COURT FILE NO.: CR-22-10000024-00AP DATE: 20321023 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – AHRIEL RIDLEY

Counsel: M. Morley, for the Appellant (Crown) A. Little, for the Respondent (Ms. Ridley)

Heard: 18 May 2023

Before: S.A.Q. AKHTAR J.

On appeal from the acquittal entered on 15 July 2022 by Justice L. Favret of the Ontario Court of Justice.

FACTUAL BACKGROUND AND OVERVIEW

Background Facts

[1] On 6 January 2020 at around 3:13 a.m., police stopped the respondent after she was seen driving her car the wrong way on Lakeshore Boulevard West in Toronto. When the respondent conducted a U-turn, the police officer in this case, PC Novakowski, activated his emergency lights and siren. He followed the respondent and stopped her vehicle.

[2] When the officer spoke to the respondent, he smelt alcohol on her breath. At 3:17 a.m., the officer made an approved screening device demand. At 3:21 a.m., the respondent’s breath registered a ‘fail’ and she was arrested.

[3] The respondent was given her rights to counsel. When asked whether she wished to contact a lawyer at that stage, the respondent said “no”. At 3:25 a.m., PC Novakowski read the approved instrument demand. At 3:26 a.m., he radioed to ask for the location of the nearest qualified breath technician. The officer also requested a tow truck and another officer to assist with the removal of the respondent’s car.

[4] The officer wrote out an arrest report and carried out checks to determine if the respondent was subject to any release conditions. Those reports had to be submitted electronically before the respondent could be transported and booked in at the nearest station.

[5] At approximately 3:33 a.m., another officer arrived on the scene to assist with the towing. At 3:37 a.m., the police asked the respondent if she needed anything from her car and she indicated she had left her phone inside. Two officers looked through that car. At 3:39 a.m., the officers conducted a pat down search of the respondent and located the phone on her person. The officers drove to the local station arriving at 3:49 a.m. At 3:53 a.m., they were allowed entry into the station and into the sally port. At 3:53 a.m., the respondent was re-read her rights to counsel and she told the officer she did not have a lawyer.

[6] Between 3:55 a.m. and 4:08 a.m., the respondent was booked into the station. At 4:13 a.m., the arresting officer left a voicemail for duty counsel who returned the call at 4:28 a.m. Duty counsel finished his conversation with the respondent at 4:36 a.m. The respondent provided her first breath sample at 4:41 a.m. with the second sample provided at 5:04 a.m. The results were readings of 192 mg and 178 mg of alcohol per 100 mL of blood. At 6:20 a.m., the respondent was served with documents informing her that she had been charged with impaired operation of a conveyance and having a blood alcohol concentration of 80 mg or greater within two hours of operating a conveyance contrary to s. 320.14(1)(b) of the Criminal Code.

[7] At trial, the respondent alleged three separate Charter violations:

• The police had failed to properly inform her of her right to counsel contrary to s. 10(b) of the Charter;
• The police had breached the duty to “hold off” from obtaining evidence before implementing that right to counsel; and
• The breath sample seizure was unlawful because they were not taken as soon as practicable.

[8] The trial judge dismissed the first two Charter grounds but held that the respondent’s s. 8 rights had been breached because of the delay occasioned by the arresting officer printing tow cards for the respondent’s car at the roadside. The judge found that the police were required to take the respondent’s breath samples as soon as practicable and the delay meant that they had failed to do so.

[9] As a result, the judge excluded the breath samples pursuant to s. 24(2) of the Charter and dismissed the excess blood alcohol charge. In addition, the judge held that the evidence raised a reasonable doubt that the respondent was impaired when driving and acquitted her on that count.

The Grounds of Appeal

[10] The Crown appeals the judge’s Charter ruling on the following grounds:

1. The judge erred by holding that s. 320.28(1) of the Criminal Code requires the police to take breath samples “as soon as practicable”;
2. In the alternative, the trial judge erred in the application of the “as soon as practicable” standard by imposing a standard of “as soon as possible”; and
3. In the alternative, if the judge was correct in her interpretation of the statutory principles, she erred by excluding the samples under s. 24(2) of the Charter.

Section 320.28(1) of the Criminal Code

[11] The relevant section of the Criminal Code reads as follows:

320.28 (1) If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person’s ability to operate it was impaired to any degree by alcohol or has committed an offence under paragraph 320.14(1)(b), the peace officer may, by demand made as soon as practicable,

(a) require the person to provide, as soon as practicable,

(i) the samples of breath that, in a qualified technician’s opinion, are necessary to enable a proper analysis to be made by means of an approved instrument …

DID THE TRIAL JUDGE ERR BY FINDING A SECTION 8 BREACH?

The Trial Judge’s Reasons

[12] As noted, the trial judge rejected the respondent’s s. 10(b) Charter application but accepted the defence argument that there had been a violation of the respondent’s s. 8 right. In doing so, she focused on the time taken by the police to take the respondent’s samples. She stated:

The more problematic issue here is the section 8 argument. And the difficulty here is that the equipment in this case registered two different – the time pieces are not coordinated. I think that’s the best way to describe it which leads to some challenge in making findings of fact about how much time it took for the samples to be taken. Why are the samples taken as soon as practicable? That is what this case is about.

[13] In her view the time taken by the officer to call in a tow truck to remove the respondent’s car was too lengthy and unnecessary in the circumstances. She held:

The exact amount of time and whether or not he printed the tow card is a challenge in this case. Officer Novakowski was adamant he did not speak to the sergeant about the tow card. There is some evidence that indeed he may have. And because of that, I cannot conclude on that one point that his evidence is reliable. As such I cannot conclude that all of his conduct as a whole in the context here was reasonable. I don’t expect the police to have a minute by minute account of what happened, but they need to be able to express that they understand that the administration functions should not be part of their responsibility when they have the important duty to bring people to the closest available qualified breath technician to administer the approved instrument - to have the person breathe into the approved instrument.

[14] Accordingly, the judge granted the respondent’s s. 8 application and excluded the samples under s. 24(2) of the Charter.

[15] I find that the judge misunderstood the law on the taking of breath samples and failed to follow binding precedent on the issue.

There is No Requirement for the Police to Take the Samples “As Soon As Practicable”

[16] Section 320.28(1) of the Criminal Code imposes an obligation on the police to make a demand for a breath sample “as soon as practicable”. It also requires the person to whom the demand is made to provide a sample as soon as practicable. As both parties agree, words within a statute ought to be read "in their entire context, and in their grammatical and ordinary sense, harmoniously within the scheme of the act, the object of the act and intention of parliament.": Re: Rizzo and Rizzo Shoes, [1998] 1 S.C.R. 27, at para. 21, citing Elmer Driedger, Construction of Statutes, 2nd ed (Toronto: Buttersworths, 1983), at p. 87.

[17] Prior to 2018, the Criminal Code impaired driving sections (s. 258(1)) permitted the Crown to take advantage of an evidentiary shortcut allowing it to establish a rebuttable presumption that is if the samples were taken within a two-hour period, the instrument breath results were presumed to be accurate and correctly reflected a driver’s blood/alcohol content. The Crown could therefore adduce the breath samples without the need for expert evidence.

[18] In order to ensure compliance with the section and to gain the benefit of the evidentiary shortcut, the Crown had to prove that the samples were taken “as soon as practicable”. Failure to do so would mean that it could not rely on the statutory provisions and would require the testimony of a toxicologist to provide a “count back” to identify the tests to the time of driving. In other words, there would be no Charter breach if the police failed to comply with the “as soon as practicable” requirement. The consequence would be that the Crown would lose the assistance of a statutory presumption and would be required to prove intoxication with the evidence of an expert.

[19] In 2018, the law was changed. Section 258(1) was repealed and replaced by section 320.31(1) of the Criminal Code. A new presumption was created. The section reads as follows:

320.31 (1) If samples of a person’s breath have been received into an approved instrument operated by a qualified technician, the results of the analyses of the samples are conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made if the results of the analyses are the same — or, if the results of the analyses are different, the lowest of the results is conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made — if

(a) before each sample was taken, the qualified technician conducted a system blank test the result of which is not more than 10 mg of alcohol in 100 mL of blood and a system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst;

(b) there was an interval of at least 15 minutes between the times when the samples were taken; and

(c) the results of the analyses, rounded down to the nearest multiple of 10 mg, did not differ by more than 20 mg of alcohol in 100 mL of blood.

[20] Significantly, Parliament removed the requirement that the samples needed to be taken within two hours of the accused driving the vehicle in order to gain the benefit of the presumption.

[21] For the following reasons, I agree with the Crown that there is no Charter protected right that breath samples had to be taken “as soon as practicable”.

[22] In R. v. Mawad, 2016 ONSC 7589, André J. sitting as a Summary Conviction Appeal court, dealt with the same argument. In dismissing the appeal, André J. held, at para. 26, that he failed to see “how a statutory short cut given to the Crown to prove a charge of “Over 80” against an accused can be elevated to a violation of his or her constitutional rights”.

[23] In R. v. Green, 2017 ONSC 119, at paras. 18 – 26, Wright J. also sitting as a Summary Conviction Appeal Court, took the same view.

[24] Both cases were binding on the trial judge in this case.

[25] In R. v. Thompson, 2022 ONSC 2056, at para. 17, Nadeau J. also found that a finding that breath samples that were not obtained “as soon as practicable” at its highest, would still not amount to a Charter breach.

[26] The respondent counters that this point has already been conclusively decided against the Crown in R. v. Deruelle, [1992] 2 S.C.R. 663, where La Forest J. remarked, at paras. 15 – 16:

Looking beyond the text of the provision, the breathalyzer scheme of the Code is designed to ensure that breath or blood samples are obtained as quickly as possible after the alleged impaired driving offence. This overriding objective is achieved through various mechanisms found in specific Code provisions. While the general objective is the same throughout the scheme, the specific purposes of each mechanism are different. As such, the fact that the provisions constitute a "scheme" does not mandate a unitary interpretation contrary to the language of each individual provision. The two-hour limit in s. 254(3) contributes to the objective of the scheme by forcing prompt police investigation, and by requiring the police to take the sample as soon as practicable. This specific purpose, which goes to the admissibility of the sample into evidence, can be distinguished from the purpose of the time limit in the presumption section, s. 258(1)(c). The latter provides a procedural shortcut for the police, but only if the breath or blood sample is obtained within two hours of the alleged offence. As such, it is concerned with the quality of the evidence obtained by the police, rather than its admissibility.

Counsel for the respondent argued that s. 254(3) is meant to prevent breath or blood samples taken long after the fact from being used in evidence, and as such the section must be interpreted as requiring a demand within two hours. This is something of a red herring, as neither the demand nor the formation of a belief controls the timing of the sample. Rather, the sample need only be taken as soon as is practicable after the demand. In other words, even if a demand is made within two hours, there may be long delays in some cases before the sample can practicably be taken. As such, "stale" samples will still be received in evidence no matter which interpretation of s. 254(3) is accepted in this appeal. Of course that does not end the matter, as another provision – s. 258(1)(c) – will govern the use of the sample evidence at trial. [Emphasis added.]

[27] For the following reasons, I disagree with the respondent’s position.

[28] First, the comments made by La Forest J. were obiter as the issue before the court was whether the police needed to form a belief or make a demand within the two-hour statutory window contained at the time in s. 254(3): R. v. Alex, 2014 BCSC 2328, 71 M.V.R. (6th) 228, at para. 36.

[29] This would explain the comments in R. v. Wylie, 2013 ONCA 673, 51 M.V.R. (6th) 1, where the court restored a conviction that had been overturned by a Summary Conviction Appeal judge, holding, at para. 10, that “[a]ll that s. 254(3) requires is that a valid breath demand is made by a peace officer with reasonable grounds to do so and that the demand is made as soon as practicable. There is nothing in the Criminal Code or in the jurisprudence that supports the proposition that the Crown must prove the “who, what, where and when” of the demand”.

[30] Secondly, and more importantly, as can be seen from the passage relied upon by the respondent, La Forest J.’s comments explicitly related to the two-hour limit specified in s. 253(3). That two-hour limit was later statutorily amended to three hours and subsequently eliminated by the 2018 amendments. In other words, the statutory requirement to which La Forest J. tied his comments no longer exists.

[31] In R. v. Guenter, 2016 ONCA 572, 30 C.R. (7th) 317, the Court was more specific about the meaning of La Forest J.’s comments. At para. 89, the Court made the following observation:

Given the close inter-relationship between the operation of s. 254(3) and the need for officers to ensure that a detained person can exercise his s. 10(b) rights in a meaningful way, linking the making of the demand to the timing of the detention has a certain practical attractiveness. But that is not how s. 254(3) reads. As this court held in R. v. Wylie, 2013 ONCA 673, 51 M.V.R. (6th) 1 (Ont. C.A.), at para. 10: "All that s. 254(3) requires is that a valid breath demand is made by a peace officer with reasonable grounds to do so and that the demand is made as soon as practicable. There is nothing in the Criminal Code or in the jurisprudence that supports the proposition that the Crown must prove the 'who, what, where and when' of the demand." Moreover, the larger objective of the Criminal Code's breathalyzer scheme of forcing prompt police investigation was held to be promoted by the three hour limit in s. 254(3): Deruelle, at p. 672. [Emphasis added.]

[32] I have already referred to Mawad, Green and Thompson as examples of binding authorities. It is somewhat ironic that the respondent seeks to distinguish Mawad and Thompson on the basis that they dealt only with s. 258(1) of the Criminal Code but relies on cases such as R. v. Ruck, 2013 ONCJ 527, 53 M.V.R. (6th) 323, and R. v. St. Jean, 2012 ONCJ 378, 35 M.V.R. (6th) 335, where the courts did the same thing.

[33] The respondent also relies upon paras. 56 and 57 of R. v. Koralov, 2022 ONCJ 582. At para. 57, the judge made the following comments:

When Parliament amended the drinking and driving provisions and removed the presumption of identity, they nonetheless left in place the requirement that the police require the accused to provide a sample as soon as practicable. The rules of statutory interpretation dictate that this requirement must have some meaning. If indeed this requirement did mean what Andre J. and Wright J. held it meant, it must now have a new meaning. After all, Parliament could have removed it, but chose not to. Alternatively, Parliament always meant this requirement to mean something other than what Andre J. and Wright J. thought Parliament intended. Either way, it falls on me to decide whether fulfilment of this requirement is necessary for the breath demand to be authorized by statute.

[34] The judge in Koralov decided that he was not bound by Mawad and Green. Instead, he followed other Ontario Court of Justice cases such as R. v. Najev, 2021 ONCJ 427, 87 M.V.R. (7th) 312, and R. v. Tubic, [2021] O.J. No. 4954 in determining that the validity of a breath sample depended on the police obtaining it as soon as practicable.

[35] I fail to see how the removal of a requirement in one section of the Criminal Code silently imbues another section with a completely different meaning. Nor do I understand why Parliament, in enacting amendments designed to simplify the proof of cases alleging an excess of blood alcohol would make it harder to do so. Accordingly, I find Koralov and similar cases to be wrongly decided. There is no requirement that the breath samples be taken as soon as practicable under s. 320.28 of the Criminal Code.

[36] I would also add that notwithstanding any concerns about Mawad and Green, the Ontario Court of Justice is bound by those decisions. A lower court is bound by appellate cases even though it disagrees with the appellate court’s decision: Canada (Attorney General) v. Bedford, [2013] 3 S.C.R. 1101, 2013 SCC 72, at para. 44; R. v. Sullivan, 2022 SCC 19, 166 O.R. (3d) (note), at para. 8o.

[37] In this case, even though Mawad was brought to the trial judge’s attention in submissions, there was no reference to it in her reasons.

[38] Having found that s. 320.28 of the Criminal Code does not impose a requirement that the police are required to take breath samples as soon as practicable or that failure to do constitutes a Charter breach, I would allow the appeal and order a new trial on this ground alone.

[39] For the sake of completeness, however, I will address the remaining grounds of appeal.

WERE THE BREATH SAMPLES TAKEN AS SOON AS PRACTICABLE?

[40] Although I have found that there was no requirement that the samples had to be taken as soon as practicable, I would also hold that if such a requirement existed, the police complied and the judge committed an error by failing to recognise that fact.

[41] It is settled law that “as soon as practicable” means that the tests were taken within a reasonably prompt time under the circumstances: R. v. Vanderbruggen, 2006 ONCA 489, 206 C.C.C. (3d) 489, 29 M.V.R. (5th) 260 (Ont. C.A.), at para. 12. The application of the law to the facts found is, on review, subject to a standard of correctness: R. v. Shepherd, [2009] 2 S.C.R. 527, 2009 SCC 35, at para. 20; R. v. Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65, at para. 18; R. v. Biniaris, [2000] 1 S.C.R. 381, 2000 SCC 15, at para. 23.

[42] I agree with the Crown that the trial judge analysed the police actions by imposing a requirement that the samples be taken as soon as possible rather than practicable. At para. 13 in Vanderbruggen, the Court directed the approach to be taken by a trial judge when determining whether samples were taken as soon as practicable:

In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The “as soon as practicable” requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that — in all the circumstances — the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody. [Citations omitted.]

[43] Here, the judge applied a parsed approach to the way in which the police acted. Despite finding the actions of the officer who arranged the tow to be reasonable, she focussed almost entirely on the printing of the tow card, which took place between 3:33 a.m. and 3:37 a.m. In doing so, the judge erred by failing to consider the bigger picture of whether the breath tests were obtained within “a reasonably prompt time under the circumstances” as a whole.

[44] The entire transaction between the police and the respondent took one hour and twenty minutes from arrest to the taking of the breath sample. It is noteworthy that in Deruelle, La Forest J. when making the comments cited above regarding “as soon as practicable” emphasised the fact that the “two-hour limit in s. 254(3) contributes to the objective of the scheme by forcing prompt police investigation, and by requiring the police to take the sample as soon as practicable”: at para. 15. If the respondent is correct in his suggestion that Deruelle stands for a requirement that police must take samples as soon as practicable, then it must also be the case that the Court acknowledged that samples taken within the two-hour limit fell within that definition as well as permitting the Crown to take advantage of the statutory presumptions.

SHOULD THE SAMPLES HAVE BEEN ADMITTED UNDER SECTION 24(2)?

[45] Finally, assuming there was a breach, the samples should not have been excluded under s. 24(2) of the Charter.

[46] Under the principles set out in R. v. Grant, [2009] 2 S.C.R. 353, 2009 SCC 32, the trial judge was obliged to apply the following three-pronged test to determine whether the breath samples should have been excluded under s. 24(2) of the Charter:

1. The seriousness of the Charter infringing state conduct;
2. The impact of the breach on the Charter protected interests of the accused; and
3. Society’s interests in the adjudication of the case on its merits.

[47] The judge’s reasons excluding the evidence under s. 24(2) were brief and are reproduced as follows:

So there is a section 8 breach. Is it such that the evidence of the breath samples be excluded? For the reasons I’ve just articulated I find it is. Obviously the interaction of his evidence will have a significant impact on Ms. Ridley. As well, it is obviously best for the real evidence to be before the court particularly because the readings are high here. The readings are high, they’re aggravatingly high and I’m saying this for Ms. Ridley’s benefit it’s very serious the readings were extremely serious here. But ultimately the third branch of the test is, and I’ve explained why, tips the balance here and the evidence will be excluded and as such that is the evidence of the breath test will be excluded and count 2 is dismissed as well.

[48] I agree with both parties that the trial judge’s reasons are both confusing and insufficient. There is some merit to the respondent’s argument that the judge’s analysis of the third branch appeared to confuse the second and third branches, and that her conclusion that the third branch “tips the balance” does not accord with her earlier determination that “it is best for the real evidence to be before the court” because of the high readings.

[49] However, contrary to the respondent’s submissions, her previous findings of fact permit a review of the Grant test and its application to the instant facts.

The Seriousness of the State Conduct

[50] Even though the judge was obliged to consider this branch of the test, there is no reference to it in her reasons. Instead, the judge went directly to the second branch of the test. Had she done so, her own description of the police conduct in considering the question of the breach makes it clear that the police conduct after arriving on the scene was “reasonable” and “necessary”. The judge’s only difficulty was with the printing of the tow card and her finding that “that administrative responsibility was that of the sergeant and should not have been something that Officer Novakowsi was concerned about”.

[51] It is trite law that Charter violations sit on a spectrum which ranges from inadvertent errors to wilful or reckless disregard for an individual’s rights: Grant, at paras. 70 – 74. Here, the evidence makes clear that any breach was of a simple administrative nature and clearly fell on the less serious end of the spectrum. This is not a case where “the police engaged in misconduct from which the court should dissociate itself”: R. v. Thompson, 2020 ONCA 264, 62 C.R. (7th) 286, at para. 83.

[52] Accordingly, this limb favours admission.

The Impact of the Breach on the Charter Protected Interests of the Accused

[53] The trial judge erred by basing her conclusions on the consequences of the use of the evidence against the respondent. The question for the judge was how the breach undermined the interests protected by the Charter right: Grant, at para. 76. This analysis required an evaluation of the intrusion on bodily integrity and its impact on the respondent’s Charter rights.

[54] In Grant, at para. 111, the majority concluded:

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. [Emphasis added.]

[55] The second branch of Grant usually favours admission of breath samples: Guenter, at para. 98; R. v. Ndaye, 2019 ONSC 4967, 56 M.V.R. (7th) 137, at para. 85; R. v. Taylor, 2010 ONSC 4850, 1 M.V.R. (6th) 103, at para. 44, leave to appeal refused, 2011 ONCA 681; R. v. Jennings, 2018 ONCA 260, 45 C.R. (7th) 224, at paras. 26 – 33; R. v. Walsh, 2019 ONSC 2337, at paras. 29 – 37.

[56] In the instant case, the breach found by the judge – a delay of four minutes – had no impact on the respondent’s Charter protected rights.

[57] Accordingly, this branch of the test favoured admission.

Society’s Adjudication on the Merits

[58] The evidence is highly reliable and the trial judge’s exclusion of it ended the Crown’s case. As pointed out in Grant, at para. 110:

The third line of inquiry — the effect of admitting the evidence on the public interest in having a case adjudicated on its merits — will usually favour admission in cases involving bodily samples. Unlike compelled statements, evidence obtained from the accused’s body is generally reliable, and the risk of error inherent in depriving the trier of fact of the evidence may well tip the balance in favour of admission.

[59] This branch clearly favours admission.

CONCLUSION

[60] For these reasons, the appeal is allowed, and a new trial is ordered to appear in the Ontario Court of Justice, 10 Armoury Street, Toronto in Courtroom 203 on Friday, 3 November 2023 at 9 a.m.

[61] As the Crown abandoned its argument that the judge’s reasons on the Impaired Driving charge were insufficient, did not argue that the exclusion of the breath samples impacted on that charge, and requested an order only citing the “Over 80” charge, the new trial is only concerned that charge.

S.A.Q. Akhtar J. Released: 23 October 2023