Court File and Parties

Court File No.: Brampton 11-13547 Date: 2013-01-17 Ontario Court of Justice

Between: Her Majesty the Queen — and — Mr. Christopher Otchere

Before: Justice N.S. Kastner

Heard on: August 23, September 7, 2012

Spoken to on: September 20, November 6, November 26, 2012

Reasons for Judgment released on: January 17, 2013

Counsel:

• Ms. Ann-Marie Calsavara, for the Crown
• Ms. Heather Spence, for the accused Mr. Christopher Otchere

Kastner, J.

1: INTRODUCTION

[1] Christopher Otchere is charged with operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood contrary to section 253(1)(b) of the Criminal Code of Canada.

[2] The trial consisted of the evidence of the arresting officer and the qualified technician. Statements made on video in the breath room were admitted by the Court as voluntary following a brief voir dire. The only issue remaining is the Charter application.

[3] Ms. Spence submits that her client's right to be secure against unreasonable search and seizure pursuant to section 8 of the Canadian Charter of Rights and Freedoms (the Charter) was infringed in this case, as she submits that the officer "jumped the gun" on reasonable suspicion to make the approved screening device demand. As such, the defence submits that the approved screening device testing and subsequent breath analyses taken on the Intoxilyzer ought to be excluded from evidence.

[4] The Crown submits that she has established the officer had both subjective and objective reasonable suspicion that the defendant had alcohol in his system while operating a motor vehicle, and that if her suspicion fell short; it was close to the line. Therefore, Ms. Calsavara submits that the evidence should not be excluded applying the Grant criteria.

2: FACTUAL BACKGROUND

2.1: Evidence of PC Patten

[5] Constable Patten had been with Peel Regional Police for approximately two years when she investigated this matter. On October 30, 2011, she received a radio call dispatching her to the intersection of Bovaird Drive and Torbram Road in the City of Brampton at approximately 8:45 p.m. The dispatch indicated that a minor two vehicle motor vehicle collision had occurred at that intersection, and the complainant believed or suspected the other driver to be impaired. She arrived at 8:50 p.m.

[6] She observed both vehicles in the centre lane for traffic, both facing westbound on Bovaird east of Tomken. It appeared to be a minor rear end collision right at the intersection between the two vehicles with minor rear end damage to the vehicle in front.

[7] The female driver of the first vehicle pointed at Mr. Otchere, stating he was the other driver. The officer had brief conversation with the female driver, but did not note it or recall it.

[8] She then spoke to Mr. Otchere briefly as well. She asked him what had happened and he replied that the female driver had hit her brakes at a green light, and then changed his answer to say that it was a red light. He admitted that he was the driver of the second vehicle and blamed the other driver. She tried asking him further questions, but he was talking over her, and she could "not get a word out".

[9] She may have asked him if he had been drinking, but did not note it. On her driving offence notes, it was noted that the odour of alcohol was absent. The officer explained that when they were outside, she never smelled anything at that time as she maintained a personal distance. She did not go out of her way to ascertain the presence or absence of an odour of alcohol. She stated that "I had formed the suspicion. I did not need an odour. I had enough to be suspicious."

[10] She noted that Mr. Otchere's face was apparently normal. He was cooperative, argumentative and just a little upset. His speech was good, and his balance and walking were sure. His pupils were dilated.

[11] The officer observed that he had extremely bloodshot eyes. He seemed agitated and annoyed, and at that point she formed the suspicion that he had alcohol in his body and gave him "the breath demand".

[12] Constable Patten summarized that her suspicion consisted of the following factors: the accident itself; overly bloodshot eyes (much more than a tired person); that his story kept changing; and he seemed confused. As to the initial dispatched call, she said she did not make a note of it, but obviously heard it. She "did not go into the investigation assuming anything", but based her suspicion on his actions.

[13] In cross-examination, the officer admitted that other conditions other than alcohol consumption may cause red eyes, but insisted his were extreme. She agreed that it is not unusual for drivers in a motor vehicle collision to be angry or emotional. The officer averred that his answer about the colour of the traffic light appeared confused to her, and disagreed with the suggestion that he had said the light was green and turned red.

[14] Constable Patten concluded that "something's not right" when investigating at the scene. She agreed she did not have reasonable and probable grounds for an arrest for impaired driving, but felt there was enough for her to form a suspicion of alcohol in his body as a factor, notwithstanding the absence of an odour of alcohol.

[15] She disagreed with the suggestion she had a "hunch". Her suspicion was based on her belief that alcohol was involved, considering the accident, his confusion about what caused the accident, the time of day (since people drink in the evening), the contradictory story, and the possibility he was changing his story to cover up something. She also said that she had dealt with many alcohol related issues in the past, a lot in the same circumstances, and this also informed her suspicion.

[16] The officer denied ignoring issues other than alcohol consumption as a factor. She stated that even if she did ask if he had consumed alcohol, she considers that anyone could lie.

[17] She did not ask the female driver what her suspicion was based on, since she was busy with the defendant, "right off the hop, I formed my own suspicion. I did not need her to tell me anything".

[18] The officer made the approved screening device demand at 8:53 p.m., within three minutes of her arrival. They were still in the live lane of traffic on Bovaird, which is a major intersection with approximately six lanes. Torbram was a similar size roadway. She said the weather was clear with dry roads.

[19] Constable Patten believed she was the first officer on scene but Constable Forrest had also arrived and he took a witness statement from the complainant and arranged the tow of the vehicle. He may have done the accident report; the officer who did that was not herself.

[20] The approved screening device had been tested by her and was in good working order. Mr. Otchere blew directly into the device at 8:56 p.m., registering an F, or Fail result, which meant his blood alcohol concentration exceeded the legal limit. The device had been calibrated by Police Constable Peel in the Regional Breath Unit on Oct. 23, 2011, and she was aware the instruments are calibrated to register a Fail result for breath samples over 100 milligrams of alcohol in 100 millilitres of blood.

[21] She arrested the defendant for the offence of driving with excess blood alcohol in his system at 8:56 p.m.

[22] The officer read right to counsel and a caution between that time and 9:06 p.m. He said he wished to speak to duty counsel.

[23] At 9:19 p.m., they left to do the breath testing at 21 Division, and arrived at 9:16 p.m. The defendant was lodged in the cells at 9:20 p.m. Duty counsel was called at 9:22 p.m., and returned the call at 9:37 p.m. Mr. Otchere spoke to duty counsel for six minutes, and finished the call at 9:45 p.m.

[24] Constable Patten provided her reasonable and probable grounds for arrest to the breath technician, but did not recall her exact words. She said she relayed the grounds "as were at the roadside". She did not recall telling her anything about what he drank or did not drink. In cross-examination, she agreed that if he had denied drinking she should take it into account in considering her grounds.

[25] The breath testing was complete at 10:36 p.m.

[26] Although she had served certificates on the night of the arrest, she re-served the documents on Jan. 10, 2012.

2.2: Evidence of PC Julie Dwyer

[27] P.C. Dwyer is a qualified breath technician. On Oct. 30, 2011, she was told she was required to do breath tests for the defendant at 9:01 p.m. She arrived at the division at 9:16 p.m., and insured the approved instrument, the Intoxilyzer 8000C, was in proper working order.

[28] At 9:44 p.m., she received and wrote down Constable Patten's grounds before they went on video with the defendant:

She received a radio call for a motor vehicle collision at Bovaird and Torbram in Brampton. It involved two vehicles with minor damage. The complainant advised she believed the driver to be impaired. She spoke to the Accused. He had bloodshot eyes. She asked him if he had been drinking, and the male replied 'no', however the male seems confused and he had rear ended the other vehicle. She formed the suspicion he was operating his motor vehicle with alcohol in his body. She made the approved screening device demand. He blew into the approved screening device, and registered an F. She then had reasonable grounds to believe he had been operating a motor vehicle with alcohol in his body and arrested him for excess blood alcohol, gave him rights to counsel and caution.

[29] At 9:56 p.m., P.C. Patten presented the defendant to her for the purpose of conducting an analysis of his breath. She ascertained that he had spoken to counsel. She observed that he had a smell of alcohol on his breath, that his eyes were bloodshot, red-rimmed and watery.

[30] A voluntariness voir dire was held at trial in relation to statements made by Mr. Otchere in the breath room, and for reasons provided on August 23, 2012, the Court found the Crown had established those statements were voluntary beyond a reasonable doubt. There was no issue alleging any infringement of the right to counsel.

[31] He was asked "what happened tonight?", and he said:

"this lady just braked 'cause it was a green light, she was supposed to go. She stopped when it was a red light. Suddenly my car just hit a little bit. She said, 'bad guy, you are drunk'. I said 'no, just nothing. I am coming from Toronto'. She said 'I will not listen to you. You bad guy'. I said 'madam, no, you call police, I don't mind because it is just a little bit."

"The light changed red, she stopped suddenly. I brake. She have a Honda CRV, so the tire I had just hit, I said 'I will buy you'. She said 'I will charge you $1000'. I said 'no way ma'am'. She said 'you are drunk, bad guys like that'. You can call the police if you want. She said 'this guy is drunk'".

"I coming from Toronto. Just passed Goreway. I travel five minutes from where it happen. .. I went to visit a friend. I eat a lot, salad and things like that, no party, just visit a friend. He injure his leg. I have to go visit him. I hurt my leg four years ago…I work Torbram…a forklift operator, 14 years now, I love my job, straight days, 8 hours."

[32] He was asked if he had been drinking at his friend's home. He said he had nothing to drink at all. He then said he drank Coca Cola, Minras (sp). He explained that Minras is Pepsi and coke and any lime drink together called Minras. He said "here, you guys call it soft drinks. I am from Ghana. He was asked if Minras means pop, and he stated, "Yeah…is good, man, minerals (then spelled many times), yeah…mmmmm".

[33] He said he left his friend's house at 6:45 p.m. or so to go straight home. He spoke about Ghana, and said that he had bought a ticket and was going in December for two months; he has a house there and was waiting for Christmas to go with his wife.

[34] After the two breath samples were received, he asked if "another one is coming?" and the officer told his he was finished, and told him the results of the testing and that he was well over the limit.

[35] Mr. Otchere provided two samples of his breath into an Intoxilyzer 8000C. The first sample was completed at 10:10 p.m., and produced a reading of 118 mg of alcohol in 100 ml of blood. The second sample was completed at 10:34 p.m., and produced a reading of 114 mg of alcohol in 100 ml of blood.

[36] The defence called no evidence on the voluntariness voir dire or the Charter voir dire.

3: ISSUES

[37] The Applicant's counsel's primary position is that she submits that the officer did not either subjectively or objectively hold a reasonable suspicion that there was alcohol in his body while operating a motor vehicle. Ms. Spence submits this is because there was no odour of alcohol on the Applicant's breath when the officer investigated, the collision was a routine fender-bender and not indicative of any markedly poor driving, the absence or ambivalence of other physical indicia of alcohol consumption, and the actual words used by the officer to articulate her suspicion.

[38] Thus she submits that there were no lawful grounds to make the approved screening device demand in section 254(2) of the Criminal Code, and that this infringed his right to be secure against unreasonable search and seizure.

[39] Secondarily, the Applicant submits that the admission of the Intoxilyzer results obtained following the fail result on the approved screening device and the subsequent demand pursuant to section 254(3) of the Criminal Code should be excluded as their admission would tend to bring the administration of justice into disrepute.

[40] The Respondent submits that the officer did hold a reasonable suspicion that there was alcohol in Mr. Otchere's system when she arrived on scene and made certain observations, on both a subjective and objective basis.

[41] Thus, the Respondent submits that the officer's approved screening device demand was lawful, as was the subsequent breath demand.

[42] In the alternative, the Respondent submits that the Applicant has failed to meet the onus in section 24(2) of the Charter, and that the breath results obtained at the station on the Intoxilyzer ought to be admitted.

4: ANALYSIS

4.1: Charter Section 8

[43] Section 254(2) of the Criminal Code permits an officer to make a demand to provide a breath sample into an approved screening device in the circumstances set out in that section; to wit:

If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body, and that the person has, within the preceding three hours, operated a motor vehicle…or had the care or control of a motor vehicle… whether it was in motion or not, the peace officer may, by demand, require the person to comply…with either or both of paragraphs (a) and (b), in the case of alcohol:

To perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and

To provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose. (emphasis added)

[44] The resolution of the issue of whether the approved screening device demand was lawful or not informs the finding of whether the Applicant's Section 8 Charter right was infringed. A lawful demand and results obtained by a properly administered approved screening device are admissible in evidence. A flawed demand fails to comply with the legislative scheme in the Criminal Code and renders any subsequent result an infringement of the Charter.

[45] An assessment of the constitutionality of a search and seizure, or of a statute authorizing the search or seizure, focuses on the reasonable or unreasonable impact on the subject of the search and seizure, and not simply on its rationality in furtherance of a valid government objective.

[46] There is a presumption of unreasonableness where the search has taken place without a warrant. There is, however, no intrusion on a reasonable expectation of privacy where a person is required to submit to the administration of the taking of a breath sample according to law. In this case, the burden rests on the Crown to establish that the demand was lawful, rendering the search reasonable, on a balance of probabilities: see Hunter v. Southam Inc., [1984] 2 S.C.R. 145 and R. v. Haas, [2005] O.J. No. 3160.

4.2: Reasonable Suspicion

[47] Section 254(2) of the Criminal Code frames the parameters for the demand as including "reasonable grounds to suspect" the presence of alcohol in the body.

[48] "Reasonable suspicion" is a much lower threshold than "reasonable and probable grounds to believe". The officer need only reasonably suspect that the driver has some alcohol present in his body. "They need not suspect impairment, nor an illegal blood level": see Kenkel, Impaired Driving in Canada, 2012/13 ed., LexisNexis, at page 10.

[49] I adopt Justice Casey Hill's summary of the contours of the reasonable suspicion standard as follows:

(1) "The reasonable suspicion standard is a pragmatic and balanced response to the realities of modern law enforcement": R. v. Kang-Brown, at para. 166 per Deschamps J., dissenting in the result.

(2) Reasonableness comprehends a requirement of probability: Baron v. Canada (1993), 78 C.C.C. (3d) 510 at 532.

(3) The reasonable suspicion standard has been described as not "unduly onerous" (R. v. Mack, at 554) and "necessarily ...low": R. v. Cahill (1992), 13 C.R. (4th) 327 at 339. It is an intermediate standard: R v. A.M. (2008), 2008 SCC 19, 230 C.C.C. (3d) 377 at para. 60, 82. Because reasonable suspicion "is a less demanding standard than reasonable grounds" (R. v. Bennett (1996), 108 C.C.C. (3d) 175 at 183), it has been correctly observed "that a reasonable suspicion will much more frequently be wrong than will be reasonable and probable grounds": T. Quigley, "Brief Investigative Detentions: A Critique of R. v. Simpson" (2004) 41 Alta. L. Rev. 935, at para. 20. Put differently, the reasonable grounds to suspect standard is a minimal level of belief which does not rule out the possibility of innocent conduct or "other reasonable possibilities": United States v. Gould, 364 F. 3d 578, 593 (5th Cir. 2004).

(4) Binnie J., at para. 75 of R. v. Kang-Brown, observed:

The "reasonable suspicion" standard is not a new juridical standard called into existence for the purposes of this case. "Suspicion" is an expectation that the targeted individual is possibly engaged in some criminal activity. A "reasonable" suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds. As observed by P. Sankoff and S. Perrault, "Suspicious Searches: What's so Reasonable About Them?" (1999), 24 C.R. (5th) 123:

[T]he fundamental distinction between mere suspicion and reasonable suspicion lies in the fact that in the latter case, a sincerely held subjective belief is insufficient. Instead, to justify such a search, the suspicion must be supported by factual elements which can be adduced in evidence and permit an independent judicial assessment.

What distinguishes "reasonable suspicion" from the higher standard of "reasonable and probable grounds" is merely the degree of probability demonstrating that a person is involved in criminal activity, not the existence of objectively ascertainable facts which, in both cases, must exist to support the search. [pp. 125-26]

Writing about "reasonable suspicion" in the context of the entrapment defence, Lamer J. in R. v. Mack, [1988] 2 S.C.R. 903, thought it unwise to elaborate "in the abstract" (p. 965). See also R. v. Cahill (1992), 13 C.R. (4th) 327, at p. 339. However, in Alabama v. White, 496 U.S. 325 (1990), the U.S. Supreme Court contrasted "reasonable suspicion" with reasonable grounds of belief (or, what the U.S. lawyers call "probable cause"):

Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. [p. 330]

See also R. v. Lal (1998), 130 C.C.C. (3d) 413 at 423 (leave to appeal refused [1999] S.C.C.A. No. 28) ("Since the standard for reasonable suspicion is less demanding than that for reasonable belief it can arise from information that is less reliable than that required to show reasonable belief"); R. v. Lewis (1998), 122 C.C.C. (3d) 481 at para. 27 (anonymous informer tip and verification of some details only, falling short of Debot guidelines, nevertheless amounting to reasonable suspicion).

(5) While a reasonable suspicion involves lesser probability than reasonable and probable grounds, it cannot be limited to a hunch or feeling without extrinsic evidence: R. v. Barnes, at para. 16. Accordingly, the standard is not a hunch based on intuition gained by experience (R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 at para. 30) or a well-educated guess: R. v. A.M., at para. 91. An officer's subjective belief must be accompanied by objectively verifiable evidence supporting reasonable suspicion: R. v. A.M., at para. 42, 80.

(6) What is reasonable "by its very nature, must be assessed in context": R. v. Jackpine (2006), 2006 SCC 15, 207 C.C.C. (3d) 225 at 243. The totality of circumstances viewed as a whole must be considered: R. v. Jacques, [1996] 3 S.C.R. 312 at para. 25. Reasonable suspicion "is dependent on both the content of the information provided to the police and its degree of reliability": R. v. Lal, at para. 30; R. v. Bennett, at 181. While the existence of reasonable suspicion is very much a fact-specific inquiry, "it is important that the test laid out in Mack not be applied in a mechanistic fashion. If it is, there is a danger that sight will be lost of the rationale for the defence of entrapment that has been elucidated in that decision": R. v. Benedetti, at para. 19.

[50] The subjective component "amounts to an actual or honest belief": see R. v. Censoni (2001), 22 M.V.R. (4th) 178 (Ont.S.C.J.), at paragraph 34. Although counsel argued that Constable Patten may not have subjectively held a reasonable suspicion of alcohol in the Applicant's body at the time she made the approved screening device demand, a stronger argument was made on the issue of whether it was objectively supported on the facts.

[51] The Court must examine the totality of circumstances to determine if there is objectively verifiable evidence supporting reasonable suspicion, as opposed to a hunch or well-educated guess.

4.3: Application to Facts of this Case

[52] The Court considers on the totality of evidence whether the officer subjectively had a reasonable suspicion that Mr. Otchere had alcohol in his body, and whether that suspicion had an objective basis underlying it.

[53] I propose to deal with the Applicant's arguments in sequence on this issue.

The Absence of an Odour of Alcohol

[54] The smell of alcohol alone coming from a driver's breath is sufficient grounds for a screening device test. In this case, the officer did not note any odour of alcohol on the driver's breath when outside the car prior to making the approved screening device demand. Does the absence of the odour of alcohol prevent the officer from having a reasonable suspicion that the driver has alcohol in his body?

[55] The simple answer is that it does not necessarily negate reasonable suspicion. The odour of alcohol is not a necessary precondition to the making of the screening demand. Several cases present this scenario, and resolve it factually on the circumstances in each individual case; for example:

An officer felt that the Accused 'had to be on something' to account for his poor driving. The officer relied on poor driving; fumbling with a wallet; red rimmed and dilated eyes to justify the demand. He did not detect an odour of alcohol, but suspected that tobacco smoke masked an alcohol smell. The Court found a lack of reasonable objective grounds for the officer's belief that the driver had alcohol in his system.

R. v. Zorakovic [1997] O.J. No.1010 (Gen. Div.), aff'd [1998] O.J. No.2668 (C.A.).

Absence of an odour of alcohol did not render the officer's suspicion objectively unreasonable where there was an admission of drinking.

R. v. Samuels, 2008 ONCJ 85, [2008] O.J. No.786 (C.J.) and R. v. Mutisi (S.C.J).

No signs of alcohol consumption were noted by the officer until after the demand, and the Crown conceded the lack of objective grounds to make the approved screening device demand.

R. v. Trieu, [2010] O.J. No. 4765 (C.J.)

The officer did not note an odour of alcohol on the Accused, and he denied having consumed any. However, he had been speeding, stopped his vehicle at an angle, attempted to smoke a cigarette already burned down to the filter, had slurred speech and bloodshot eyes, and was swaying on exiting the vehicle. Reasonable suspicion was found.

R. v. Defend, [2010] O.J. No. 2406 (C.J.).

The officer detected no odour of alcohol on the Accused's breath at 5:51 p.m., although he said he "had a vodka in the morning and that's it". There was no evidence of irregular driving, slurred speech, unsteadiness or other "common indicators of alcohol consumption". The observations of a sunburned face, slowness and lethargy the officer considered may be consistent with being out on a boat all day in the hot sun. No objective grounds were found by the Court to justify the approved screening device demand.

R. v. Staples, 2011 ONCJ 141 (C.J.) at para.41,42, 50-53.

A Court can consider delay in leaving a stop light, apparent confusion, bloodshot eyes, and slurring of speech as grounds for suspecting the presence of alcohol. While there may be other explanations for having bloodshot eyes late at night, or slurring of speech, that does not remove those factors from consideration in forming a reasonable suspicion.

R. v. Singh, [2006] O.J. No. 5133 (S.C.J.).

See also R. v. Hryniewicz, [2000] O.J. No. 436 (C.A.); R. v. Davis, [2001] O.J. No. 2984 (C.J.); R. v. Stivrins, [2011] O.J. No. 6305 (C.J.); and R. v. Mac, [2008] O.J. No. 1334 (C.J.).

[56] I also am mindful of the Ontario Court of Appeal decision of Wang which held that the absence of particular indicia does not necessarily render the officer's belief unreasonable where other evidence provides an objective basis for the suspicion or grounds: R. v. Wang, 2010 ONCA 435, [2010] O.J. No. 2490.

[57] Similarly, the denial of consuming alcohol, or the driver's assertion of the amount and time of consumption, will be considered by the officer in assessing either reasonable suspicion, or even reasonable and probable grounds in other scenarios, and an officer may be "naturally sceptical" as to the reliability of the driver's account "given any experienced officer's enforcement experience with drinking/driving scenarios".

[58] A police officer is not obliged to accept every explanation of statement provided by an investigatively detained suspect. As was stated in the Mutisi decision, "if a driver claims to have 'had one beer or nothing to drink, the officer was not required to accept what he was told": Bush, at para. 66, 68; Censoni, at para. 47.[at para.28]

[59] As Justice Wright stated in the Defend decision, "while certainly the paucity of some factors, like the lack of alcoholic odour and the denial of consumption are to be considered, their significance will depend on the context of each individual case"(para.31).

The Nature of the Collision

[60] The call the officer was responding to related to a minor motor vehicle collision. Constable Patten knew that before arriving on scene, and observed two vehicles matching that scenario at the intersection she was directed to. Both drivers of the two respective vehicles remained there.

[61] No evidence of any driving of the Applicant preceding the collision was observed by the arresting officer in this case. The complainant from the first car did not testify, nor was her conversation with the officer tendered as part of the reasonable suspicion because the officer neither noted nor recalled it. However, the dispatched call on the police computer referenced the belief or suspicion by that motorist that the Applicant was impaired.

[62] The Applicant argues that such a collision is routine and common and ought not to serve as a consideration for suspicion. While that may be so, it is not as simple as that when investigating any type of collision.

[63] The weather and road conditions were counter-indicative of any causative effect. A trained and experienced police officer would not unreasonably consider that the cause of such aberrant driving to cause a collision may be alcohol-related.

[64] The collision itself indicates that the Applicant rear-ended the vehicle in front of him at an intersection regulated by traffic lights or just after that intersection. Constable Patten felt that the accident was consistent with poor driving on the part of the second driver.

[65] The Applicant himself attempted to explain the accident in such a way that the officer felt he was confused, and further served to augment her suspicion.

[66] The scene was consistent with driving error on the part of either driver, but more likely the Applicant's vehicle, either failing to judge the stopping distance between vehicles, or failing to pay due care and attention to the vehicle in front of him or the colour of the traffic lights.

Other Physical Observations

[67] The Applicant's eyes were very red and bloodshot and his pupils were dilated. Although his speech and balance were not noted to be aberrant, he was agitated, argumentative and appeared confused to the officer.

[68] The fact that there are alternative explanations for some of the observations made by the officer does not detract from the fact that there exists a reasonable suspicion: see R. v. Defend, supra, at para.23.

[69] Justice Durno in a case somewhat analogous on the higher threshold of reasonable and probable grounds, R. v. Bush, 2010 ONCA 554, [2010] O.J. No.3453, commented in dealing with a similar "rush to justice" argument that there is no minimum time period nor mandatory questioning that must occur before an officer can objectively have reasonable and probable grounds (para.60).

[70] The learned Justice noted that a trained officer is entitled to draw inferences and make deductions drawing on experience. A trial judge can take that experience and training into consideration in assessing whether he objectively had reasonable and probable grounds (para.61). In this case, the Court must consider the officer included in the articulation of the reasons for her suspicion her experience in other similar investigations.

[71] The officer is also entitled to rely on hearsay in determining whether she holds a reasonable suspicion or reasonable and probable grounds. In this case, although Constable Patten said that she formed her own suspicion independently and did not rely on the information in the dispatched call, she also remarked that she "had heard it" in cross-examination, and was aware that the caller had suspected or believed the other driver to be impaired. She was entitled to consider that information in the totality of circumstances.

[72] The fact that Mr. Otchere was not displaying gross outward signs of impairment does not speak directly to whether there was a reasonable suspicion he had alcohol in his body. Obviously the more obvious this would be in other cases, the more likely an officer would have reasonable and probable grounds to make the breath demand, as opposed to a demand for testing on the approved screening device.

[73] The officer is required to consider that the absence of indicia may detract from the objective component of reasonable suspicion.

[74] As Justice Hill stated in the case of R. v. Mutisi, 2011 ONSC 6138:

Day-in, day-out, police officers acting on reasonable suspicion, properly administer ASD tests to drivers based on abnormal driving conduct and subsequent admission of alcohol consumption in traffic stops. In many instances, there is otherwise an absence of observable signs of alcohol consumption. Some of these drivers register a pass in the ASD test while others do not. It is unclear to me why, as submitted by the appellant, there must be an observable physiological symptom for there to be a justifiable belief that some alcohol exists in a motorist's body.[paragraph 25]

[75] I agree with the latter observation.

The Evidence of Constable Patten

[76] The Court must look to the testimony of the investigating officer to determine whether she is credible, reliable, and establishes that she had the minimal reasonable suspicion there was alcohol in the Applicant's body at the time of the demand.

[77] The Court finds her credible as a witness, but she at times has difficulty articulating her thought processes.

[78] I am satisfied she honestly believed she had good reasons to suspect the presence of alcohol in Mr. Otchere's body. I will focus more on whether there is an objective basis to her suspicion.

[79] One troublesome aspect of her evidence is the failure to note the conversation she had with the other complainant driver, her failure to recall whether she asked the Applicant if he had been drinking and the failure to attempt to detect the presence or absence of an odour of alcohol emanating from the Applicant.

[80] Constable Patten was not the most experienced officer at the time, although she had undertaken a number of similar types of investigations. She was relatively articulate, but had an inelegant way of speaking. Nonetheless, I listened carefully to her evidence, and considered it as a whole, rather than applying a piecemeal picayune analysis to each turn of phrase.

[81] I note that while she did not recall asking the defendant if he had had anything to drink, she did advise the qualified technician in imparting her grounds for the breath demand, that she had asked him, and he said he had nothing to drink. I expect from her other answers about not having to believe what she is told by a driver, that she did mentally make a note of that response at the time since she related it to the next officer, and she likely weighed its probable falsity as a factor in her consideration.

[82] She was also very candid about not smelling alcohol outside the vehicle, and that she already had her requisite suspicion, so did not feel the need to actively investigate the presence or absence of such an odour. If there was any motive for the officer to obfuscate her reasonable suspicion, I expect she would claim to have smelled alcohol on the driver's breath, as Constable Dwyer later actually noted as her own observation. Her candour enhances her credibility on this issue.

[83] In her efforts to assure counsel and the Court that she did not rush to judgment, the officer short-changed herself. Although she was desirous of independently determining if there was a suspicion of alcohol consumption or grounds to believe the driver was impaired by alcohol, and rightly so, she did hear and consider the original call to service when she began her investigation, and that would have to also be on her mind as she conducted the investigation.

[84] The Court considers that the officer made the comment in cross-examination that she thought "something was not right" about the Applicant. Contextually, I find she was listing for counsel a number of factors contributing to her mindset of suspicion, and that comment ought not to be isolated out of context. She strongly disagreed with the notion she was acting on a hunch.

[85] I accept that the officer subjectively suspected that the Applicant had alcohol in his body at the time of the collision and at the time of the investigation at the scene.

[86] Although the bright line here is somewhat difficult to discern, I am satisfied to the requisite degree of proof that her suspicion was objectively supported in the totality of circumstances and that the approved screening device demand was lawful.

[87] Therefore, I do not find a breach of her section 8 rights.

[88] In the event that the Crown has failed to establish strict compliance with the prerequisites for the demand, I will go on to consider the arguments made for and against the exclusion of evidence.

4.4: Charter Section 24(2)

[89] In R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32 the Supreme Court of Canada set out a three-branch test for exclusion under section 24(2) of the Charter that trial courts must balance, namely (i) the seriousness of the breach; (ii) the impact on the Charter-protected interests of the Accused; and (iii) society's interest in adjudicating the matter on its merits.

[90] Ms. Spence argued that the approach of the Superior Court cases of R. v. Au-Yeung, 2010 ONSC 2292, [2010] O.J. No. 1579 (S.C.J.) Ducharme J., and R. v. Bryce, [2009] O.J. No. 3640 (S.C.J.) Hill J., although binding on this Court, are in conflict on the s.24(2) analysis, and this Court must choose which reasoning to follow.

[91] In the circumstances of this case, and particularly as this Court finds no breach of section 8 in this case, an in-depth analysis of the distinction between those cases is unnecessary; suffice to say that each appellate jurist is predicating their respective analyses on quite different factual underpinnings as to the constitutional breach found in those cases.

[92] With respect to the first branch, I do not find if there is any breach that is that serious. As distinguished by Justice Schwarzl in R. v. Krizanac, [2012] O.J. No. 1911 (C.J.) at para. 23, unlike the case of Au-Yeung wherein it was found that the officer was incompetent based on a systemic malaise in the police department and he had acted indifferently to the rights of the Accused, I find that P.C. Patten was conscientious, well versed in her duties and careful in following that duty. She arrived on the scene with no preconceived opinions. If there was a breach of Accused's rights, it was at the lower end of the spectrum of seriousness and would not favour exclusion.

[93] The cases argued by the Applicant on this branch of the analysis included Au-Yeung, supra, where there was found to be systemic issues on the part of Toronto police; Trieu, supra para. 14, where Justice Brewer found good faith, but an unreasonable ignorance of the law; Staples, supra para. 79, where Justice Brown found the absence of bad faith, but that good faith did not exist; and shoddy police conduct was found in R. v. Stivrins, supra. These cases are factually distinct from the instant case.

[94] In applying the second branch of the Grant test which is to assess the impact of a breach on the Charter-protected interests of the Accused, I agree in part with the reasoning in Au-Yeung, supra that while the taking of breath samples is minimally intrusive, there is a significant impact on the subject's rights where, as here, there is an arrest, handcuffing, and detention at a police station for several hours. On the other hand, I agree also with the reasoning in R. v. Bryce, infra at para.59 to 60 that:

The impact of the police conduct on the appellant's Charter-protected interests is also a fact-specific determination. The impact is examined from the perspective of the accused. The degree of intrusiveness of the unconstitutional action of government agents ranges from impact which might be described as fleeting, transient or technical to profoundly intrusive: Grant, at para. 76; Harrison, at para. 28.

The more serious the incursion, the greater the case for exclusion in order to avoid the public perceiving individual Charter rights as merely second-class or unimportant constitutional protections - a state of affairs which would inevitably negatively affect the repute of the administration of justice.

[95] The roadside screening test itself is brief and minimally intrusive. The arrest follows the fail result. There is no issue in this case about the reliability of the approved screening device calibration or its operation. The fail result provides reasonable and probable grounds for the breath demand and the detention incumbent with that to take the requisite breath samples.

[96] With respect to the third branch of the Grant test, society's interest in the adjudication of the case on its merits favours admission of the breath tests. The evidence is reliable, non-invasive, and necessary to prove a serious offence: R. v. Bryce.

[97] Balancing all of the branches of the Grant test, it is necessary to determine if the overall reputation of the administration of justice, viewed in the long term, would be adversely affected by the admission of the evidence. I find that had there been a violation of the Accused's Charter rights on the circumstances of this case, I would not exclude the breath test results pursuant to section 24(2): see also R. v. Fildan, [2009] O.J. No. 3604 (S.C.J.), R. v. Krizanac, supra.

5: CONCLUSION

[98] After earnest and thorough consideration, the Court comes to the conclusion that Constable Patten honestly held the view subjectively that she suspected that Mr. Otchere had alcohol in his body and had been operating a motor vehicle at the time she made the approved screening device demand to him.

[99] She had in her arsenal of circumstances that she considered a number of considerations: the dispatched call for service which indicated that the complainant suspected that the driver was impaired; whatever brief conversation she had with the other driver which she did not recall and did not note; the minor motor vehicle collision which involved both the complainant and the Applicant; the positioning of the vehicles, which indicated that Mr. Otchere had collided with the other vehicle at the intersection, and was likely at fault; her observation of Mr. Otchere's eyes, which she deemed extraordinarily red and bloodshot; his agitated demeanour; his apparent confusion in answer to her question about what had happened; his pupils were dilated; his seeming confusion and change of answer; and her experience as an officer investigating similar matters.

[100] Constable Patten noted and considered that the Applicant's speech was good, although he was loquacious, and that his balance and walking were sure. I conclude that those features did not allay her suspicion, but was considered in the mix with all of the other circumstances.

[101] While she had not smelled alcohol on his breath when they both were on scene prior to the demand, she believed that alcohol was a factor. In hindsight, of course, she was proven to be correct. He failed the approved screening device test, which is calibrated to detect blood alcohol in the breath. Constable Dwyer, the qualified technician, did smell alcohol on Mr. Otchere's breath when she had dealings with him at the station. He produced the breath readings indicated on the Intoxilyzer. However, subsequently acquired corroborative information is not to be considered when assessing the officer's suspicion, or lack of it, at the time of the demand.

[102] While a purely speculative belief or hunch is not constitutionally or legislatively sound, the officer did consider a constellation or totality of circumstances which tended to support the suspicion she held, and that may be alcohol-related. The totality of circumstances objectively supported reasonable suspicion of the presence of alcohol in the Applicant's body at the time.

[103] Although this case is "close to the line", the Court is satisfied that objectively justifiable suspicion is reasonably supportable on the cumulative basis of the aberrant driving, the conduct of the motorist, the related experience of the officer, and the physical observations. This is so even appreciating that some of the physical indicia were either ambiguous or favourable. Many cases of excess blood alcohol are not accompanied by physical indicia, or marked indicators. Alcohol affects different consumers differently, based on many factors, and tolerance may attenuate outward symptoms of consumption.

[104] The Court concludes that the officer made a valid approved screening device demand, and that there is no infringement of Section 8 of the Charter.

[105] In the event that the Court is not correct in that the balance tips on these facts and that the Crown is deficient in establishing that the officer's suspicion was, although subjectively held, objectively supported, I have considered the application of section 24(2) of the Charter. I would note this case is a very close one to call and that any such deficiency would be minimal since a moment taken by the officer to ascertain if there was an odour of alcohol on the Applicant's breath would render the screening demand constitutionally valid; and there is no evidence of artifice, ruse, pretence or bad faith on the part of the investigating officer.

[106] Applying the balancing exercise mandated by section 24(2) of the Charter, I am mindful of the words of the Supreme Court of Canada in R. v. Harrison, 2009 SCC 34, [2009] S.C.J. No. 34, that such a balancing exercise "is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute".

[107] This case is "close to the line". Considering all the circumstances, the arresting officer honestly believed she had reasonable suspicion to make the approved screening device demand. There is no evidence that the officer deliberately set out to infringe the Applicant's Charter rights, or exercised egregious or abusive conduct. She was at all times professional and courteous to Mr. Otchere, even when he talked over her. The video in the breath room corroborates the care and professionalism of both officers. The seriousness of the breach is attenuated in the circumstances of this case.

[108] Any such breach, while serious, did not impact the Applicant unfairly, as the officer would have been able to discern an odour of alcohol on his breath had she taken a moment to have him sit in her cruiser away from the outside air, which would be constitutionally permissible and render the approved screening device demand lawful. The consequences which followed of the approved screening device test, the breath demand, and the period of detention in the police station would inevitably follow as they did in this case.

[109] The breath testing procedure itself was "minimally intrusive". See also R. v. Grant at paragraph 111 that: "...[W]here 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."

[110] Societal interest favours admission of the evidence.

[111] Weighing all of the factors in a post-Grant analysis, the Charter violation here is not egregious, the intrusion to personal privacy, bodily integrity and dignity is less, the impact on the detainee is not severe, and societal interest in admitting reliable evidence such as breath testing is high.

[112] As Justice Lack stated in R. v. Griffin, [2012] O.J. No.1646 (S.C.J.), "It is difficult to see how reasonable members of society would think less of a justice system that admits evidence of breathalyzer readings rather than excludes them when a judge second-guesses a frontline police officer acting in good faith albeit imperfectly" (para. 37).

[113] The breath tests taken by Constable Dwyer on the Intoxilyzer will be admitted into evidence.

Released: January 17, 2013

Signed: "Justice N.S. Kastner"