Court File and Parties
COURT FILE NO.: CR-17-152-00AP DATE: 20181212
ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL
BETWEEN: HER MAJESTY THE QUEEN – and – Matthew Merko Respondent
Counsel: Arish Khoorshed, for the Crown Appellant Adam Little, for the Respondent
HEARD: December 5, 2018
Reasons for Judgment
WOOLLCOMBE J.
Introduction
1This is an appeal by the Attorney General for Ontario against the October 31, 2017 order of Crawford J. acquitting the respondent of driving “over 80”.
2At trial, it was the position of the defence that the accused’s breath test results should be excluded from evidence pursuant to s. 24(2) of the Charter, as a result of breaches of ss. 8 and 9 of the Charter. More specifically, the defence submitted that the police officer who made the breath demand at the RIDE program lacked reasonable and probable grounds to do so. As a result, it was argued that the arrest and detention violated s. 9 and that the breath samples were seized in violation of s. 8.
3On appeal, the Crown made two arguments. First, it submitted that the trial judge erred in finding that the arresting officer lacked reasonable and probable grounds for the arrest and so erred in finding that there were breaches of ss. 8 and 9 of the Charter. Second, it argued that the trial judge erred in excluding the breath samples under s. 24(2) of the Charter.
Did the trial judge err in finding that the arrest was made without reasonable and probable grounds and that there were breaches of ss. 8 and 9 of the Charter?
4At the oral hearing of the appeal, I indicated that I did not need to hear from the respondent in relation to the trial judge’s conclusion that the officer lacked reasonable and probable grounds for the arrest.
5In my view, there was no error in the trial judge’s assessment as to whether the officer had reasonable and probable grounds for the arrest.
6As set out in the trial judgment, the factual background is relatively straight-forward.
7PC Crossfield was one of six OPP officers operating a RIDE program on November 2, 2016. At approximately 12:15 a.m., the respondent approached the RIDE spot check and was pulled over. The officer spoke to the respondent through his driver’s side window, explained that he was doing a RIDE check and asked if the respondent had had anything to drink. The respondent said he had consumed one beer. He was asked for his driving documents and the respondent’s movements were described as “very sluggish, slow and laboured” as he looked for his licence. The officer said that the respondent’s pupils appeared quite dilated and that his speech was slurred.
8PC Crossfield asked the respondent to get out of the car and to come to the police cruiser as he intended to have him provide a roadside screening test. As they walked to the car, he said that the respondent staggered a little bit and seemed unsteady on his feet. When he asked him a second time how much he had had to drink, the respondent told the officer three beers. The officer asked the respondent to walk around the car so he was not on the edge of a live lane of traffic. The respondent asked PC Crossfield, “Am I under arrest now?”
9It was PC Crossfield’s evidence that as a result of this statement by the respondent, he formed his grounds to believe that the respondent was impaired and arrested him.
10The respondent was handcuffed and frisk searched. Before he was given his rights to counsel, the officer asked a third time how much he had had to drink, to which he responded “two pitchers”.
11The respondent was placed in the back of the police cruiser where he was read his rights to counsel, the police caution and the breath demand.
12The respondent was taken to the police station where he was escorted to the cell area and frisked. His handcuffs were removed and he was lodged in a cell at approximately 12:44 a.m. At 12:53 a.m., the respondent spoke with duty counsel. He provided breath samples at 1:03 a.m. and 1:24 a.m. He was released at 1:57 a.m.
13The trial judge recognized that “reasonable grounds” for arrest has both a subjective and an objective component, requiring the officer to have an honest belief that the suspect committed an offence and that this honest belief be supported by objective facts.
14The Crown submits that the trial judge dissected the officer’s grounds and looked at them in isolation. He also says that the trial judge erred in concluding that the totality of the circumstances did not support a finding that the arrest was objectively reasonable and that, effectively, she held the officer to too high a standard when he was in the position of having to make quick decisions.
15I reject both arguments challenging the trial judge’s ruling that sections 8 and 9 of the Charter were violated.
16First, the trial judge expressly cautioned herself that she was not to dissect the officer’s grounds and was, instead, to review the totality of the circumstances. She then carefully reviewed all of the circumstances, including the troubling aspects of PC Crossfield’s testimony during cross-examination. In my view, she undertook precisely the approach she ought to have in determining whether the various individual observations made by the officer, viewed cumulatively, could, objectively, amount to reasonable and probable grounds for the arrest.
17In undertaking her analysis, the trial judge highlighted that there were multiple ways in which PC Crossfield’s observations of the respondent were not nearly as clear and concise as he had initially testified about in-chief. She reviewed in detail the various inconsistencies in his evidence.
18The trial judge then addressed the troubling issue of the question asked by the respondent and the officer’s reaction to it. She noted that in-chief, the officer said that he interpreted this question as the respondent knowing that he was impaired and that this question led him to have reasonable grounds for the arrest. In contrast, under cross-examination, the officer said that this did not lead him to having reasonable grounds for the arrest. The trial judge found, reasonably, in my view, that the question in this context could not be taken as an admission of guilt or as an indicia of impairment. She also found as a fact, as was open to her on this record, that the question by the respondent is what moved the officer from having reasonable suspicion to having reasonable grounds for the arrest. Finally, she held that without his reliance on this statement, the officer had only “reasonable suspicion”, and an insufficient basis for the arrest.
19Considering the evidence in totality, in my view, the trial judge made no error in concluding that the officer lacked reasonable and probable grounds for the arrest and that, as a result, there were violations of ss. 8 and 9 of the Charter.
Did the trial judge err in excluding the breath samples as a remedy under s. 24(2) of Charter?
20The appellant submits that there are two errors in the trial judge’s s. 24(2) analysis. First, he says that on the first prong of the test, the seriousness of the breaches, in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32, the trial judge erred in characterizing the state conduct as “moderately serious”. Second, he says that the Court of Appeal’s decision in R. v. Jennings, 2018 ONCA 260, released after the trial judge gave her decision in this case, changes the manner of assessing the second prong of the Grant test and that on a proper analysis, this line of inquiry favours admission of the breath sample.
21It is the role of a trial judge to weigh the various factors under s. 24(2) and to determine how to strike the appropriate balance. There can be no dispute that if a trial judge considers the proper factors in a s. 24(2) analysis, his or her ultimate determination as to whether to admit or exclude evidence is entitled to considerable deference: Grant at para. 86.
22In considering the first line of inquiry mandated by Grant, the trial judge found that the officer was truthful and professional in his interactions with the respondent, that he had not acted in bad faith and that there was no suggestion that he had deliberately violated the respondent’s rights. However, she found that there were real concerns with the fact that his ability to articulate his grounds for arresting the respondent and making a breath demand were “unclear, inconsistent and unreliable”. She found that his notes, which he had testified only captured the “high notes” of his conversation with the respondent, were wanting. Finally, she concluded that the officer’s decision to move from having reasonable suspicion to having reasonable and probable grounds to arrest, on the basis of the respondent’s question, was an improper assumption on the part of the officer. As a result, the trial judge found the Charter violation to be “moderately serious”.
23The Crown submits that the trial judge’s conclusion that the breach was “moderately serious” really flowed from her view that the officer’s note-taking was “sloppy” and that this has no place in a Charter analysis. I do not accept this as a fair characterization of the trial judge’s analysis. The trial judge found that the officer’s evidence about his grounds for arrest was unclear, inconsistent, and unreliable. In part, this was because of the fact that he had poor notes. It also was grounded in the fact that he had a poor recollection as to what had happened. But, more importantly, the trial judge was concerned that the officer had, erroneously, believed that the respondent’s question could be an indication of his guilt and was what moved him from having reasonable suspicion to having reasonable and probable grounds for arrest. It was the officer’s failure to understand and appreciate that this question was irrelevant to his grounds for arrest that was concerning and made the breach moderately serious.
24In my view, there was no error in the trial judge’s analysis of the first line of the Grant inquiry. She considered the appropriate factors and made findings that were open to her. There is no basis upon which to interfere with her conclusion.
25Consideration of whether the trial judge erred in the second line of inquiry set out in Grant inquiry, the impact of the breaches on the Charter-protected interests of the accused, requires some understanding of the background to and decision of the Court of Appeal in Jennings.
26As the Court of Appeal describes in Jennings, prior to its release, there appear to have been two competing lines of authority suggesting a methodology for assessing the seriousness of the impact of a Charter breach in cases involving the unlawful and unconstitutional seizure of breath samples.
27The leading authority on one side was the decision of Ducharme J., sitting as a summary conviction appeal court judge in R. v. Au-Yeung, 2010 ONSC 2292. In assessing the second line of inquiry in Grant in the context of a case in which the police lacked reasonable and probable grounds for arrest and the breath demand, Ducharme J. wrote the following, at paras. 59-62:
59 The arrest of the appellant impacted his rights under sections 8, 9 and 10 of the Charter. The police respected his rights under sections 10(a) and 10(b) of the Charter. However, as P.C. Wollenzien lacked the requisite grounds for the breath demand pursuant to s. 254(3) of the Criminal Code, the taking of the appellant's breath samples constituted an unreasonable search and seizure contrary to s. 8 of the Charter. Finally, although this was not argued by the appellant as a separate Charter violation, the arrest and detention of the appellant constituted a violation of sec. 9 of the Charter.
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.
28As Miller J.A. explained in Jennings, the competing line of authority rejected the Au-Yeung approach and limited the second Grant factor to addressing the intrusiveness of the breath sample procedure itself.
29In Jennings, while it did not need to address to issue of s. 24(2) at all given that there was no s. 8 breach, the Court of Appeal found it necessary to address the 24(2) issue and to resolve the competing lines of authority that had developed. In so doing, Miller J.A., for the Court, explained that:
29 Much of the debate between these two lines of cases focuses on the significance of statements in Grant, in which the Supreme Court identifies breath samples as a central or paradigmatic example of a minimally intrusive search: see paras. 106-111. Although, as the respondent argued, the proposition that breath sample procedures are minimally intrusive is simply dicta in Grant, it should be noted that the statement was no mere throwaway line. The Supreme Court chose the example of breath sample procedure as an apt and economical means of illustrating the concept of a minimally intrusive search. And the Court assuredly did so in the knowledge that most formal demands for breath samples would be accompanied by an arrest and by all of the accompanying incidents itemized by the trial judge.
30 This reading of Grant is consistent with other judgments of this court, such as R. v. Manchulenko, 2013 ONCA 543, 116 O.R. (3d) 721, where Watt J.A. refers to “the general rule with respect to the admissibility of breath samples due to their non-obtrusiveness” (at para. 100) and, citing Grant at para. 111, says that “as a general rule, reliable evidence obtained by less egregious and invasive intrusions into privacy, bodily integrity and dignity, such as the taking of breath samples, may be admitted.”
31 Similarly, in R. v. Guenter, 2016 ONCA 572, 350 O.A.C. 318 (Ont. C.A.), Brown J.A. notes, at para. 98, that "[t]he collection of the breath samples amounted to no more than a minimal intrusion upon the appellant's privacy, bodily integrity and human dignity: Grant, at para. 111."
32 To find otherwise would be to create a categorical rule that s. 8 breaches in breath sample cases automatically favour the exclusion of evidence under the second Grant factor, since drivers in these cases are almost invariably arrested and taken to the police station to provide further breath samples. This would be contrary to the approach taken by the Supreme Court in Grant and to a sound characterization of what is at stake for the individual in providing a breath sample. Accordingly, it was an error for the trial judge, and the SCAJ, to have followed Au-Yeung in this respect and not to have found the impact of the breach to have been minimal, favouring admission. [emphasis added]
30The parties take different positions about the impact of Jennings.
31The Crown submits that here, where the police lacked reasonable grounds for the demand and for the arrest, leading to both ss. 8 and 9 Charter breaches, the s. 9 breach really flowed from the arrest without reasonable and probable grounds. He says that this is precisely the sort of scenario that the Court of Appeal contemplated in Jennings and for which it held that the impact of the breach that should be considered is the taking of the breath sample, which is minimally intrusive.
32It is the Crown’s position that the trial judge, who considered not only that there was no lawful basis for the arrest, but also that the respondent was arrested, handcuffed, searched, and detained until his release, erred in reaching the conclusion that this Charter infringing states conduct was real and meaningful and ought to lead to exclusion of the evidence. The Crown observes that the trial judge, who, of course, did not have the benefit of the Court of Appeal’s decision in Jennings, expressly relied on the analysis in Au-Yeung and that in so doing she improperly concluded that the impact of the breaches was significant.
33The respondent submits that this case is distinguishable from Jennings, which dealt only with an alleged s. 8 claim, as here there are both ss. 8 and 9 breaches. The respondent submits that Grant requires the court to engage in an analysis of the seriousness of the violation on both the respondent’s expectation of privacy, as protected by s. 8 of the Charter, and his right to be free of arbitrary detention and imprisonment, as protected by s. 9 of the Charter.
34The respondent says that Jennings cannot and did not create an automatic rule of inclusion and that there is still a requirement to look at the Charter interests that have been violated and to assess, on a case by case basis, what the impact was on the accused, bearing in mind which Charter rights were violated. This approach, says counsel, is consistent with how a s. 24(2) analysis is done in all other cases and it makes little sense to depart from that approach just because the case involves allegations of drinking and driving. That cannot have been the intent of the Court of Appeal in Jennings.
35It is the respondent’s position that the trial judge appreciated the impact of the two breaches on his constitutionally protected interests and properly concluded that this line of inquiry should lead to exclusion.
36Interestingly, the post-Jennings debate has emerged in a number of other cases already in both the Ontario Court of Justice and the Superior Court of Justice. I will not summarize all of them, but point to two decisions from the Superior Court as demonstrative of some of the ongoing issues and questions.
37In R. v. Mann, 2018 ONSC 1703 Justice Linhares De Sousa, sitting as a summary conviction appeal court judge, considered whether the trial judge had erred in admitting the results of breath testing in a case in which the trial judge had concluded that the officer lacked reasonable and probable grounds to stop the appellant’s vehicle, resulting in a s. 9 breach, and that the officer lacked reasonable suspicion for a roadside sample, resulting in a s. 8 breach. It was her view that, unlike in Jennings, there were multiple breaches and that Grant required her to consider the interests engaged by both ss. 8 and 9. Relying on Pacciocco J (as he then was) who followed the analysis in Au-Yeung in R. v. Steele, 2014 ONCJ 583, at paras. 53-55, she found that the breaches had a significant impact on the accused and favoured exclusion. Obviously, the defence relies on this case.
38On the other hand, in R. v. Barr, 2018 ONSC 2417 Ratushny J. appears to have analysed the issue differently when sitting as a summary conviction appeal court judge. In that case, the trial judge found ss. 8 and 9 breaches and excluded the breath samples. On appeal, while she overturned the s. 8 and 9 findings, Ratushny J. then went on to consider s. 24(2) “assuming there was a breach of the respondent's rights under s. 8 and 9 of the Charter flowing from his arrest based on his ASD test result in circumstances where the arresting officer did not consider the possibility of residual mouth alcohol and therefore did not have reasonable and probable grounds to arrest or to make a breathalyzer demand”.
39Ratushny J. concluded that it was an error for the trial judge not to have found the impact of breach to be minimal and favour admission. She specifically rejected the argument of defence counsel respecting the multiple breaches stating, at paras 56-59:
56 Defence counsel submits that Jennings should not be dispositive of the trial judge's analysis of the second Grant factor because Jennings did not deal with a s. 9 breach, in contrast to the present case where the trial judge found there had been both s. 8 and s. 9 breaches. Defence counsel submits that there were multiple s. 8 and 9 breaches all arising from Constable Meness' failure to consider the possibility of residual mouth alcohol and that this changes the assessment of the second Grant factor because the impact of the breaches on the respondent are more serious.
57 I cannot accept this argument. Defence counsel is alleging multiple breaches arising out of a single "mistake" by the officer resulting in the collection of breath samples. However, there is no evidence of separate or multiple breaches. By alleging multiple s. 8 and 9 breaches so that their combined impact might be considered as more intrusive and serious, Defence counsel is effectively arguing that which Jennings has now rejected, namely a consideration of the impact of the entirety of the procedure faced by the respondent after arrest, rather than only considering as has now been clarified, the minimal intrusiveness of the breath sample procedure on his privacy, bodily integrity and human dignity.
58 This was also an argument in R. v. Ho, 2014 ONSC 5034, at para. 19, rev'd on other grounds, 2015 ONCA 559, decided before Jennings, where the SCAJ said "the s. 9 Charter 'spin' adds nothing to the debate, especially when one sees absolutely no reference to it in the Grant analysis by the Supreme Court of Canada: see para. 111". The SCAJ in Ho, at para. 18, noted that the same s. 9 argument had been made and rejected by the Supreme Court of Canada in Shepherd, supra, at para. 14, when it said that "based on the facts of this case nothing would be added by an analysis under s. 9. Accordingly, our analysis will proceed solely under s. 8".
59 I agree that a consideration of the second Grant factor in breath sample cases is certainly not limited to only considering the minimal intrusiveness of the breath sample procedure. It depends on the evidence leading to a finding of a breach or breaches and an evaluation, as stated in Grant, at para. 76, of "the extent to which the breach actually undermined the interest protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive".
40It seems to me that the Supreme Court of Canada made clear at para. 134 of Grant that a s. 24(2) analysis must focus on the impact of the breach on the accused’s protected interests. Because different Charter rights protect different interests, if there are different rights violated, each must be considered separately at this stage. It must be assumed that the Court of Appeal in Jennings was well aware of the Supreme Court of Canada’s direction in that regard.
41In Jennings, the Court of Appeal dealt with a case involving only one Charter violation, a s. 8 claim. Nevertheless, at para. 29, the Court appears to have considered that when the Supreme Court of Canada found that breath sample procedures were minimally intrusive, that Court must have known that breath demands are accompanied by arrest, detention, taking an accused to the police cruiser and then detention at the police station for the taking of the sample. In other words, while not saying so directly, the Court of Appeal seems to have considered that while an arrest without reasonable and probable grounds would result in a s. 8 violation through the subsequent seizure of breath samples, it would also, necessarily, result in a s. 9 violation due to the resulting unlawful arrest and detention. On my reading, I understand the Court of Appeal to essentially be saying that in many cases the consequential s. 9 violation will not necessarily create a significant added impact on an accused’s Charter protected interests.
42To be clear, I do not see Jennings as creating an automatic rule of inclusion of breath samples irrespective of whether or not s. 9 was also breached. Rather, as Grant directs, a case by case analysis is always necessary to assess the impact of the particular breaches on the particular accused. But, Jennings contemplates and clarifies that there will be a minimal intrusion on an accused’s Charter protected interests in many cases in which there is a breach respecting the arrest and breath demand, which necessarily leads to a detention and transportation to the police station for the taking of a breath sample (and thus a s. 9 violation). Of course, in cases in which the deprivation of an accused’s liberty is more significant, it might well be that the impact of this breach would be greater. This is a fact specific determination for the trial judge based on all of the circumstances of the particular case: Barr at paras. 56-59.
43In this case, without the benefit of the Court of Appeal’s decision in Jennings, the trial judge followed Au-Yeung. She found, correctly, that she was required to consider constitutional breaches, and the extent to which they affected the respondent’s Charter protected interests. Bearing in mind that the taking of the breath sample was minimally intrusive, what is lacking in the trial judge’s reasons is a consideration of the effect of the deprivation of the respondent’s liberty, bearing in mind what the Court of Appeal said in Jennings about the effect of the usual processes that follow an arrest in this context, including a detention and transportation to the police detachment for the breath samples to be collected.
44In my view, the liberty deprivation in this case was minimal. The respondent was stopped by police at 12:15 a.m. He was arrested at about 12:19 a.m. The officers transported him to the station at about 12:26 a.m. He was lodged in a cell at 12:44 a.m. Duty counsel returned a call to the station at 12:53 and the respondent spoke to counsel until 12:57 a.m. Breath samples were taken at 1:03 a.m. and 1:24 a.m. At 1:57 a.m., the respondent was released.
45I find that what took place in this case was precisely the sort of investigation contemplated by the Court of Appeal in Jennings. It is consistent with what takes place in a large number of routine drinking and driving investigations. While, admittedly, the respondent was arrested and detained, it was for a short period (less than two hours) and was, in context, minimally intrusive on his liberty interests. In my view, the second line of the Grant inquiry ought to have led to inclusion.
46In conducting the balancing, the trial judge found her decision to be a difficult one. When the second line of inquiry is re-assessed in light of Jennings, the balance ought to have led to inclusion of the evidence. While the police officer fell short of having reasonable and probable grounds for the arrest, it was not by much. The seriousness of the breach was moderate. The interests of the respondent were not significantly impacted. The third line of inquiry, as the trial judge noted, favours inclusion.
47I conclude that the breath samples should not have been excluded.
48I would allow the appeal, set aside the acquittal, enter a conviction for the offence of operate a motor vehicle “over 80” (count two) and remit the matter to the trial judge for sentencing.
Woollcombe J. Released: December 12, 2018
