COURT FILE NO.: CR-19-50000025-00AP DATE: 20200611
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – RORY COUTTS Appellant
Counsel: Laurie Gonet, for the Crown Frederick Fedorsen and Adam Little, for the Appellant
HEARD: May 29, 2020
A.J. O’MARRA J.
SUMMARY CONVICTION APPEAL
[1] The appellant, Rory Coutts appeals against the conviction on the charge of refuse/fail to provide a breath sample, contrary to s. 254(5) of the Criminal Code made March 4, 2019.
[2] After a two-day trial, Mr. Coutts was found not guilty for the offence of impaired operation of a motor vehicle, but guilty for having refused/failed to provide a breath sample in compliance with a demand made pursuant to s. 254(3) of the Criminal Code. The court found that there had been a number of Charter of Rights and Freedoms infractions with respect to the roadside demand made under s. 254(2), principally that the demand was not made forthwith, thereby resulting in a delay to promptly provide him with the reason for his detention, contrary to s. 10(a) of the Charter. In considering the application of s. 24(2) of the Charter the Court declined, in the circumstances to exclude the evidence of the appellant’s refusal/failure to provide a breath sample. Accordingly, the evidence was admitted, and he was convicted.
[3] The appellant appeals against his conviction on the basis that the trial judge erred by:
(i) convicting him in the circumstances where the breathalyzer demand under s. 254(3) of the Code was an invalid and unlawful demand and, as such, he had no legal obligation to comply with it. As a result of the invalid and unlawful roadside ASD (Approved Screening Device) demand, the “fail” result received was inadmissible to provide the requisite reasonable grounds to arrest the appellant under s. 495(1) of the Criminal Code, and make the breathalyzer demand pursuant to s. 254(3) of the Criminal Code.
(ii) the learned justice erred in failing to find multiple Charter infractions contrary to ss. 8, 9, 10(a) and (b) of the Charter as a result of the invalid and unlawful ASD demand; and
(iii) failing to exclude the evidence of the appellant’s refusal pursuant to s. 24(2) of the Charter.
[4] The appellant has raised on appeal several alleged errors for the first time, which were not raised on the trial.
[5] There is a general rule against hearing appeals that raise issues not raised at trial for two reasons. First, there is a risk of prejudice to the adversely affected litigant who was unable to call evidence in support of the position, and second, there may be an insufficient record upon which to make necessary findings of fact. However, this general rule is subject to an exception where a court has a sufficient factual foundation to appraise the issue without prejudice to the parties and the matter should be determined to prevent an unfairness.
[6] To raise a new issue on appeal the appellant is to satisfy three considerations as set out in R. v. Reid, 2016 ONCA 524, [2016] O.J. No. 3554 at para. 43:
(i) The evidentiary record must be sufficient to permit the appellate court to fully, effectively and fairly determine the issue raised on appeal.
(ii) The failure to raise the issue at trial must not be due to tactical reasons.
(iii) The court must be satisfied that no miscarriage of justice will result from the refusal to raise the new issue on appeal.
[7] The parties agreed at the outset of the hearing that a determination of the first ground of appeal, raised for the first time, if successful, would render the alleged Charter errors moot.
[8] As to the first consideration set out in Reid, the Crown concedes that in this case there is a sufficient record upon which the issue may be determined. Accordingly, a brief summary of the circumstances is required.
Summary of the Facts
[9] Constable Chaumont and his partner were on uniform patrol in the area of Bloor Street and East Mall, Toronto on March 22, 2017. While stopped at a red light at the intersection, at 2:46 a.m. the Constable observed a vehicle in his rear-view mirror approaching at a high rate of speed that braked hard and switched lanes abruptly. When the light turned green, Constable Chaumont proceeded to drive through the intersection. He observed the vehicle that had approached quickly from the rear make a quick right hand turn from lane 2 missing the dedicated and marked right hand turn lane unto East Mall. It constituted an improper turn under the Highway Traffic Act, which caused the Constable to reverse direction of the squad car and to follow the vehicle.
[10] The vehicle made a number of turns before going through a stop sign and finally pulled into a driveway at 2:49 a.m. It appeared to the officer that the driver was lost or driving in an evasive manner. Constable Chaumont’s partner received information from a CPIC record check that the registered owner of the vehicle was before the courts for charges of assault, threatening death, resist a peace officer and weapons dangerous. Not knowing whether the driver (the appellant) was the registered owner, and possibly dangerous, they waited a few minutes to see what he did. When the driver had not moved from the driver’s seat, at 2:52 a.m. the officer initiated an HTA stop by turning on the roof lights, siren and in-car camera of the squad car. The officers exited the squad car and approached the vehicle with Constable Chaumont to the driver’s side and his partner to the passenger side.
[11] Constable Chaumont testified he could smell an odour of alcohol coming from the vehicle but could not tell whether it was from the driver (the appellant) or the passenger or simply from inside the vehicle. The appellant offered his driver’s licence when requested but had some difficulty producing the ownership and insurance and fumbled with the documents. The officer observed that the driver’s eyes were extremely bloodshot and that he spoke with a lisp, described by the officer as “numb tongue”. In answer to the question asked by the officer as to whether he had been drinking, the appellant said he had consumed one beer.
[12] Between 2:52 and 2:55 a.m. the officer testified he had formed a suspicion to justify making the approved screening device (ASD) demand. However, he chose not to do so because of “safety concerns” and to consult with his partner to formulate a plan, request backup and an ASD.
[13] When he left the appellant to return to the squad car, he told him to “sit tight, stay in your car, OK?” By 3:02 a.m, backup officers arrived with the ASD and provided it to Constable Chaumont.
[14] At 3:07 a.m. Constable Chaumont returned to Mr. Coutts and told him he would be making a roadside approved screening device breath demand. He asked Mr. Coutts to step out of the vehicle, which he did without difficulty and Mr. Coutts walked normally to the cruiser without displaying any typical signs of impairment.
[15] At 3:09 a.m. the formal breath demand was read to him. After several attempts an adequate breath sample was provided by 3:12 a.m., which registered as a “fail”.
[16] At 3:13 a.m. Mr. Coutts was placed under arrest for impaired operation however, approximately five minutes later the officer corrected himself and advised him he was under arrest for being “over 80”.
[17] When he was read his rights to counsel the appellant told the officer that he wished to contact a female lawyer but did not know her name. He then indicated that he could call his parents and get the phone number. The officer told him he would have reasonable access to a telephone at the station.
[18] At 3:18 a.m. the officer read Mr. Coutts the approved instrument demand pursuant to s. 254(3) of the Criminal Code.
[19] Mr. Coutts was taken to the police division where he was paraded at 4:01 a.m.. He indicated that he no longer wished to call his parents and wake them up, but he was prepared to speak with duty counsel. Duty Counsel was contacted, and Mr. Coutts spoke with him from 4:12 a.m. to 4:15 a.m.
[20] By 4:19 a.m. he was turned over to a qualified breath technician, Constable Iulian Andrici. After several inadequate attempts to provide a breath sample by failing to follow the directions in how to do so, he was charged with refuse/fail to provide a breath sample, s. 254(5). Subsequently, the “over 80” charge was changed to impaired operation of a motor vehicle.
Judge’s Reasons
[21] The trial judge found that at 2:55 a.m. when the Constable instructed Mr. Coutts to “sit tight” and stay in his car that he was detained and should have been informed promptly of the reason for that detention. Further, that the ASD demand at 3:09 a.m. was not made forthwith. Moreover, because of the accused’s cooperativeness, in his view, the concern about officer safety was not a reasonable justification for the failure to make the ASD demand at 2:55 a.m., stating: “there were no exigent circumstances that would have not permitted the roadside ASD demand and the informational content of s. 10(a) to have been given”.
[22] In addition, the trial judge found that given the time between 2:55 a.m. and 3:18 a.m. there would have been an opportunity for Mr. Coutts to have called his parents and possibly discovered the name of and speak with counsel of choice at the roadside, but the officers did not permit him to do so, thus breaching the second part of his s. 10(b) right to retain and instruct counsel without delay. However, the trial judge found that when Mr. Coutts was provided the opportunity to speak with duty counsel, as he chose to do so, “he was provided with a reasonable opportunity to contact a lawyer of his choice. Having agreed to speak to duty counsel and not pursue his request for a specific lawyer, the trial judge found that the defence had not established on a balance of probabilities that Mr. Coutts’ Charter protected rights under s. 10(b) were breached.
[23] In consideration of the three specific concerns outlined in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 as to whether the breath sample refusal should be excluded pursuant to s. 24(2) of the Charter, seriousness of the Charter violation, the significance of the impact of the violation and the societal interest in having the case adjudicated on its merits, he concluded that the Charter breaches did not warrant an exclusion of the evidence of Mr. Coutts’ refusal to provide a breath sample into an approved instrument.
Issues and the Law
[24] In considering the first issue: if the ASD roadside demand (s. 254(2)) was unlawful was the breathalyzer demand, (s. 254(3)) lawful, thereby requiring compliance by the appellant?
[25] Counsel for the appellant argued that as result of the finding of fact that the ASD demand was not made forthwith, it was not a valid demand under s. 254(2) and the resultant “fail” was inadmissible “to prove the requisite grounds for the breathalyzer demand”. Without the “fail”, the breathalyzer demand made under s. 254(3) was also not valid.
[26] In R. v. Wood, 2005 SCC 42, [2005] S.C.J. No. 42 at para. 9 the court noted that there are two ways an ASD breath demand can be legally obtained: either pursuant to a valid 254(2) demand or given voluntarily. Where it is not given voluntarily within the meaning of Dedman v. Her Majesty the Queen, [1985] 2 S.C.R. 2 its admissibility to prove the requisite grounds for a breathalyzer demand depends on whether it was obtained pursuant to a “lawful demand” under s. 254(2). If the s. 254(2) demand is not valid then the s. 254(3) breathalyzer demand is also invalid.
[27] Further, it was noted by Lamer C.J. in R. v. Grant, [1991] 3 S.C.R. 139 at para. 21 that it is a factual determination and its admission falls outside of Charter considerations:
It follows that, as Mr. Grant did not commit the offence of failure to comply with a valid s. 238(2) demand, (now s. 254(2)) the issue of the exclusion of evidence of his failure to comply with the demand which was actually made does not arise. Section 24(2) of the Charter consequently does not come into play, as evidence of Mr. Grant's failure to comply with a demand that fell outside s. 238(2) (now s. 254(2)) is irrelevant to a prosecution for the s. 238(5) (now s. 254(5)) offence. (Emphasis added)
[28] For the appellant to have been convicted of the offence of refusal/fail to provide a breath sample pursuant to s. 254(5) the Crown was required to prove that the breathalyzer demand under s. 254(3) was valid. As Lamer C.J. explained, evidence of a failure to comply with a demand that fell outside the ambit of s. 254(2) is irrelevant to the prosecution for an offence under s. 254(5).
[29] The requirement for a valid demand is that the police have the requisite “reasonable grounds” to make the demand under s. 254(3). The only basis in the circumstances of this case for the arresting officer to have made the s. 254(3) demand was as a result of the “fail” result of the ASD following the s. 254(2) demand, which was a demand, as found, not given “forthwith”. Accordingly, it was factually an unlawful and invalid demand.
[30] In R. v. Alex, 2017 SCC 37, [2017] 1 S.C.R. 967 in considering whether a “lawful demand” was required in the context of proving an over 80 offence by use of the evidentiary shortcuts available to the prosecution in ss. 258(1)(c) and 258(1)(g) of the Criminal Code to establish an accused’s blood alcohol concentration, the Supreme Court confirmed that, even where there are insufficient grounds to make the demand, as applied in Rilling v. Her Majesty the Queen, [1976] 2 S.C.R. 138, it is unnecessary for the Crown to prove a lawful demand to rely on those evidentiary shortcuts.
[31] In Alex the appellant and intervenors had argued, in comparing the refusal offence, s. 254(5) where the demand must be lawful and the use of the s. 258 evidentiary presumptions to prove an over 80 offence even where there was an unlawful demand that, “it would be unfair and anomalous if the Crown only had to establish the lawfulness of a demand if an accused refused, but not if the accused complied with the demand”.
[32] Moldaver J. in speaking for the majority observed that the comparison of the s. 254(5) refusal offence, requiring non-compliance with a lawful demand, to the Crown’s use of the s. 258 evidentiary shortcuts to prove an over 80 offence even if the demand was unlawful, is flawed. While the refusal offence, s. 254(5) is part of the same statutory regime, it is different from the other drinking and driving offences. Culpability for the refusal is based on disobedience with lawful compulsion, whereas culpability for an “over 80” offence is based on driving with blood alcohol concentration over the legal limit. Disobedience of an unlawful compunction is simply not a criminal offence. It is not unfair that a person who refuses to comply with an unlawful demand is acquitted, but if that same person complies and is prosecuted for an over 80 offence the evidentiary shortcuts continue to apply. Moldaver J. stated at para. 50:
The distinct nature of these offences also undermines Mr. Alex’s submission that it is unfair that a person who refuses to comply with an unlawful demand is acquitted, but if that same person complies and is prosecuted for an “over 80” offence, the evidentiary shortcuts will continue to apply. Moreover, Mr. Alex’s suggestion that this fosters absurdity in the law by discouraging compliance with breath demands is unpersuasive. For decades, the law under Rilling has been applied and there is no foundation to the practical concern about discouraging compliance with breath demands. Indeed, it remains a dangerous gamble for an individual to deliberately refuse a breath demand. If the demand is later found to be lawful, the refuser may be convicted, even if he or she was actually under the proscribed limit: Taraschuk, at p. 388. (Emphasis added.)
[33] In this case the court found that the delay in administering the roadside breath demand was not forthwith and as a result unlawful. Constable Chaumont testified on the trial, October 30, 2018 that the reason why he made the breathalyzer demand was “because he failed the roadside, the screening device and that’s the next step and under the Criminal Code of Canada, he is required to provide two samples of his breath . . .”.
[34] As result of the invalid and unlawful ASD demand the “fail” result was inadmissible to prove the requisite reasonable grounds to arrest for being “over 80” and to make the breathalyzer demand pursuant to s. 254(3) of the Criminal Code. As such, Mr. Coutts was under no obligation to comply with the demand. His refusal was not unlawful.
[35] In considering the second Reid criteria, there is nothing in the record to suggest that the issue was not raised at trial due to tactical reasons. Counsel for the appellant prepared fulsome written submissions focused on the various Charter issues on the evidence responded to by the Crown. There was no benefit to the appellant at trial to have chosen not to proffer a defence that disobedience of an unlawful compulsion is not criminal.
[36] Lastly, where there is a factual determination on the evidence that the demand was unlawful, based on the record of the case, it would be a miscarriage of justice to refuse to have the issue raised on appeal. In the circumstances, the refusal in this case was not an offence.
[37] To use an example as cited in Alex in reference to R. v. Plamondon (1997), 121 C.C.C. (3d) 314 (BCCA) if an arrest is unlawful it can provide a complete defence to the charge of resisting arrest under s. 270 of the Criminal Code. Similarly, it is a defence to refuse to provide a breath sample where the demand is unlawful.
[38] Finding in favour of the appellant on this issue there is no further requirement to consider the Charter grounds of appeal advanced.
[39] In the result, the conviction for refuse/fail to provide a breath sample pursuant to s. 254(5) is quashed and an acquittal is entered.