Court of Appeal for Ontario

Date: 2018-06-26

Docket: C64995

Judges: Hourigan, Pardu and Nordheimer JJ.A.

Parties

Between

Her Majesty the Queen Appellant

and

Jordan Gardner Respondent

Counsel

Jennifer Epstein, for the appellant

Karen Seeley, for the respondent

Hearing

Heard: June 22, 2018

Background

On appeal from the decision dated August 30, 2017 by Justice F. Bruce Fitzpatrick of the Superior Court of Justice sitting as a Summary Convictions Appeal Court, with reasons reported at 2017 ONSC 5175, dismissing an appeal from the acquittal entered on October 17, 2016 by Justice Jennifer R. Hoshizaki of the Ontario Court of Justice.

Decision

Nordheimer J.A.:

[1] Introduction

[1] The Crown appeals, with leave,[1] from the decision of the Summary Conviction Appeal Judge ("SCAJ") that dismissed the Crown's appeal from an acquittal on a charge of driving with more than 80 mg of alcohol in 100 ml of blood contrary to s. 253(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46. At the conclusion of the hearing before this court, we allowed the appeal with reasons to follow. I now provide those reasons.

[2] In summary, both the SCAJ and the trial judge erred in finding that the respondent's Charter rights had been breached, and thus further erred in excluding both the breathalyser readings and the respondent's statements made at the time of the police stop from the evidence.

Background Facts

[3] On December 12, 2015, at approximately 11:25 p.m., Constable Lieverse of the Treaty Three Police[2] received a call that a specific individual was suspected to be impaired and driving a green pickup truck in the Wabigoon Lake First Nation community. Constable Lieverse arrived in the Wabigoon Lake community approximately 20 minutes after receiving the call. Constable Lieverse first attended the residence of this individual but the individual was not home.

[4] Constable Lieverse left the residence and drove along Main Road. Constable Lieverse observed an oncoming motor vehicle. Because it was dark, and the road had no street lighting, Constable Lieverse could only see the headlights as the vehicle approached. It appeared to Constable Lieverse to be a pickup truck. Constable Lieverse's activated his emergency lights and stopped his cruiser. Constable Lieverse stepped out onto the roadway and flagged the vehicle to stop. The vehicle stopped. Constable Lieverse gave evidence that he could not tell what colour the truck was as it approached. In cross-examination, Constable Lieverse said he would not have been able to tell what colour the motor vehicle was until it passed him.

[5] The motor vehicle that Constable Lieverse stopped was a pickup truck but it was a red pickup truck, not a green one. The red pickup was being driven by the respondent.

[6] Constable Lieverse approached the driver's side of the vehicle and asked the respondent to roll down his window and identify himself. Constable Lieverse advised the respondent that he was looking for an impaired driver. Constable Lieverse could smell the odour of alcohol emanating from the vehicle. He asked the respondent if he had been drinking. The respondent responded that he had. Constable Lieverse asked the respondent to step out of the motor vehicle because there were other persons in the vehicle and he wanted to isolate the respondent from the others in order to determine the source of the alcohol smell. Once outside the vehicle, Constable Lieverse could smell alcohol on the respondent's breath. As a result of that fact, and an admission by the respondent that he had been drinking, Constable Lieverse made a demand for a roadside breath sample from the respondent.

[7] Constable Lieverse asked the respondent when he consumed his last drink. The respondent advised that his last drink had been only several minutes earlier. As a consequence, Constable Lieverse elected to wait 15 minutes before administering the breath test in order to eliminate the effects of any residual mouth alcohol. Thereafter, the respondent provided the breath sample. The Approved Screening Device registered a "Fail". Constable Lieverse said that he then formed reasonable grounds to believe that the respondent was driving "over 80".

[8] Constable Lieverse arrested the respondent. He then, and for the first time, gave the respondent his rights to counsel. He also gave the respondent the standard caution about his right to remain silent and he read the standard breath demand. Constable Lieverse took the respondent to a police station to administer a breathalyser test. Prior to administering the test, Constable Lieverse asked the respondent if he wished to speak to counsel. The respondent declined. Constable Lieverse reiterated the rights to counsel and the respondent again waived his rights. Two breathalyser tests were then administered. The readings from those tests at 1:31 a.m. and 1:54 a.m. were 110 and 107 mg of alcohol in 100 ml of blood, respectively.

The Trial

[9] At trial, the respondent alleged that his rights under ss. 8, 9, 10(a), and 10(b) of the Charter had been violated. The respondent asserted that his rights under s. 9 were breached because the police did not have any right to stop his vehicle. This assertion arose from the respondent's companion assertion that the police were engaged in a criminal investigation relating to a specific individual and, since the respondent was not that individual, the police could not rely on authority, under the Highway Traffic Act, R.S.O. 1990, c. H.8, to stop him.

[10] From these assertions, the respondent said that it followed that, when the police did stop him, they were engaged in an investigative detention and that the respondent ought to have been given his rights to counsel from the moment of the stop. The respondent also argued that his s. 8 rights were breached, as Constable Lieverse did not have reasonable and probable grounds to make the breath demand, and his s. 10(a) rights were breached as the Constable Lieverse failed to promptly inform him of the proper reason for his detention.

[11] The trial judge accepted the respondent's position. She found that the respondent's ss. 8, 9, and 10 Charter rights were breached. The trial judge then determined that the breathalyser and contemporaneous statements evidence should be excluded pursuant to s. 24(2) of the Charter. As such, the respondent was acquitted.

[12] In reaching her decision, the trial judge concluded that the respondent was detained for a purpose under the Criminal Code, and not pursuant to the Highway Traffic Act. She therefore found that Mr. Gardner was arbitrarily detained. The trial judge found that the respondent should have been informed of his rights to counsel immediately upon his detention. The trial judge did not provide specific reasons for her conclusion that there had been a breach of s. 10(a). Rather, she only addressed the s. 10(b) issue. The trial judge also found that Constable Lieverse breached the respondent's s. 8 Charter rights because he did not have grounds to stop the respondent's vehicle.

The Summary Conviction Appeal

[13] The Crown appealed to the Superior Court of Justice. The Crown asserted that the trial judge had made two errors of law by:

i. finding that the police were not permitted to detain the respondent either under the Highway Traffic Act or at common law; and

ii. finding that there had been a breach of the respondent's rights under s. 10(a) of the Charter.

[14] The SCAJ dismissed the appeal. He concluded that the trial judge had made a "finding of fact" that the stop resulted in an investigative detention and that this finding was open to the trial judge on the evidence. The SCAJ concluded that the police's powers to stop a vehicle under the Highway Traffic Act did not apply to the instant case.

[15] In reaching his conclusion, the SCAJ said, at para. 49:

In my view, the findings of the trial judge are ones that could have been reasonably reached. The decision was supported by the evidence. The decision is not clearly wrong in law. Further, I find the decision to be reasonable in light of the findings of fact. In my view, the acquittal in this case did not constitute a miscarriage of justice.

Issues on Appeal

[16] The Crown identified three issues in its motion for leave to appeal. They are:

(i) whether the SCAJ erred by applying the wrong standard of review;

(ii) whether the SCAJ erred in law by failing to find that the trial judge's conclusion, that the respondent was detained, was an error of law; and

(iii) whether the SCAJ erred in law by failing to find that the trial judge's conclusions regarding the Charter breaches were errors of law?

Analysis

[17] I agree with the Crown that the SCAJ applied the wrong standard of review because he mischaracterized the trial judge's conclusions as findings of fact when they were actually conclusions of law. The appropriate standard of review was therefore correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8 and 36.

[18] The central issue in this appeal is the proper characterization of the nature of the stop. The trial judge concluded that Constable Lieverse was engaged in a criminal investigation and thus could not rely on the authority given to him by the Highway Traffic Act to stop the respondent's vehicle to check on the sobriety of the driver. Section 48(1) of the Highway Traffic Act reads:

A police officer, readily identifiable as such, may require the driver of a motor vehicle to stop for the purpose of determining whether or not there is evidence to justify making a demand under section 254 of the Criminal Code (Canada).

[19] The purpose for which Constable Lieverse stopped the respondent's vehicle was to determine if the driver of the vehicle was impaired. The fact that Constable Lieverse stopped a vehicle, that was not the same vehicle for which he had a report of possible impaired driving, does not change the reason for the stop. The fact that Constable Lieverse fortuitously discovered another impaired driver is irrelevant to the legal analysis. Constable Lieverse had reason to believe that a person was operating a pickup truck while impaired. This informed Constable Lieverse's decision to stop the respondent's pickup truck to determine if the driver of the pickup truck was impaired. He had the authority to do so under s. 48(1) of the Highway Traffic Act.

[20] The trial judge erred in law in finding that the actions of Constable Lieverse constituted only an investigative detention that did not include a traffic stop for highway safety purposes under the Highway Traffic Act. This error led, in turn, to the trial judge's erroneous conclusion that stopping the respondent's vehicle constituted a breach of the respondent's s. 9 Charter rights.

[21] Police officers have the right to stop a vehicle for the purpose of checking on the sobriety of the driver. This is a power that the police have both at common law and through statutes such as the Highway Traffic Act: R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3, at para. 41.

[22] The actions of the police in stopping a vehicle under their authority at common law or by statute only constitutes an unconstitutional stop if the reason for the stop is unconnected to a highway safety purpose. That is what distinguishes this case from cases such as R. v. Simpson (1993), 12 O.R. (3d) 182 (C.A.), 79 C.C.C. (3d) 482. In that case, Doherty J.A. made this very point, at p. 491:

In Dedman, supra, at pp. 119-22, the court held that the common law ancillary police power justified random stops of vehicles in the course of the enforcement of laws relating to the operation of those vehicles. This power to stop was, however, closely tied to the particular purpose of the stops, the dangers presented by the activity targeted by the stops, the qualified nature of the liberty interfered with by the stops, and the absence of other less intrusive means of effective enforcement of the relevant laws. The authority to stop described in Dedman was clearly not a general power to stop for all police purposes, but was limited to stops made in furtherance of the police duty to protect those who use the public roadways from those who use those roadways in a dangerous manner.

[23] If the police stop a motorist for a criminal investigation unrelated to highway safety, then they must have an articulable cause for the stop. In Simpson, the police were investigating drug activity, not highway safety. That is the reason that this court found a Charter breach, excluded the evidence, quashed the conviction, and entered an acquittal in that case.

[24] This same distinction applies to one of the cases relied upon by the trial judge, namely, R. v. Lacoste, 2014 ONSC 7481. In Lacoste, para. 31, the trial judge found that the police stop was not made pursuant to their authority under the Highway Traffic Act. Indeed, the police did not suggest it was. Rather, the police were searching for someone who had stolen gas and stopped the vehicle in furtherance of that investigation. It again had nothing to do with highway safety.

[25] Had the trial judge correctly characterized the reason underlying the stop of the respondent's vehicle, she would have concluded that it was not an investigative detention that would invoke s. 9 of the Charter and there was no breach of the respondent's rights under ss. 10(a) or 10(b). I note, in passing, that this court, unfortunately, did not have the benefit of any reasons from the trial judge respecting the alleged s. 10(a) breach. The SCAJ acknowledged the lack of reasons underlying the trial judge's conclusion on this issue but said, at para. 45, that "the basis for the conclusion is otherwise apparent from the record." Unfortunately, the SCAJ did not go on to identify what portions of the record made those conclusions apparent.

[26] What I see as apparent from the record is that almost immediately upon stopping the respondent's vehicle, Constable Lieverse advised the respondent that he was looking for an impaired driver. He then proceeded to ask questions of the respondent that were directly related to that purpose. There cannot have been any doubt in the respondent's mind as to why his vehicle was stopped. Consequently, there is no basis for a finding that either the temporal or informational elements of the respondent's s. 10(a) rights were breached: R. v. Roberts, 2018 ONCA 411, at para. 63.

[27] There was a delay in advising the respondent of his rights to counsel under s. 10(b), but that delay was in order to determine whether there was a reasonable grounds to believe that the respondent was impaired, such as to warrant a roadside breath demand through an Approved Screening Device. The Supreme Court of Canada confirmed in R. v. Orbanski; R. v. Elias, at para. 52 that giving rights to counsel can be delayed during the time required to implement a roadside breath demand. In this case, once the respondent failed the roadside test, he was immediately advised of his rights to counsel. The SCAJ erred in upholding the trial judge's conclusion that the respondent's s. 10(b) rights had been violated again, apparently, on the basis that is was a finding of fact entitled to deference. It was not.

[28] Finally, the trial judge's finding that there was a breach of the respondent's s. 8 Charter rights to be free from unreasonable search and seizure flowed from her erroneous conclusion that there had been a breach of the respondent's s. 9 rights resulting from an arbitrary detention. I have already said that there was no arbitrary detention. Both the roadside demand and the subsequent breathalyser test are expressly authorized by the Criminal Code and were properly implemented in this case. Once Constable Lieverse smelled alcohol on the respondent's breath, he was entitled to administer a roadside test. When the respondent failed that roadside test, Constable Lieverse was entitled to arrest the respondent and conduct a breathalyser test: see, e.g., this court's most recent review of these principles in R. v. Notaro, 2018 ONCA 449, at paras. 34-44. Neither of these tests involved any breach of the respondent's s. 8 Charter rights.

[29] The SCAJ compounded the errors below by simply deferring to the trial judge's finding that there had been an arbitrary detention instead of reviewing her conclusions for correctness in law.

[30] In the end result, each of the trial judge's findings of Charter breaches was erroneous because of her legally incorrect conclusion regarding Constable Lieverse's reason for stopping the respondent's vehicle. The trial judge therefore erred in excluding the breathalyser evidence and the respondent's statements.

[31] As a result, this court must determine the appropriate remedy. Section 686(4)(b)(ii) of the Criminal Code authorizes a court of appeal in indictable appeals to enter a verdict of guilty on an appeal from an acquittal.[3] This court is entitled to enter a finding of guilt in respect of the index offence where this court concludes that the respondent should have been found guilty, but for the error of law committed by the trial judge: R. v. Labadie, 2011 ONCA 227, 105 O.R. (3d) 98, at para. 61. In this case, the respondent fairly conceded that, if the breathalyser results and the statements were not excluded under s. 24(2) of the Charter, there was sufficient evidence to convict the respondent of driving "over 80".

Conclusion

[32] It is for these reasons that the appeal was allowed. The decision of the SCAJ, and the acquittal entered by the trial judge, are both set aside. In its place, I would enter a conviction. I would remit the matter back to the Ontario Court of Justice for sentencing.

Released: June 26, 2018

"I.V.B. Nordheimer J.A."

"I agree. C.W. Hourigan J.A."

"I agree. G. Pardu J.A."

Footnotes

[1] Leave to appeal was granted by endorsement dated February 16, 2018 (Docket M48393).

[2] The Treaty Three Police Service is a First Nation self-administered police service. Members of the Treaty Three Police Service are appointed as First Nations Constables by the Commissioner of the OPP pursuant to s. 54 of the Police Services Act, R.S.O. 1990, c. P.15.

[3] By virtue of s. 839(2) of the Criminal Code, the powers of the court of appeal under s. 686(4)(b)(ii) apply to summary conviction appeal matters.