Court File and Parties

Court File No.: Regional Municipality of Durham: 998 12 13668 Date: 2013-04-23 Ontario Court of Justice

Between: Her Majesty the Queen — and — Andrew Shayda

Before: Justice J. De Filippis

Heard: April 10, 2013

Reasons for Judgment Released: April 23, 2013

Counsel:

• Mr. P. Murray, for the Crown
• Mr. S. Khehra, for the Defendant

Judgment

De Filippis J.:

[1] The defendant was tried on the charge of having care and control of a motor vehicle at a time that his blood alcohol level exceeded the legal limit. He challenged the relevant evidence on the basis that the breath test results were obtained in violation of his rights under sections 8 and 9 of the Charter of Rights and Freedoms. The trial proceeded by way of a blended hearing. I heard from one witness, Cst. Bowler.

[2] On the evening in question, Cst. Bowler was on routine patrol in a marked police cruiser. At 11:15 PM, he observed a motor vehicle leave a plaza parking lot in the Municipality of Clarington. The officer was aware that there are a number of businesses in that plaza, including the Bittmore Bar and Grill. Having regard to the time, he suspected the driver had been at the bar and he decided to "check for sobriety".

[3] Cst. Bowler followed the motor vehicle northbound on Trulls Rd. for about one kilometre at which point the motor vehicle signalled a left turn into the driveway of a resident. Although the officer had not observed poor or irregular driving, he activated his cruiser emergency lights and also turned into the driveway. The motor vehicle, a Chevrolet Blazer, had come to a stop. Cst. Bowler saw a person exit the passenger door of the car and walk towards the house. Almost immediately after, the defendant exited the driver's door and also began walking towards the home. Cst. Bowler ignored the passenger but told the defendant to stop. He demanded production of licence, ownership, and insurance. The defendant did not have these documents with him. The officer took this opportunity to smell the defendant's breath and detected a "strong odour of alcohol". He also noted the defendant had "brown glossy eyes". In response to questions from the officer, the defendant stated he had consumed a particular alcoholic beverage 40 minutes earlier. On this basis, Cst. Bowler demanded that the defendant provide a sample of his breath into an "approved screening device". This is authorized by section 254 of the Criminal Code. The officer had the roadside device with him and the defendant complied by blowing into it. He registered a "fail". Accordingly, he was arrested for the charge before the court, advised of certain rights, and taken to a nearby police station where a qualified intoxylizer technician obtained samples of his breath. The two tests revealed readings of 110 and 106 milligrams of alcohol in 100 millilitres of blood; that is, over the legal limit.

[4] Cst. Bowler administered the roadside test nine minutes after he saw the defendant leave the plaza. He conceded that the only reason for the test was to check sobriety and that without the test result he could not have arrested the defendant. The officer said that he activated his emergency lights once he saw the defendant signal a left hand turn into the driveway. He explained that he did not record this fact in his notebook because he did not consider it relevant. He insisted that the defendant's admission that he consumed alcohol 40 minutes earlier was made before he demanded a sample of his breath. The officer admitted that the strong odour of alcohol is inconsistent with this admission and added that it did not occur to him at the time and he simply accepted what the defendant said. He denied deliberately ignoring the inconsistency to avoid having to comply with the "15 minute rule" with respect to residual mouth alcohol. In this regard, the officer stated that compliance with the rule would only have required a delay of a few minutes.

[5] The Defence submits that the roadside test results are unreliable and, since this is the only basis for the subsequent breathalyzer demand, the evidence thereby obtained amounts to an unreasonable search and seizure (s. 8 of the Charter). It is also argued that the defendant was arbitrarily detained when the roadside demand was made (s. 9 of the Charter).

[6] There is no question that residual mouth alcohol can cause unreliable test results with respect to an approved screening device and the Intoxilyzer 8000c. Accordingly, it is standard practice to wait 15 minutes before administering such tests where residual mouth alcohol is suspected – as will be the case, for example, if it is known that a person has just consumed alcohol.

[7] In R v Mastromartino, [2004] O.J. No. 1435, the Court of Appeal for Ontario held as follows (at para 23):

In summary, I take Bernshaw, and Einarson to establish the following:

1. Officers making ASD demands must address their minds to whether or not they would be obtaining a reliable reading by administering the test without a brief delay.

2. If officers do not, or reasonably could not, rely on the accuracy of the test results, the results cannot assist in determining whether there are reasonable and probable grounds to arrest.

3. Officers making ASD demands may briefly delay administering the test if, in their opinion, there is credible evidence which causes them to doubt the accuracy of the test result unless the test was briefly delayed.

4. Officers are not required to wait before administering the test in every case where a driver may have been in a bar shortly before being stopped. The mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on the accuracy of the screening device.

5. Whether or not officers are required to wait before administering the screening test is determined on a case-by-case analysis, focusing on the officer's belief as to the accuracy of the test results if the tests were administered without delay, and the reasonableness of that belief.

6. The fact the driver is observed leaving a bar is a relevant circumstance in determining whether it was reasonable for the officer to delay the taking of the test in order to obtain an accurate sample. However, officers are not required to ask drivers when they last consumed alcohol.

7. If the officer decides to delay taking the sample and that delay is challenged at trial, the court must decide whether the officer honestly and reasonably felt that an appropriately short delay was necessary to obtain a reliable reading.

8. If the officer decides not to delay taking the sample and that decision is challenged at trial, the court must decide whether the officer honestly and reasonably believed that he could rely on the test result if the sample was taken without delay.

[8] If the evidence of Cst. Bowler is accepted, it is clear that he turned his mind to the possibility of residual mouth alcohol. This awareness is obviously based on his observation that the defendant had just left a plaza with a bar in it. He testified as follows: "I asked Mr. Shayda if and when he last had alcohol…I asked 'when' because of the 15 minute rule". The Defence claims the officer could not have believed the defendant's answer that it was 40 minutes earlier because of the strong odour of alcohol and deliberately ignored this inconsistency. In any event, it is also asserted this conversation occurred after roadside the test had been conducted. The latter submission is without merit. The officer's question was necessary before he could make the roadside demand and irrelevant after he had obtained the "fail" result. The only issue is whether the officer was entitled to act upon the defendant's statement. He now fairly concedes that there was a basis not to do so but that this did not occur to him at the time. When it was pointed out that the strong odour of alcohol was inconsistent with the statement, the officer testified, "yeah now that you mention it….but that did not occur to me at the time, I just accepted it".

[9] I am confident the officer honestly accepted the defendant's statement at face value. There is no evidence to support the claim that he deliberately ignored the issue. Indeed, the evidence suggests otherwise; the requisite delay would have been a matter of mere minutes. I also find that the officer's subjective belief is objectively reasonable. A strong odour of alcohol can be evidence of recent consumption, but this does not necessarily follow; it can also be indicative of the amount of consumption. In all the circumstances, it was reasonable for Cst. Bowler to act upon the defendant's statement.

[10] In aid of the section 9 argument, the Defence suggests the evidence establishes these facts; that the officer activated his emergence lights after the defendant's car had entered the driveway and the defendant was detained after he exited the car (the latter is not in dispute). This, it is asserted, is like an officer stopping a pedestrian for no reason other than to check sobriety. In any event, the Defence also submits that on the officer's version of events, he had no right to detain the defendant in the driveway because no offence had been observed and he cannot be said to be "continuing an investigation" in the driveway.

[11] In R v Hufsky, [1988] S.C.J. No. 30, the Supreme Court of Canada held that:

In view of the importance of highway safety and the role to be played in relation to it by a random stop authority for the purpose of increasing both the detection and the perceived risk of detection of motor vehicle offences, many of which cannot be detected by mere observation of driving, I am of the opinion that the limit imposed by s. 189a(1) of the Highway Traffic Act on the right not to be arbitrarily detained guaranteed by s. 9 of the Charter is a reasonable one that is demonstrably justified in a free and democratic society. The nature and degree of the intrusion of a random stop for the purposes of the spot check procedure in the present case, remembering that the driving of a motor vehicle is a licensed activity subject to regulation and control in the interests of safety, is proportionate to the purpose to be served.

[12] In R v Ladouceur, [1990] S.C.J. No. 53, the same court held that although a routine check under s. 189a(1) of the Highway Traffic Act constitutes a violation of the protection against arbitrary detention guaranteed by s. 9, it is saved by s. 1 of the Charter. In this context the court noted that:

The crux of the issue is whether the truly random routine check can be "reasonably and demonstrably justified in a free and democratic society". It is at this stage that the delicate balancing process must be undertaken….

There cannot be any serious doubt that the legislation in question deals with a pressing and substantial concern. The statistics paint a depressing picture of the killing and maiming that results from the operation of motor vehicles on the streets and highways of the nation. The evidence filed vividly demonstrates the validity of the pressing and substantial nature of the concern.

[13] In R v Boughen [2002] O.J. No. 4060, the Court of Appeal for Ontario issued the following decision:

The facts of this case, put briefly, are that Constable Walraven was on duty the night of October 24, 1997. Just before 11:00 p.m., he noticed a maroon truck travelling eastbound approaching him. After the car passed, Walraven looked in his rearview mirror and saw that the truck's rear taillights were not on. The constable made a U-turn and proceeded to follow the truck with the intention to stop the truck to investigate the unlit taillights. The officer followed the truck for two-and-a-half blocks. The truck then turned into the Fish and Game Country Club parking lot and Constable Walraven pulled in behind and witnessed the appellant exiting from the driver's side of the truck.

The appellant walked away from the truck and Constable Walraven asked him four times to return to the truck. The appellant asked "What for?" and Constable Walraven said that his taillights were not on. The appellant returned to the vehicle and turned the lights on. During this discussion, Constable Walraven detected a very strong and overpowering odour of liquor on the appellant's breath. When asked how much he had had to drink, the appellant said he did not have to say because he was not driving.

The only ground that was argued in this court was that there was no lawful authority for the officer to detain the appellant at the time he was in the parking lot and thus the detention was arbitrary. The Crown's position was that the detention was authorized under the Highway Traffic Act, R.S.O. 1990, c. H.8 and was not arbitrary. We agree with the Crown's position for the reasons given by the summary conviction appeal court judge as follows:

I do not conclude that the initial detention arose in a context in which legal authorization was absent. Expressed positively, in my view, the Highway Traffic Act permitted and authorized in the circumstances of this case continuing investigation off of the highway onto private property. The particular investigation started with the sole focus of the Highway Traffic Act violation pertaining to the lights and only progressed to a criminal investigation in the context of the continuing Highway Traffic Act investigation. As indicated, I do not find the initial detention to be arbitrary.

[14] The Defence argues that Hufsky and Ladourcer do not assist the Crown because the Highway Traffic Act is not applicable in this case; when the defendant was detained in the driveway, road safety concerns are removed and s. 216 is no longer relevant. In this regard, Boughen is distinguished because the stop in that case occurred in a parking lot, not a private driveway. The Crown submits that Cst. Bowler was unsuccessfully challenged and not contradicted about when he activated his emergency lights. In any event, the Crown argues this was a continuous investigation to check for sobriety and the detention was justified.

[15] It is not disputed that Cst. Bowler was following the motor vehicle to check the driver for sobriety. Section 48(1) of the Highway Traffic Act provides that, "A police officer, readily identifiable as such, may require the driver of a motor vehicle to stop for the purpose of determining whether or not there is evidence to justify making a demand under section 254 of the Criminal Code". Moreover, I am satisfied he activated his emergency lights when he saw the defendant signal a left turn. In this regard, I note that the passenger was allowed to leave without hindrance.

[16] It is reasonable to conclude that Cst. Bowler, suspecting that the defendant had just left a bar, followed his motor vehicle to observe if lack of sobriety affected operation of it. The fact that he did not witness erratic driving does not mean he was precluded from lawfully stopping the vehicle. Having done so and confirming the defendant had consumed alcohol, the officer was authorized to demand that the defendant provide a sample of breath into an approved screening device. It does not matter that this occurred in a private driveway. There is an implied licence to enter a driveway and an otherwise lawful investigation is not barred in such a place: See R v Lotozky, [2006] O.J. No. 2516.

[17] I conclude that the defendant's rights pursuant to section 8 and 9 of the Charter of Rights and Freedoms were not breached and that the motion to exclude evidence should be dismissed. It follows that the defendant is guilty of the offence in question.

Released: April 23, 2013

Signed: "Justice J. De Filippis"