Court File and Parties

Court File No.: Orangeville

Date: 2012-06-21

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Clark Hawkins

Before: Justice J.A. Maresca

Heard: March 29, 2012

Reasons for Judgment released on: June 21, 2012

Counsel:

• Mr. Fetterley, for the Crown
• Mr. Starkman, for the accused Clark Hawkins

MARESCA, J.:

[1] Introduction

On June 1, 2011, Clark Hawkins was charged with operating his motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of his blood. He was also charged under the Highway Traffic Act with driving with an open container of liquor in his motor vehicle. The trial on these charges was heard on March 29, 2012, in Orangeville. At the conclusion of the trial, after submissions were started, the matter was adjourned for further written submissions. Those submissions have now been received. These are the reasons for the Court's decision in the case.

[2] Crown's Evidence

The only witness called by the Crown was that of Acting Sergeant Chalk, who investigated the situation, arrested Mr. Hawkins, and administered both the ASD screens and the Intoxilyzer test. There were no material inconsistencies in Acting Sergeant Chalk's evidence, and he was not shaken in cross examination. For reasons which will be addressed below, I accept his evidence. No evidence was called by the defence.

1: What Happened

A. The Stop

[3] On June 1, 2011, Acting Sergeant Clark was stationed on 5th Line, Melancthan Township, facing northbound, on radar patrol. Just after finishing his stop of a motorist, he notice the defendant's truck, which was travelling southbound on 5th Line, make a U turn a short distance before reaching the officer's car. Acting Sergeant Chalk found this to be suspicious, and followed the truck. He observed it make an immediate left hand turn "..in kind of a slow fashion", and then two other left hand turns, which brought the defendant virtually to the same point at which he made the U turn. Acting Sergeant Chalk did not observe any erratic or aberrant driving on the part of the defendant, but stopped him nonetheless, at 8:52 pm, because he found the defendant's behaviour suspicious.

B. The First ASD Test

[4] Upon stopping the defendant, the officer approached the truck, and asked Mr. Hawkins what he was doing. He also asked him for his driver's licence, ownership, and insurance. He detected an odour of alcohol on Mr. Hawkins' breath, and formed the suspicion that he had alcohol in his system. He made an appropriate demand for an ASD test, which Mr. Hawkins failed at 8:58 pm. He then arrested the defendant for driving "over 80", and read him his rights to counsel. Mr. Hawkins understood those rights, and declined to speak to counsel. The appropriate cautions were also read.

C. The Second ASD Test

[5] Mr. Hawkins asked the officer to get his cell phone from his truck. When Acting Sergeant Chalk retrieved the phone, he noticed an open can of beer in the back seat cup holder of the truck, which was three quarters full and still very cold. At that point, he suspected that the defendant had consumed alcohol within 15 minutes of the first ASD test. Realizing that recent consumption of alcohol could impact the results of the ASD, he decided to re-administer the test, which he did at 9:12 pm. The Officer describes the results as follows: "He registered the result of a fail and again I confirmed that – that – that – that [sic] my reasonable grounds to believe that Mr. Hawkins was operating a motor vehicle with a blood/alcohol concentration that exceeded 80 milligrams of alcohol in 100 millilitres of blood..." [emphasis mine].

[6] Acting Sergeant Chalk then drove Mr. Hawkins to the detachment. He did not re-arrest him, re-read him his rights to counsel, nor did he re-caution him. In the officer's words, "His arrest had never changed and his jeopardy had never changed".

D. The Intoxylizer Test

[7] Acting Sergeant Chalk arrived at the detachment with Mr. Hawkins at 9:29 pm. Mr. Hawkins was secured, and the officer, who was also a qualified breathalyser technician, prepared the Intoxylizer 8000C. He determined that the machine was in proper working order. At 9:39, Mr. Hawkins was brought into the breath room, and was asked whether he had had a reasonable opportunity to speak with counsel. He indicated that he did not want to speak with a lawyer, either of his own choosing or duty counsel. Mr. Hawkins provided two suitable samples, yielding BAC results of 181 at 9:45 pm and 177 at 10:04.

2: The Issues With Respect to the Charge of "Over 80"

[8] Three issues were raised by the defence, one a non-Charter issue, and two Charter issues:

1. Was the initial demand, made after the first ASD test vitiated by the fact that the ASD test was re-administered? If so, was a demand that Mr. Hawkins provide suitable samples of his breath into an Intoxylizer machine made as soon as practicable, given that there was no additional demand made after the second ASD test until just before the Intoxylizer test was administered?

2. Were Mr. Hawkins' Charter rights under s. 10(b) violated in that he was not given his rights to counsel a second time, prior to the second ASD test?

3. Were Mr. Hawkins' Charter rights violated when he was followed by Acting Sergeant Chalk and stopped because the Officer thought his actions were "suspicious"?

[9] If the answer to either issue 2. or 3. is yes, the question remains as to whether the evidence of the BAC readings ought to be admitted, despite the Charter violation, under the analysis set out in R. v Grant.

First Issue: the Demand

[10] The defence takes no issue with the fact that a proper ASD test was administered to Mr. Hawkins, and that after that first test, a proper demand was made pursuant to s. 254 (3)(a)(i). The defence argument is that once Acting Sergeant Chalk saw the open can of beer in the defendant's truck, and was concerned that the first ASD might not be reliable due to the presence of mouth alcohol, the demand already made was no longer valid. He argues that once the officer was concerned that the first ASD test was possibly unreliable, the initial demand was vitiated. He submits that once a second ASD test was conducted, the requirement of s. 254 could only be met by a fresh demand. I disagree.

[11] The fact that the officer was alive to the possibility that the presence of mouth alcohol could have affected the first ASD readings does not mean that he no longer had reasonable and probable grounds to believe that Mr. Hawkins had committed an offence under s. 253. The ASD readings from the first test were not invalid because the officer decided to administer a second test. If Mr. Hawkins had passed the second test, it would have been clear that the presence of residual mouth alcohol made the first reading unreliable. At that point, the officer would no longer have had reasonable and probable grounds to make the demand. The fact that the second ASD also registered a fail merely confirmed the reasonable and probable grounds he had already formed. There was no need to make a new demand.

[12] Acting Sergeant Chalk was careful throughout to make sure that Mr. Hawkins knew exactly what was happening and why. He explained to the defendant exactly what his concerns were, and why he felt it prudent to conduct a second ASD test. It was clear from his testimony that Mr. Hawkins was in no doubt as to the jeopardy he faced at all points in time.

[13] The question that arises with respect to this first issue must be answered as follows: the demand made after the first ASD test was sufficient to satisfy the requirements of the section.

Second Issue: Mr. Hawkins' 10(b) Charter Rights

[14] There are two components to this issue. The first is Mr. Hawkins' argument that once the officer determined that a second ASD test was required, the necessity to ensure that he understood his right to counsel was again triggered. He submits that the officer's evidence that the investigation "took a new direction" once he discovered the open can of beer supports the contention that Mr. Hawkins was entitled to have his rights to counsel read to him again prior to the administration of the second ASD test. With respect, I do not view the evidence in that way. From a reading of the entire testimony of Acting Sergeant Chalk, it seems clear that the "new direction" he referenced was that a second ASD test would have to be administered. There were no "new procedures" triggered, as was the case in R. v Sinclair (2010), S.C.R. 310 (SCC). The second ASD served only to confirm the procedures already explained to Mr. Hawkins. With respect to the s. 253 charge, there was no break in the investigation; indeed, it was clear to Mr. Hawkins at all times that he was in jeopardy with respect to the "over 80" charge. That jeopardy never changed.

[15] In my view, the fact that Mr. Hawkins was placed under arrest and read his rights to counsel with respect to the s. 253 charge does not trigger his s. 10(b) Charter rights with respect to the second ASD test. There does not appear to be any reason to take this case out of the analysis set out in R. v. Bernshaw [1995], S.C.R. 254 (SCC), where the Court held that the right to counsel was not triggered by the necessity for a second ASD test due to concerns about mouth alcohol. This aspect of the defence submission must fail.

[16] The second component of this issue is whether Acting Sergeant Chalk's evidence should be believed when he testified that Mr. Hawkins declined to speak with a lawyer when his rights to counsel were read to him. In his evidence, the officer stated that he made note of the fact that he read rights to counsel to Mr. Hawkins at 9:00 pm and that Mr. Hawkins confirmed that he understood those rights. He went on to say that he asked the defendant whether he wished to speak with a lawyer, and noted the response as "Am I going to jail?". There is no mention in the officer's notes as to whether Mr. Hawkins expressly refused to speak with counsel. When cross examined on this point, Acting Sergeant Chalk was very clear that he recalled Mr. Hawkins specifically saying that he did not want to speak with a lawyer, including duty counsel. The officer said: "I – I do recognize the importance of writing it down, but I also, and testifying under oath, that [sic] I have an independent recollection of him telling me that he did not want a lawyer and he did not want duty counsel.....the reason why I didn't is I failed to document it. Absolutely......I failed to write it in my notes, yes."

[17] Reference was made to the case of R v Zack, [1999] O.J. No. 5747 (Ont. C.J.) a case decided by Justice Duncan of this Court, wherein the Court said:

"The failure to note these observations is a serious omission and, as I have noted to counsel, it cannot be accepted. If it was even an acceptable explanation, in this day of full disclosure it cannot be an acceptable explanation for a police officer to say 'I did not note it because I would remember it' ".

[18] The explanation of the officer in the Zack case was a justification of why he had not recorded something in his notes. That is not the case here. Zack is often cited for the proposition that if information is not in the officer's notes, it did not happen. Justice Duncan himself, however, stressed in R. v. Golubentsev [2007] O.J. No. 4608 (Ont. C.J.) that Zack did not stand for that proposition. Acting Sergeant Chalk did not attempt to justify his omission. He openly admitted that it was a mistake not to note Mr. Hawkins declining to speak with counsel. He did give evidence describing how he explained the right to counsel to Mr. Hawkins after the defendant asked "Am I going to jail?", and how he satisfied himself that Mr. Hawkins indeed did not wish to speak with a lawyer. I am satisfied that the officer was telling the truth when he gave that evidence.

[19] I also note that Mr. Hawkins was given rights to counsel again prior to the administration of the Intoxilyzer test, and that he again declined to speak with counsel or duty counsel. Accepting the evidence of the officer as I do, this part of the second issue must also fail.

Third Issue: The Stop

[20] While Acting Sergeant Chalk testified that there were, generally, a large number of break and enter offences committed in Dufferin County, he admitted that he did not in fact stop Mr. Hawkins in the investigation of any such offence: "It's throughout Dufferin County we have break and enters. I can't say directly that that was a problem spot. That's not what I was there for doing, I was actually conducting radar patrol on the 5th Line". The officer testified that it was the U turn made by Mr. Hawkins that caught his attention, and it was the reason he followed the truck. He decided to stop the defendant after he subsequently made three left hand turns in a row, bringing him back to where the officer initially observed him. He pulled the defendant over because he wanted to find out why he did that.

[21] The Crown argues that the analysis of the Court in R. v. Dhuna 2009 ABCA 103, [2009], A.J. No. 273 (Alta. C.A.) is applicable in this case. In Dhuna, an officer looking for a stolen vehicle in a residential area at 1:30 am saw a car make an evasive move when a marked police car went by, and then a second evasive move when another marked police car passed. Before the officer could pull the car over, it stopped in front of a residential building, and the driver and a passenger walked toward the front door of a residence. The officer stopped the pair, and as a result, eventually found a quantity of drugs and weapons. The Alberta Court of Appeal ruled that the stop was not a breach of the defendant's s. 9 Charter rights:

"The trial judge's finding as to the purpose of the stop is entitled to a high degree of deference. He found that the purpose of the stop was to check the vehicle registration. He deliberately emphasized this finding in his reasons. Detention for that purpose is authorized under the TSA. " [emphasis added]

[22] The facts in the case at bar are significantly different than those in Dhura. As noted above, the officer's only reason for stopping the defendant was to find out what he was doing. He did not make a traffic stop to investigate a violation of the Highway Traffic Act; nor was he able to articulate any reason for the stop other than his curiosity. As the Court stated in R. v. Heiber [1995], O.J. No. 4011 (Ont. S.C.J.),

"I agree with the conclusion that the power of the police to stop vehicles on a random basis for the purpose of enforcing motor vehicle related laws as enunciated in Ladoucer and Wilson is limited to bona fide stops made for those purposes and may not be invoked as an ancillary collateral justification for what would otherwise be an unauthorized stop".

[23] In my view, on the facts of this case, Acting Sergeant Chalk's stop was not objectively reasonable. There was nothing wrong with Mr. Hawkins' driving. He was not stopped because of an infraction of the Highway Traffic Act. He was not being investigated as a result of a specific suspected offence. He was stopped on a hunch. Whether that hunch turned out to be a good one or a bad one, it is not sufficient grounds to stop a vehicle.

[24] I find that Mr. Hawkins' Charter right under s. 9 was breached.

3: Should the BAC Readings Be Admitted Despite the Breach?

[25] In deciding this issue, I turn to the analysis set out in R. v. Grant 2009 SCC 32, [2009], S.C.J. No 32 (SCC).

The Seriousness of the Charter Infringing State Conduct

[26] Acting Sergeant Chalk was not acting in bad faith when he stopped Mr. Hawkins; he felt justified in making the stop on a hunch. There is no evidence to suggest that he knew his actions violated Mr. Hawkins' Charter rights and proceeded despite that knowledge. This supports admissibility of the evidence.

[27] On the other hand, the officer ought to have known that a random stop based on a hunch was not constitutional. As the Court stated in R. v. Sergalis [2009], O.J. No. 4823 (Ont. S.C.J.)

"It is plain that there was no justification for the detention of Mr. Sergalis; any reasonable police officer, particularly one with eight years' experience, would know that he was not clothed with authority under section 48 of the Highway Traffic Act .....While P.C. Henderson's conduct does not go so far as to be 'wilful or flagrant' or 'deliberate', ignorance or negligence undermines good faith in the sense in which the term is understood by the Court in Grant .... "

[28] The admission of evidence gathered in the face of an officer's apparent ignorance of an individual's Charter rights would tend to bring the administration of justice into disrepute. In my view, this branch of the Grant analysis mitigates against the admission of the BAC readings.

The Impact of the Breach on the Accused's Charter Protected Rights

[29] A motorist has a reasonable expectation that his liberty will not be interfered with lightly. He has the right to be free from interference by the State unless there are objectively reasonable grounds to interfere. As the Court set out in R. v. Harrison [2009] S.C.R. 34 (S.C.C.):

"Being stopped and subjected to a search by the police without justification impacts on the motorist's rightful expectation of liberty and privacy in a way that is much more than trivial...."

In my view, while the impact on Mr. Hawkins' Charter protected rights was not egregious, it was not trivial. This branch of the test weighs in favour of exclusion of the evidence.

Society's Interest in Adjudication of the Case on its Merits

[30] There is no doubt that society has a great interest in the adjudication of drinking and driving cases on their merits. Driving while intoxicated has potentially horrific consequences for both the driver and others on the roads. This certainly militates in favour of admission of the evidence.

[31] In balancing all of the above factors, it is my view that the complete lack of objective grounds to stop Mr. Hawkins, and the consequent breach of his Charter rights, must result in the exclusion of the evidence of his BAC readings. Thus, the Crown is unable to prove an essential element of the over 80 count.

[32] An acquittal will therefore be entered with respect to the "Over 80" charge.

4: The Charge of Having an Open Container of Alcohol in The Truck

[33] No submissions were made by either Crown or defence with respect to this charge. In my view, the reasons above with respect to violation of Mr. Hawkin's Charter rights are equally applicable to this offence. The evidence related to this charge will also be excluded.

[34] An acquittal will be entered with respect to the charge of driving with an open container of alcohol in his truck.

Released: June 21, 2012

Justice J.A. Maresca

Footnote

[1] Neither the Crown nor the Defence made any submissions at all with respect to the Highway Traffic Act charge of having an open container of liquor in the car. It seems to me that the issue of the defendant's right to counsel with respect to that charge is much more problematic than for the charge under s. 253 of the Criminal Code.