submissions in this regard, citing Justice Durno's summary conviction appeal decision in Clarke (2000), 1 M.V.R. (4th) 298 (Ont. S.C.J.) and Justice Stribopoulos' judgment in Biscan, 2014 ONCJ 593, I am ultimately satisfied that the language chosen by the officer did not invalidate his subjective basis for the applicant's arrest.
24Justice Durno, in Clarke, instructs that "a court [can] infer from circumstantial evidence the officer had the requisite belief without having said the 'magic words'" (para. 13). The circumstantial evidence before me includes an experienced officer investigating a drinking and driving offence through use of an approved screening device. P.C. Cabral testified that he believed that a "fail" result demonstrated that the applicant's bloodstream contained in excess of 80 milligrams of alcohol per 100 millilitres of blood. Leaving aside an additional likely misstatement – these devices provide a "fail" result at 100 mg – I accept that this investigative avenue was exclusively aimed at a s. 253(1)(b) offence. Further, I accept Mr. McMaster's submission that the officer's testimony that his suspicion was "confirmed" meant that he has escalated his suspicion to something more concrete, like a belief. In the circumstances I am satisfied, on a balance of probabilities, that the officer honestly believed that he had evidence capable of justifying an arrest for driving with excess blood alcohol, his choice of language notwithstanding. Of course, for the reasons already indicated, that belief was unreasonable given the clear and present danger mouth alcohol posed to the ASD test procedure.
IV. Section 24(2)
25The test for exclusion of evidence under s. 24(2) of the Charter was described by the Supreme Court in Grant (2009), 2009 SCC 32 , 245 C.C.C. (3d) 1. The relevant evidence is assessed during a three-part analysis, which assists in focusing the balancing of interests that must ultimately occur:
- The seriousness of the Charter-infringing state conduct;
- The impact of the breach on the Charter-protected interests of the accused;
- Society's interest in an adjudication on the merits.
26A helpful method of gauging the significance of Charter-infringing conduct is to determine where it falls on a spectrum of seriousness, with "inadvertent or minor violations" at one end and a blatant or brazen disregard for Charter-protected interests at the other: Grant, supra; Kitaitchik (2002), 166 C.C.C. (3d) 14 (Ont. C.A.); Harrison, 2009 SCC 34 , [2009] 2 S.C.R. 494 at paras. 23, 39. There is no suggestion here, nor could there be, that P.C. Cabral intentionally sought to violate the applicant's rights. In fact, I found him to be, in many other respects, professional and reasonable, both in court and during his interaction with the applicant. An example would be his evidence with regard to the applicant's fumbling of documents at the roadside. While this did occur, and is often characterized as an indicia of impairment, P.C. Cabral testified that he believed the license had been stuck on a plastic portion of the wallet, and did not consider this fumbling as part of his grounds. Such fairness is to be commended. I hope this judgment will be read as it is intended – not to identify general or wide-scale deficiencies on the part of P.C. Cabral, but instead a failing in one particular area that, in the circumstances of this case, amounted to a serious violation of the Charter.
27Mr. McMaster, on behalf of the Crown, asks me to find that the violation occurred in good faith. While I do not find any bad faith on the part of the officer, good faith is more than just the absence of bad. In Grant at para. 75, the majority opinion states:
Good faith on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith.
28In Au-Yeung at para. 55, Ducharme J. writes:
The reputation of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct. Police officers who stop and detain motorists in order to perform ASD tests must execute their duties efficiently, competently and accurately. There is no question that the need to combat drinking and driving is a pressing social concern. The public therefore accepts the use of breath samples both for roadside screening and ultimately for the determination of blood alcohol levels. Nonetheless, the administration of justice would inevitably fall into disrepute if such shoddy police conduct were permitted to form the basis for the arrest, detention, and subsequent testing of drivers. As Sopinka J. observed in Bernshaw at para. 74: Although we all agree that Parliament has every reason to vigorously pursue the objective of reducing the carnage on our highways, that objective is not advanced by subjecting innocent persons to invasions of privacy on the basis of faulty tests. I do not believe that this is what Parliament intended in enacting s. 254 of the Criminal Code.
29Police conduct being assessed under the rubric of the "mouth alcohol" issue can fall at different places on the spectrum. In some circumstances, a violation can properly be described as "minimal": See Su, 2014 ONSC 5296, aff'd 2016 ONCA 58. In others, it is considered a "serious breach": Avila, 2010 ONCJ 512; Leonardo (2009), 2009 ONCJ 507 , 89 M.V.R. (5th) 289 (Ont. C.J.). In the present case, I consider the officer's conduct sufficiently serious that this branch of the s. 24(2) test points towards exclusion. The issue is not a lack of training or awareness. The officer was aware of the issue and aware of the warning signs – an admission of recent consumption and a detainee who had just left a bar. In the face of this information, he knowingly compelled a breath sample within thirteen minutes. He did so because he viewed past judicial admonitions as recommendations only. His evidence on this point had the distinct sense of 'close enough' when it came to the thirteen minutes he waited. He knew at least fifteen minutes was required, but he still compelled the test at thirteen. His decision risked an unreliable result in an investigative process designed to provide sound footing for increasingly coercive police conduct. In other words, his assessment of the basis to invoke his statutory power was founded on recklessness, not reason.
30Further, in my view, the serious nature of this conduct is aggravated by the fact that, for many people, ASD results have profound implications. Part of the evidence before me is that individuals who register a "warn" or "alert" result lose their license for a minimum of three days pursuant to provincial legislation: See Highway Traffic Act (Ontario), section 48(14). The same fate befalls arrestees who blow a "fail" at the roadside but pass the Intoxilyzer test at the police station. An erroneous ASD result has a significant impact on these citizens, who have no right of appeal in the circumstances. Harkening back to Sopinka J.'s words in Bernshaw"subjecting innocent persons to invasions of privacy on the basis of faulty tests" cannot be condoned. The impact of the Charter-infringing conduct on a broader segment of the public is a relevant consideration at this stage of the s. 24(2) analysis: see A.M., 2008 SCC 19 , [2008] 1 S.C.R. 569 at para. 97; Mahmood (2008), 236 C.C.C. (3d) 3 (Ont. S.C.J.) at para. 117; Au-Yeung, supra at 54-55.
31With regard to the impact of the breach on the applicant's Charter-protected interests, I am aware of the Grant court's criticism of the prior s. 24(2) tendency, under Collins, to automatically exclude breath sample evidence, even in circumstances where the breach was technical and the conduct not particularly significant: Grant, supra at paras. 104, 111.
32At paragraph 111 of the majority opinion in Grant, Justice Charron and Chief Justice McLachlin instruct trial courts as follows:
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.
33In the present case, I accept that the applicant was unlawfully arrested and compelled, contrary to statute, to provide two breath samples that registered truncated readings of 130 and 120 milligrams of alcohol in 100 millilitres of blood, respectively. While these readings support the ASD results on an ex post facto basis, the applicant's arrest, detention and conscription were nevertheless unlawful. Given the statements in Grant regarding the reduced privacy interest inherent in breath sample evidence, I find that this factor points modestly towards exclusion.
34The final part of the test focuses on society's interest in criminal allegations being adjudicated on their merits. This is, after all, the criminal courts' raison d'etre. Breath samples are highly reliable evidence; the devices used are approved by Parliament and subject to rigorous screening, maintenance and re-calibration. The readings are necessary evidence in an excess blood alcohol prosecution – a crime that extracts a tragic toll on Canadian families and our community at large. The Supreme Court of Canada recently reminded us of the continuing social cost of drunk driving in the first paragraph of Alex, 2017 SCC 37:
Each year, drunk drivers cause tremendous suffering and loss of life on Canada's roadways. Tragically, drinking and driving offences remain one of the most common crimes in Canada — and they place a substantial burden on the criminal justice system.
35For these reasons, I find this factor weighs in favour of admission.
36Having assessed and balanced the various interests and factors through the lens of this three-part test, I conclude that the applicant has satisfied me that admission of the breath samples, in the circumstances of this case, would bring the administration of justice into disrepute. The first two factors point towards exclusion, the first particularly so. Justice Doherty, writing for the Court of Appeal in McGuffie (2016), 2016 ONCA 365 , 336 C.C.C. (3d) 486 (Ont. C.A.), stated at para. 63:
In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence: [citations omitted]. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility.
37In this case, society's immediate interest in an adjudication on the merits must yield to its long-term interest in ensuring that "shoddy police conduct [is not] permitted to form the basis for the arrest, detention and subsequent testing of drivers" (Au-Yeung, supra at para. 55), and that innocent persons are not subjected to invasions of privacy, license suspension, and loss of liberty on the basis of faulty testing procedures (Bernshaw, supra at para. 74).
38The breath samples are excluded from evidence.
Released: October 20, 2017
Signed: Justice S.N. Latimer