COURT OF APPEAL FOR ONTARIO

DATE: 20000619

DOCKET: C26979

McMURTRY C.J.O., GOUDGE AND BORINS JJ.A.

B E T W E E N :

Adam Steven Boni

HER MAJESTY THE QUEEN

for the appellant

Respondent

and

Thomas Galligan

for the respondent

FRANK TROESTER

Appellant

Heard: June 7, 2000

On appeal from the judgment of Howden J. dated March 3, 1997,

dismissing an appeal from the decision of His Honour Judge Minard

dated May 1, 1995.

GOUDGE J.A.:

[1] The issue on this appeal is whether, on the facts of this

case, s.48 of the Highway Traffic Act, R.S.O. 1990, c.H.8 (Act)

authorized the detention of the appellant by the police.

[2] The appellant argues that the police exceeded their

authority under this section, thereby arbitrarily detaining him

contrary to s.9 of the Canadian Charter of Rights and Freedoms.

As a consequence, he says, the results of the roadside screening

test and the breathalyzer test which flowed from his detention

ought not to have been admitted at his trial and his conviction

for contravening s.253(b) of the Criminal Code should be set

aside.

[3] On May 1, 1995, the appellant was convicted of driving with

an excessive blood alcohol level by Judge Minard in the Ontario

Court of Justice. His appeal was dismissed by Howden J. in a full

and thoughtful judgment, dated March 3, 1997. The appellant comes

to this court with leave granted on May 22, 1997.

[4] The facts of this matter are straightforward. Early in the

morning of March 4, 1994, the police observed the appellant’s car

travelling some 20 km per hour over the speed limit and drifting

back and forth over the centre line of the highway. They stopped

the car and P.C. O’Brien spoke through the open window with the

appellant who was seated in the driver’s seat. While she noticed

that the driver’s eyes were slightly glassy, she was most struck

by the overwhelming smell of cologne emanating from the car.

This, together with the slight cold from which she was suffering,

left her uncertain about whether she could smell alcohol apart

from the cologne and, if so, whether it was coming from the

driver or his passenger.

[5] The appellant was therefore directed to get out of his

vehicle, walk a short distance to the police cruiser, and sit in

the back seat. P.C. O’Brien then immediately became aware of the

odour of alcohol on the appellant’s breath and demanded a breath

sample for the roadside screening test. Only two minutes had

elapsed since the vehicle was stopped.

[6] When the appellant registered a “fail” he was arrested and

charged with operating a motor vehicle having consumed alcohol in

such a quantity that the concentration thereof in his blood

exceeded 80 mg of alcohol in 100 ml of blood. His subsequent

breathalyzer readings were .160 and .170 respectively. The

certificate of analysis showing these readings was admitted at

his trial and the conviction resulted.

[7] Subsection 48(1) of the Act reads as follows:

48(1) 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).

[8] In R. v. Smith (1996), 1996 1074 (ON CA), 105 C.C.C. (3d) 58 (Ont. C.A.)

Doherty J.A. provides a very useful analysis of the scope of the

power given to the police by that section. At p.69 he makes clear

that the section authorizes the police not only to stop a

motorist, but also to take reasonable steps to determine whether

there is evidence to justify making either a demand for a breath

sample for a roadside screening test or a breathalyzer demand. He

went on to say this at p.73:

Section 48 does not set out the specific procedures

that an officer may use under the authority of that

section, and it does not place any numerical limit on

the procedures that may be employed. Instead, as

interpreted in Saunders, [R. v. Saunders (1988), 41

C.C.C. (3d) 532 (Ont. C.A.)] the section authorizes

any procedure or procedures that are both reasonable

and done for the purpose of determining whether the

officer has grounds for making either or both of the

demands referred to in s.254 of the Criminal Code. It

is impossible to provide an exhaustive list of

procedures that will meet these criteria in all cases.

It is, however, safe to say that a procedure cannot

be reasonable within the meaning of s.48 unless it can

be performed at the site of the detention, with

dispatch, with no danger to the safety of the detainee

and with minimal inconvenience to the detainee.

[9] In my view, the steps taken by the officer in this case were

within the authority given to her by s.48(1) of the Act. In the

circumstances, they were reasonable steps taken for the purpose

of determining whether the officer had grounds to demand a breath

sample for a roadside screening test.

[10] The appellant was detained for a very short time. The police

cruiser was close to the appellant’s vehicle, so that the

appellant remained at the site of the stop throughout his

detention. His move to the back seat of the cruiser was for a

good reason, given the powerful smell of cologne in his own

vehicle, the presence of the passenger in the car, and the

officer’s cold. Nor could this move be said to subject the

appellant to more than minimal inconvenience. In all the

circumstances, it was a minimally intrusive detention followed

immediately by the demand for a breath sample.

[11] In the result, the breathalyzer readings consequent upon

failing the roadside screening test were not obtained as a result

of an arbitrary detention. This detention was authorized by law

and the resulting evidence was properly admitted at the

appellant’s trial.

[12]

The appeal must therefore be dismissed.

Released: June 19, 2000 “RM”

“S.T. Goudge J.A.”

“I agree R. McMurtry C.J.O.”

“I agree S. Borins J.A.”