R. v. Juan Perez-Hurtado, 2016 ONSC 4220
Court File No.: AP-15-5122 Date: 2016-07-11
Ontario Superior Court of Justice Summary Conviction Appeal Court
Between:
Her Majesty The Queen B. Bentham for the Crown Respondent
- and -
Juan Perez-Hurtado S. Bernstein, for the Appellant Appellant
Heard: June 24, 2016
Before: A.J. Goodman J.
Reasons for Judgment (On appeal from the Honourable Justice Takach)
[1] This is an appeal against conviction imposed on September 16, 2015 by Takach J. of the Ontario Court of Justice at Hamilton, Ontario.
[2] The appellant essentially raises two grounds of appeal. Principally, did the officer have reasonable suspicion to make a formal demand pursuant to s. 254(2) of the Criminal Code (“the Code”)? Did the appellant have a reasonable excuse by virtue of a mistake in law?
The Evidence at Trial
[3] The appellant was stopped at 1:10 a.m. on December 4, 2014 during a R.I.D.E. spot check program. The stop occurred on the QEW northbound ramp from Centennial Parkway in the City of Hamilton. Constable (Cst.) Marie Bryan of the Ontario Provincial Police observed a grey Toyota driven by a male, later identified as the appellant. The appellant had three other occupants with him in the vehicle.
[4] Cst. Bryan smelled alcohol emitting from the car. She suspected that the appellant had alcohol in his body and asked him to accompany him to her cruiser for an Approved Screening Device (“ASD”) test.
[5] Cst. Bryan requested that the appellant accompany her back to the police cruiser. He complied. While outside of the car, the officer conceded that she could not detect any odour of alcohol emanating from the appellant’s breath. The officer testified that she took the appellant to the cruiser immediately.
[6] Cst. Bryan smelled an odour of alcohol on the appellant’s breath while speaking with him in the cruiser, “a very short time later”. This was confirmed by Cst. Hulsman. Cst. Bryan read the appellant an ASD demand when they both got in the cruiser.
[7] After demonstrating and explaining how to perform the breath test, Cst. Bryan explained the consequences of failing or refusing to provide a breath sample. She explained that the appellant’s driver’s licence would be suspended for 90 days, his motor vehicle would be impounded for seven days, he would have a criminal record, his fingerprints and photographs would be taken; he’d have to pay for a lawyer and go to court. She testified that failure to provide the sample would entail the same penalty as an impaired or over 80 would be imposed on him upon conviction. The appellant disagrees with what he was advised by the officer with respect to the consequences surrounding the licence suspension.
[8] The appellant indicated to Cst. Bryan that he wished to speak to a lawyer and his mother before taking the test. He was advised that he had to take the test forthwith.
[9] After explaining the consequences of refusing a breath demand and again demanding a breath sample, the Appellant unequivocally refused to provide a sample. This second breath demand and refusal occurred at 1:20 a.m.
Positions of the Parties
[10] The appellant submits that the learned trial Judge erred in finding that Cst. Bryan had any basis for a reasonable suspicion that the appellant had alcohol in his body when the demand was made. There was no basis in law for the officer to form a reasonable suspicion prior to the making of the demand.
[11] The appellant submits that the officer in question failed to demonstrate the reasonable suspicion required to justify a breath sample demand under s. 254(2) of the Code. Section 254(2) requires that an officer must “reasonably suspect” that a person has alcohol in his body before making a demand that a person provide a sample of breath into an approved screening device.
[12] The appellant adds that the demand took place prior to the appellant situated in the back of the cruiser. Therefore, the demand took place prior to Cst. Bryan smelling any alcohol from the appellant’s breath. There were no other indicia apart from the smell of alcohol from the vehicle.
[13] The respondent Crown submits that the police officer had reasonable suspicion and that there is no merit in fact and law to this appeal.
Analysis
[14] When considering unreasonable verdict or an error in an overall assessment of the evidence, an appellate court is not entitled to re-try the case and substitute its view of the evidence. Rather, the court must thoroughly re-examine and to an extent at least, re-weigh and consider the effect of the evidence: R. v. W.(R.), [1992] 2 S.C.R. 122. The question is not whether the evidence is capable of raising a reasonable doubt or whether another judge might have acquitted the appellant. The question is whether the verdict was one that a properly instructed jury or judge acting reasonably could have reached: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, R. v. Yebes, [1987] 2 S.C.R. 168.
[15] An appeal court ought to afford deference to findings of fact made by a trial judge who has had the opportunity to see the witnesses and assess their credibility. An appellate review takes the facts as found by the trial judge and upon a limited review can reject those findings only where it can be shown that the trial judge committed a palpable and overriding error, or made findings of fact that are clearly wrong, unreasonable and unsupported by the evidence.
[16] There is no dispute about the overall facts in this case, save the information provided to the appellant about the potential licence suspension for failing to provide a sample.
Application of the Legal Principles to this Case
Reasonable Suspicion
[17] Before an ASD demand can be made, s. 254(2) of the Code requires that a police officer have reasonable grounds to suspect that a person has alcohol in their body. A smell of alcohol emanating from the accused’s breath, standing alone, can give rise to a reasonable suspicion that the accused has alcohol in his or her body: R. v. Lindsay, [1999] O.J. No. 870 (Ont. C.A.) at para 2.
[18] The reasonable suspicion standard is determined on the totality of the circumstances, based on objectively discernible facts. The standard is subject to independent and rigorous judicial scrutiny, which prevents its indiscriminate and discriminatory use by police.
[19] The appellant relies, in part, on the case of R. v. Hendel, [1997] O.J. No. 2849, (Gen Div.). In that case, the appeal judge found that the Crown had not proved proper grounds for a demand from a driver with bloodshot eyes, and a smell of alcohol on his breath. Ultimately, Jennings J. ruled that Parliament required “more than a smell test” to establish reasonable suspicion… “The smell of alcohol may very well lead to a reasonable suspicion of the presence of alcohol in the body, but in this case, this officer, on these unique facts, never engaged in that exercise. As he said, the appellant may have put alcohol in his mouth and spit it out. He did not think further on the subject and thereby he denied himself the opportunity to form a reasonable suspicion of the present of alcohol.” It is clear from my review of the transcript that the facts in Hendel are distinguishable from the evidence presented in this case.
[20] It is true that unless a court has the facts to infer that the source of alcohol smell emanating from an accused vehicle was from the accused, the smell of alcohol is not a factor to be taken into account in determining the objective reasonableness of the police officer’s suspicion.
[21] In R. v. Mason, [2013] O.J. No. 2822 (Ont. Ct.), Duncan J. explained at para 12: A smell of alcohol coming from a confined space that includes the driver could be attributable to the passenger (or spilled alcohol, or an open bottle) does not deprive it of its ability to support a suspicion related to the driver. If it could be the driver or it could be the passenger, in my view there is a reasonable suspicion in respect of each of them.
[22] The appellant urges this Court to accept that the trial judge erred as the officer did not smell alcohol from the appellant in his vehicle and when he stepped out of his car. It was not until when Cst. Bryan claimed she smelt alcohol from the appellant’s breath in the back of the cruiser. Yet, somewhat dissimilar to the facts in Mason, the trial judge was entitled to find that Cst. Bryan also had reasonable grounds to suspect that the appellant had consumed alcohol solely based on the odour of alcohol emitting from the car and later confirmed by the officer in her police vehicle. The trial judge accepted that there was more than just the initial smell emanating from within the appellant’s vehicle. In reviewing the evidence, the trial judge stated at pages 38 and 39:
As I understood her evidence the demand for the roadside screening device was made prior to her smelling alcohol in his system while he was in the motor vehicle. There was circumstantial evidence that he had alcohol in his body by virtue of her smell of alcohol coming from the car.
[23] Yet, the trial judge did not stop there. It seems to me that Takach J. turned his mind to the very issue raised by the evidence and advanced by the submissions of counsel. At page 39 of his reasons, Takach J. continued:
There was circumstantial evidence that he had alcohol in his body by virtue of her smell of alcohol coming from the car. On the other hand, she conceded that that could mean that it was the others who had consumed. Had her evidence stopped there coupled with his denial that, in my view, would not support a reasonable suspicion. However, once he was in the vehicle she smelled that alcohol and was entitled, in my view, to rely on her view formed at the roadside and to couple that with a demand made while she was in the cruiser having smelled alcohol while he was in the backseat.
[24] The standard for the exercise of police powers is highly contextual: R. v. Golub, [1997] O.J. No. 3097 (C.A.).
[25] On my review, it is apparent that the trial judge was alive to the evidence of the officer’s actions in forming her reasonable suspicion within the entirety of the temporal context of what had occurred. On the evidence accepted by the trial judge, he was entitled to find that there was a continuing series of events and the immediacy of the activity at the scene along with the officer’s determinations formed the proper basis for her reasonable suspicion and legal demands for breath samples. As the trial judge noted, the immediate or momentary interval from the appellant exiting his vehicle and being taken to the police cruiser, where the officer’s lower standard of reasonable suspicion was confirmed, did neither restrict nor vitiate the right for the officer to form her reasonable suspicion. As observed in his reasons, the learned trial judge properly applied the facts to the appropriate legal principles. I do not find any overriding or palpable error of law or a misapprehension of the evidence on this pivotal issue.
Reasonable Excuse Based on a Mistake of Law
[26] The appellant concedes that he is unaware of any decision directly on point with the facts of the case at bar. However, the appellant relies on the principles arising from R. v. Smith [2001] O.J. No. 5925 and similar cases. The appellant submits that the evidence supports a valid refusal to blow was on the basis of a mistake of law, and the arresting officer, in this investigative context, was an appropriate official upon whom the accused might seek to rely for information. As such, the trial judge discounted and arrived at an unreasonable conclusion with respect to the evidence whereby a detained accused must make the choice in relation to legal obligations having penal consequences, without access to independent legal advice”. In support of his position, the appellant also offers the case of R. v. Jorgensen (1995), 102 C.C.C. (3d) 97 (S.C.C.).
[27] I need not go any further down this road of analysis. With respect, I disagree with the appellant’s assertions. When advanced by a party to litigation, the law is settled that officially induced error is only available in the clearest of cases: R. v. Halloran, [2010] O.J. No. 3346 (Sup. Ct.) at para. 6.
[28] It is clear from the transcripts that the trial judge rejected the appellant’s evidence on this point and accepted that the officer provided the requisite information regarding the consequences of a failure to provide a sample along with the various licence suspension scenarios. The trial judge was entitled to prefer and accept the officer’s testimony in his overall assessment of the evidence. The trial judge was entitled to conclude that the Crown proved the absence of a basis for a reasonable excuse.
[29] Even, if there was an error and a misapprehension of the evidence that Cst. Bryan did not fully explain or misidentified the consequences of refusal to provide a breath sample, I accept the Crown’s position that this is not an error of law justifying appellate interference. Where there is an outright refusal – as there is in the case at bar – the failure of a police officer to apprise a motorist of the process and consequences of non-compliance does not affect the validity of a demand made under s. 254(2): R. v. Danychuk, [2004] O.J. No. 615 (Ont. C.A.) at para. 19. See also R. v. Fernandez, 2016 ONCJ 180 at paras. 27 and 28.
Conclusion
[30] I am not persuaded that the verdict was unreasonable or that Takach J. erred in law or misapprehended the evidence to the legal requirements of the charge as particularized in the information.
[31] For the aforementioned reasons, I do not find a palpable or overriding error warranting appellate intervention. The appeal is dismissed.