Court File and Parties
Court File No.: Lanark County 1811 998 11110387 Date: 2012-10-22 Ontario Court of Justice
Between: Her Majesty the Queen — and — Allan Davidson Deacon
Before: Justice J. C. Beaman
Heard on: April 17, 2012
Reasons for Judgment released on: October 22, 2012
Counsel:
- Patricia Bowles, for the Crown
- Sean May, for the accused Allan Deacon
Judgment
Beaman, J.: (Orally)
[1] Allan Deacon appears before this Court charged with operating a motor vehicle while his ability to do so was impaired, and having over 80 mg of alcohol per 100 ml of blood in his system. A trial was held with a blended voir dire. My decision was reserved, pending receipt of written submissions on a point of law. This is my ruling.
Circumstances of the Alleged Offence
[2] Around 11:00 pm on the evening in question, Constable Lobinowich, a member of the Ontario Provincial Police, was returning from plain clothes duty in Carleton Place to her detachment in Sharbot Lake along Highway #7, in an unmarked vehicle. While in the passing lane of the highway, she noticed a motor vehicle up ahead in the right hand lane, going in the same direction. She testified that, as it appeared to be speeding, she paced it with her speedometer. She observed the truck's speed to vacillate between 90 and 115 km per hour in an 80 km per hour zone. It was her opinion that the driver appeared to be having difficulty maintaining a consistent speed.
[3] The officer testified that she also saw the vehicle constantly "swaying back and forth", between the shoulder and the centre line, noting that the wheels kicked up some dust when they touched the shoulder. At times, the driver would jerk his truck back from these positions. Because of this driving, she felt that it was unsafe to approach closer than three car lengths. This meant that she was unable to read the plate number, or for that matter, pull him over without emergency equipment. After following him for ten to fifteen kilometres, she requested a back-up unit. She testified that at this point, she did not know whether the driver might be impaired or merely falling asleep.
[4] Constable Nephin had learned from Constable Lobinowich that she was in an unmarked vehicle, following a pickup truck, and that she was concerned about this vehicle's inconsistent speed and weaving. He attended the scene in his marked cruiser. He followed the vehicle for about 500 metres. Within that distance, he noted that the vehicle "drifted heavily over the fog line approximately a foot and then veered back into its lane and then drifted back over onto the centre line". He further particularized this by stating that he could see that the truck's back tire was half onto the shoulder and half on the paved portion of the road. Based upon the information of Constable Lobinowich and his own observations, he was concerned that the driver may be impaired. He activated his emergency lights. The truck pulled over promptly, without incident.
[5] Constable Lobinowich also pulled up behind the suspect vehicle. She approached the passenger side of the truck, while Constable Nephin attended at the driver's door. Through the open window, the female officer noted an odour of alcohol emanating from the inside of the truck. When the driver, Mr. Deacon, exited and walked around the truck to the cruiser, she observed that he was walking abnormally slowly for a person of his age.
[6] Constable Nephin noted the driver to have extremely bloodshot eyes and red eyelids. He detected a strong odour of alcohol on the driver's breath. He was unable to produce the registration or ownership to the truck, as he said that it belonged to his employer. During this conversation, this officer noted that Mr. Deacon's speech was slurred. He volunteered that he was tired. He fumbled for 30 to 45 seconds in retrieving his driver's license from his wallet, although it was plainly visible to the officer. Upon exiting his vehicle, Mr. Deacon walked slowly and deliberately, appearing to require concentration to walk to the cruiser.
[7] Based upon this conversation, his observations of the driving and physical presentation and the odour of alcohol, Constable Nephin formed the opinion that Mr. Deacon's driving was impaired by the consumption of alcohol. He placed him under arrest, read him his rights to counsel, caution and breathalyser demand. Both in the cruiser and at the detachment, the officer continued to note a very strong odour of alcohol emanating from the defendant.
Positions of the Parties
[8] Constable Niceliu, a qualified breath technician, took custody of Mr. Deacon from Constable Nephin. After receiving certain information from him, and re-administering to Mr. Deacon his right to counsel, cautions and breath demand, she retrieved two suitable breath samples from the defendant into the detachment's Intoxilyzer 8000C. These registered 127 and 121 mg of alcohol in 100 ml of blood respectively. As a consequence, he was charged with the above-noted offences.
[9] Defence counsel asserts that the evidence does not support a finding that the arresting officer had reasonable and probable grounds to make the breath demand. Further, through written submissions, counsel states that what grounds there were, were not properly conveyed to the breath technician. Defence counsel takes the position that, because the breath technician made her own breath demand, the law requires her to have her own independent reasonable and probable grounds. As she primarily relied upon the arresting officer's flawed grounds, her demand was, therefore, also invalid.
[10] The Crown maintains that, there were, in fact, sufficient grounds upon which to make the arrest. Although common for the arresting officer to relay his or her grounds to the breath technician, there is no legal requirement to do so. As there is no legal obligation for the investigating officer to relay these grounds, the form of the grounds is moot. That said, Crown counsel asserts that the arresting officer's valid grounds were, in fact, given to the breath technician. Therefore, the subsequent breath samples were properly taken and should form part of the evidence supporting the over 80 charge.
Legal Analysis
[11] Breath testing of an arrested person constitutes a warrantless search. Therefore, section 8 of the Charter requires the Crown to establish that the search for breath evidence was reasonable under the circumstances. The Crown must prove on a balance of probabilities that the officer, both subjectively and objectively, had reasonable grounds to believe that the driver had alcohol or drugs in his system while driving a motor vehicle, and that his or her ability to drive was impaired by this consumption of alcohol or drugs.
[12] The Supreme Court of Canada has interpreted both "reasonable grounds" and its former wording "reasonable and probable grounds" in Baron v. Canada, [1993] 1 S.C.R. 416 at para 43 to mean a "credibly based probability". In considering what must be in the investigating officer's mind when deciding to arrest, the Supreme Court of Canada held in R. v. Bernshaw (1994), 95 C.C.C. (3d) 193 (S.C.C.) at para 216:
[13] Section 254(3) of the Code requires that the police officer subjectively have an honest belief that the suspect has committed the offence and, objectively, there must exist reasonable grounds for this belief.
[14] Chief Justice MacLachlin and Justice Charron, in R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527 expanded upon what the words "reasonable and probable" grounds mean by stating at para 23:
The officer need not have anything more than reasonable and probable grounds to believe that the driver committed the offences of impaired driving or driving over 08 before making the demand. He need not demonstrate a prima facie case for conviction before pursuing his investigation.
[15] Subjective belief relates to an officer's honestly held belief that something has occurred. Based upon the expressed observations of Constable Nephin noted above, he testified that he had "formed the opinion that Mr. Deacon's ability to operate a motor vehicle was impaired by alcohol". From these words, I will infer that he had a subjective belief to that effect.
[16] The objective standard has been defined in a number of past decisions. These cases have concluded that the court considering an officer's actions must be convinced that the information upon which the officer relied had sufficient objective persuasiveness to lead a reasonable person similarly situated to conclude that, more likely than not, the accused had committed the offence (see: R. v. Huddle (1990), 1989 ABCA 318, 21 M.V.R. (2d) 150 (Alta. C.A.)).
[17] The jurisprudence also supports the notion that it is incorrect for a judge to substitute his or her views for those of the officer. If the officer honestly holds the belief, the judge's role is to determine whether it is reasonable. In R. v. Murchison (1990), 56 C.C.C. (3d) 570 (Alta. C.A.) at para 514, the court said:
The important fact is not whether the peace officer's belief, as a predicate of the demand, was accurate or not, it is whether it was reasonable. That it was drawn from hearsay, incomplete sources, or that it contains assumptions, will not result in its legal rejection by resort to facts which emerged later. What must be measured are the facts as understood by the peace officer when the belief was formed.
[18] In R. v. Censoni, [2001] O.J. No. 5189, Justice Hill of the Superior Court of Justice described the requirement, which is both a statutory and a constitutional precondition, as not being an onerous threshold. The court stated, "It must not be inflated to the context of testing trial evidence. Neither, of course, is it so diluted as to threaten individual freedom".
[19] Constable Nephin testified that he formed his opinion that Mr. Deacon was impaired by alcohol upon the following information:
- The information relayed to him by Constable Lobinowich that this driver was driving at an inconsistent speed and was weaving within his lane;
- His own observations that the driver was weaving from the shoulder to the centre line and overcorrecting when he did so;
- That he had extremely bloodshot eyes and red eyelids;
- That he had a strong odour of alcohol on his breath;
- That he spoke with slurred speech;
- That he fumbled in extracting his driver's license from his wallet; and,
- That he walked with a slow, deliberate gait.
[20] Constable Nephin testified that the driver had told him that he had been working all day and was tired. The officer told the court that he took this statement into consideration when he formed his opinion that Mr. Deacon's driving was, in fact, impaired by the consumption of alcohol. I am satisfied that he fairly considered this other possible explanation for the driving and indicia.
[21] I am satisfied and do so find that there were sufficient indicia of impairment present for a prudent officer to, both subjectively and objectively, reach this conclusion.
[22] Defence counsel has asserted that whatever the grounds were that were determined by Constable Nephin were not properly conveyed to the Breath Technician, Constable Niceliu. In reviewing the transcript of the voir dire, there were several instances where the subject of the exchange of grounds from arresting officer to breath technician was canvassed.
[23] For example, on p. 48, with reference to Officer Niceliu, Constable Nephin was asked whether he had any conversation with him. He stated:
Uh, yes, I did. I notified him of the reason Mr. Deacon was at the detachment, and...
[24] Next, in response to the prosecutor's question, "Okay, did you tell him what you've told us so far?", he testified:
Yes, I did. I relayed my grounds....for, uh, arrest.
[25] Continuing down on p. 48, Officer Nephin repeated the fact that he had relayed his grounds to Constable Niceliu, as he turned the defendant over to him in the Breath Room.
[26] This was confirmed in the testimony of Constable Niceliu at p. 81 of the transcript. He stated:
...I then go through the details of asking Constable Nephin, uh, details surrounding the investigation.
[27] A couple of questions later, he specifies what information he received. He said:
Uh, I had the time filled in for myself from the information I obtained from Constable Nephin, uh, time of the offence, location of the offence, was the caution given, was the caution understood, time of the caution, time of the arrest, location of the arrest, reason for the arrest, who provided the Constitutional Rights, was the breath....
[28] Later, he indicated that the reason for the arrest was, "straight impaired operation".
[29] From these quotes, I find that the arresting officer, did in fact, convey some form of grounds to the breathalyser technician. That said, I was left unclear as to how much specific detail was included in this recitation of the grounds for arrest.
[30] The case law supports the preferred practice of having the arresting officer convey his or her grounds to the technician before the breath testing is administered. This does appear to be the usual practice across the province. However, defence concedes in his written submission that the jurisprudence has not made this a mandatory requirement.
[31] For example, the court in R. v. Deschamps [2000] O.J. No. 3086 (Ont. S.C.), determining a Summary Conviction Appeal, held that a breath technician need not be told the grounds for the arrest. The court stated at para 6:
The second ground of appeal is that the breathalyser technician did not have reasonable and probable grounds to demand a breath sample. The appellant maintains that the Officer who stopped the vehicle failed to tell the breathalyser technician of the reasonable and probable grounds she had for administering the roadside screening test and making the demand for a breath sample. The appellant claims the breathalyser technician was therefore without reasonable and probable grounds to demand a breath sample in order to administer the breathalyser test. The validity of the Officer's original demand for the breath sample is not an issue in this appeal. At issue is whether it was necessary for the officer to subsequently relay these grounds to the breath technician. This is unnecessary. The trial judge held that while the Officer who makes the demand must have reasonable and probable grounds to make the demand, that Officer was entitled to delegate the administration of the breathalyser test to someone else.
[32] Further, Justice Armstrong stated at paras 31 to 33 in his decision in R. v. Singh [2005] O.J. No. 5754 (Ont. S.C.) that:
First, although it seems to be the practice for the breath technician to make a breathalyser demand, in my opinion, this is not a legal requirement if the arresting officer has already done so. The law was succinctly stated by Justice Scullion in R. v. Fiolka (1982), 15 M.V.R. 138, (Ont. P.C.) when he said,
Once the arresting officer has made a proper demand, that demand is a continuing one. The accused must accompany the police officer and provide samples of his breath for analysis. The technician's repetition of the demand or evidence of information passed on to him is unnecessary. (authorities cited).
[33] It follows logically from this analysis that, as there is no requirement upon the arresting officer to convey his or her grounds, the quality and content of the grounds, if conveyed, is immaterial. (see also: R. v. Chavez, [2001] O.J. No. 3753) I would venture to add one caveat to this statement. The arresting officer cannot deliberately misstate the grounds, and thereby mislead the breath technician. There is no such evidence that this was the case here.
[34] Defence counsel has raised another issue for this court to decide. This relates to whether, having taken it upon himself to remake the breath demand, the breath technician is required to have his or her own independent grounds for the demand to be valid.
[35] Defence has brought the Court's attention to the decision of R. v. Pavel (1989), 53 C.C.C. (3d) 296 (Ont. C.A.). In that case, the accused had become involved in a motor vehicle accident that involved injuries. An approved screening device demand was made of him, which resulted in a "fail". A breathalyser demand was then made. The Court of Appeal determined that this demand was valid, as it was based upon the fail result on the ASD, which formed the basis for the officer's belief which had been formed within two hours of the driving, as required by s. 254(3)(a). However, the breath test was not taken, as he was complaining of an injury to his chest. Over two hours after the accident, another officer demanded a blood sample from the driver. A further 1.5 hours later, the accused consented to having a blood sample taken, which then revealed that he was over the legal limit.
[36] The Court of Appeal determined that there was no evidence that the second officer had any information as to when the accident occurred. Therefore, he had no grounds for forming a belief that it had occurred within the preceding two hours. Nor was there any evidence that he had formed a belief in that regard.
[37] In my view, this decision is an early attempt by the Court of Appeal to clarify the various responsibilities imposed by the Charter. The use of the word "grounds" to refer to the information concerning the formulation of the opinion as to the perceived timing of the offence is different from what has since come to have been generally seen as the "grounds for arrest". In the Pavel decision, the knowledge as to the timing of the offence is, in reality, a precondition imposed by statute, in order to constitute a valid demand for breath samples. This requirement is different from the commonly understood meaning of the word "grounds", which is more in the nature of reasons for the arrest.
[38] Subsequent to the decision in Pavel, in a case particularly relevant to that before this court, the Ontario Court of Appeal held in its endorsement in R. v. Townshend [2007] O.J. No. 1686 that:
The appellant does not contest that the arresting officer had reasonable and probable grounds to demand a breath sample at the roadside. In our view, that demand was a continuing demand that remained in force until complied with. The fact that there was a subsequent demand made by the breathalyser technician without reasonable and probable grounds and that the appellant refused that demand does not invalidate the earlier demand nor change the character of the appellant's ongoing refusal to comply.
Section 254(3) of the Criminal Code does not require multiple demands. Moreover, in our view, the subsequent demand was no more than a good faith attempt by the breathalyser technician to give the appellant a further opportunity to comply.
[39] Thus, it would seem that the weight of current authority has established that, provided there were reasonable grounds upon which the arresting officer formulated his opinion that the driver was impaired or had an excess amount of alcohol in his system, he need not communicate the details to the breath technician. Should he fail to convey these grounds, or relay an incomplete version thereof, to the breath technician tasked with taking breath samples from the accused, this will not vitiate the original demand. Further, because the breath demand is a continuing one, and the breath technician is acting in an agency capacity for the arresting officer, the breath technician need not formulate his or her own independent grounds prior to demanding breath samples from the accused.
[40] I am satisfied that all of the officers in this matter acted professionally and in good faith. Having reached this conclusion, the fact that Constable Niceliu's observations of Mr. Deacon differed from those of Constable Nephin is not a reflection of either officer's credibility. I am satisfied that this arresting officer did, in fact, have reasonable grounds upon which to make the breath demand. The Crown having demonstrated that the breath demand was lawful, there was no violation of Mr. Deacon's s. 8 Charter rights.
[41] For these reasons, the application for exclusion of evidence is hereby dismissed.
Released: October 22, 2012
Signed: "Justice J. C. Beaman"