Court File and Parties

Court File No.: Brampton 11-8670

Ontario Court of Justice Central West Region

Between: Her Majesty the Queen — and — Luka Krizanac

Before: Justice Richard H.K. Schwarzl

Heard on: April 17, 2012

Reasons for Charter Ruling released on: April 27, 2012

Counsel:

• Ms. Erin Norman for the Crown
• Mr. Brian Starkman for the Accused

SCHWARZL, J.:

CHARTER RULING

1.0: INTRODUCTION

[1] After seeing Luka Krizanac (the "Accused") drive out of a bar in the early morning hours of July 8, 2011, a police officer stopped him and made a screening demand. The Accused complied with the demand and failed the screening test. The Accused was arrested, handcuffed, and delivered to a qualified technician who analyzed samples of his breath using an approved breath testing instrument. The test results showed that the Accused's blood alcohol concentration was in excess of the proscribed limit and he was charged accordingly. The Accused has made an application pursuant to the Canadian Charter of Rights and Freedoms to prevent the Crown from relying upon those breath results at his trial.

2.0: FACTS

[2] On July 8, 2011 P.C. Weatherly was on patrol in the area of the Pure Gold Strip Club, a licensed establishment in Mississauga notorious amongst police officers as a source of drunk drivers. Just before closing time at 1:56 a.m. P.C. Weatherly watched a car driven by the Accused leave the parking lot. After watching the car change direction without signaling, P.C. Weatherly followed the car for a couple of kilometers and pulled it over to check the sobriety of the driver. As the car came to a stop, its tires scrubbed against the curb. The officer testified that he did not feel that there was anything improper about the manner of driving.

[3] On approaching the driver's side of the car, the Accused rolled down his window. When requested to do so, he produced his driver's licence, ownership, and insurance without difficulty. The officer noted that the Accused's eyes were bloodshot and he admitted to having one beer at the Pure Gold bar. P.C. Weatherly suspected that the Accused was operating a motor vehicle with alcohol in his body based on the following: the time of day, seeing the Accused drive away from the Pure Gold bar, the Accused's admission of consuming alcohol, and his bloodshot eyes. P.C. Weatherly then read an approved screening device demand to the Accused who was still seated in his car.

[4] P.C. Weatherly agreed in cross-examination that at the time he made the screening demand, there had been nothing unusual about the driving, there were no problems with the Accused's coordination, his speech was normal, and the officer did not detect the smell of alcohol. P.C. Weatherly acknowledged that prior to making the screening demand, he did not ask the Accused when he had consumed the one beer he admitted to drinking; he said he assumed it had been recently. While the officer also agreed that bloodshot eyes at two in the morning can be caused by other things such as fatigue, the officer maintained that bloodshot eyes are a symptom of alcohol consumption. In re-examination, P.C. Weatherly testified that the Accused did not appear fatigued, nor did he complain that he was.

[5] After making the screening demand, P.C. Weatherly escorted the Accused to his cruiser. Once inside the cruiser, P.C. Weatherly first noticed the odour of alcohol on the breath of the Accused. He then asked the Accused when he finished his beer, to which the Accused replied, "About a minute ago." The administration of the screening test was delayed to ensure there would be no adverse effects of residual mouth alcohol.

[6] After waiting approximately fourteen minutes, the Accused took and failed the screening test. Based on the fail, P.C. Weatherly arrested, handcuffed, and searched the Accused. The officer also made a breath demand and transported the Accused to a police station where he was turned over to a qualified technician for breath testing, the results of which were both over the legal limit.

3.0: ISSUES

[7] There are two issues for me to decide. The first is whether or not P.C. Weatherly's suspicion that the Accused drove with alcohol in his body was reasonable. The second is what remedy, if any, under the Canadian Charter of Rights and Freedoms should be ordered if I find that P.C. Weatherly's screening demand was unlawful.

3.1: Was the officer's screening demand based on a reasonable suspicion that the Accused was driving with alcohol in his body?

3.1.1: Positions of the Parties

[8] The defence submits that by (a) failing to consider all of the circumstances, both pointing towards and away from operating a car with alcohol in the driver's system and (b) not asking the Accused when he had consumed his drink to ensure the consumption was proximate to the driving, the officer "jumped the gun" and denied himself the opportunity to reach a suspicion that was objectively reasonable. The defence submits that if the officer's suspicion was unreasonable, then his screening demand was unlawful thereby making both the screening test and the subsequent breath tests violations of the rights of the Accused to be free from arbitrary detention and to be free from unreasonable searches and seizures. The defence further submits that the detection of the smell of alcohol and the Accused's admission of when he drank after the demand, but before the screening test, were obtained after the rights of the Accused had already been violated.

[9] The Crown submits that despite not smelling alcohol, the officer's suspicion that the Accused was driving with alcohol in his body was reasonable given the time of day, the location, the admission by the Accused that he had been drinking, and his bloodshot eyes.

3.1.2: Applicable Legal Principles

[10] Section 254(2) of the Criminal Code states:

(2) Where a peace officer reasonably suspects that a person who is operating a motor vehicle … has alcohol in the person's body, the peace officer may, by demand made to that person, require the person to provide forthwith such a sample of breath as in the opinion of the peace officer is necessary to enable a proper analysis of the breath to be made by means of an approved screening device and, where necessary, to accompany the peace officer for the purpose of enabling such a sample of breath to be taken.

(emphasis added)

[11] The warrantless seizure of breath samples is presumptively unreasonable. The Crown has the burden of establishing on the balance of probabilities that the seizure was authorized by law. The prosecution is obliged to demonstrate that the officer had reasonable grounds for a demand under s. 254(2) of the Criminal Code and reasonable grounds to arrest the subject and make a breath demand under s. 254(3): R. v. Shepherd, 2009 SCC 35, at ¶15-16; R. v. Collins, 33 C.C.C. (3d) 1 (S.C.C.) at page 14.

[12] The concept of "reasonable grounds to believe" has both a subjective and objective component. The subjective branch is satisfied where the police officer honestly believes the suspect has committed an offence and that evidence of the offence can be seized. Under the objective component, the question is whether the officer's opinion is supported by objective facts. The test is met where a reasonable person in the position of the officer would be able to conclude that there were reasonable grounds for the arrest: R. v. Storrey, [1990] 1 S.C.R. 241 at page 250; R. v. Censoni, [2001] O.J. No. 5189 (S.C.J.), at ¶35; R. v. Bush, 2010 ONCA 554, at ¶38.

[13] "Reasonable grounds to believe" sits on a continuum of standards of proof. It has been described as reasonable probability, a reasonable belief, a fair probability, or the point where credibly-based probability replaces suspicion. It is less than a prima facie case for conviction, proof on the balance of probabilities, or proof beyond a reasonable doubt. It is more than a guess, a hunch based on experience