Court Information
Ontario Court of Justice Central West Region Brampton, Ontario
Parties
Between:
Her Majesty the Queen
-and-
Julie Mason
Reasons for Judgment
Before: Duncan J.
Counsel:
- A Fedak-Tarnopolsky for the Crown
- T McDonald for the defendant
1. The Charge and Defence
The defendant is charged with exceed 80, offence date April 12, 2012. Her defence focuses on the roadside screening test that led ultimately to the obtaining of breath samples that betrayed 160 mgs of alcohol in 100 millilitres of her blood. Specifically, it is argued that the demand for the ASD was not supported by reasonably grounded suspicion. Further, it is argued that the ASD result should not have been accepted as reliable since the defendant was permitted to smoke while, or just before, she provided the roadside samples.
The Grounds for the ASD Demand
Paragraph 2
At around 1:17 am, PC Brar was responding to another call when he noticed a car driving in front of him swerve across its lane about three times. He decided to stop it to check the driver's sobriety. When he approached the vehicle and the window was rolled down he could smell smoke and a faint odour of alcohol coming from the vehicle containing the driver (the defendant) and a male passenger. He further testified that when the defendant exhaled her cigarette smoke he determined that the odour of alcohol was coming from her breath. On the basis of the driving and the odour of alcohol, he gave the ASD demand at 1:19.
Paragraph 3
In cross-examination it was revealed that the purported observation of the smell coming from the defendant's breath was not in the officer's notes. Further, the notes described the driving in such a way as to leave the impression that there was only one swerve seen, rather than three. Finally, the defendant testified on the voir dire that there were no swerves at all and that her driving was fine (as was her condition).
Paragraph 4
I regard the omission from the notes with respect to the breath odour as significant and I am not prepared to accept the officer's evidence on that point: see R v Zack [1999] OJ No 5747. The note re the number of swerves is less significant but similarly I am not prepared to accept the evidence that there were three swerves. On the other hand I do not accept the defendant's evidence that there were none. Clearly something brought the defendant's driving to the officer's attention that was important enough to deflect him from his original course of responding to another call.
Paragraph 5
In sum, I find that the ASD demand was based on a suspicion grounded in one swerve and a smell of alcohol coming from the vehicle with two occupants.
Reasonable Grounds to Suspect
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The Code provides:
254(2) If a peace officer has reasonable grounds to suspect that a person has alcohol…in their body and has within the previous three hours operated a motor vehicle, he may, by demand ….
Paragraph 7
In R v Kang-Brown 2008 SCC 18, [2008] 1 SCR 456 the Court discussed the threshold standard of justification for a police dog sniff-search for drugs of a person and his bag in a public bus terminal. The plurality of the Court, per Binnie J held that such search was justified if there existed "reasonable suspicion", which he defined as follows (para 75):
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]
Paragraph 8
In short, suspicion is a belief in a mere possibility of criminal activity; a reasonable suspicion is one that has some objective facts to support it, as opposed to some purely subjective hunch or gut feeling. In Kang-Brown Binnie J went on to hold that the suspicion in that case was not reasonable or objectively supported because it was substantially if not solely based on the fact that the defendant made repeated eye contact with the officer. The Court pointed out that the exact opposite – avoiding eye contact – had also been used to support suspicion in other cases. Accordingly, making eye contact was not logically probative or indicative of anything.
Paragraph 9
By contrast, the smell of alcohol is indicative of the presence - and therefore possible consumption - and therefore presence in the body - of alcohol. The odour of alcohol on the driver's breath is sufficient to support the required suspicion: R v Lindsay (1999), 134 CCC 3d 159 (Ont CA). The odour of alcohol coming from within a vehicle with the driver being the sole occupant is also sufficient: R v Pozniak infra; R v Kokkinakis [1999] OJ No 1326 (CJ). The next question is whether the smell of alcohol coming from a vehicle with more than one occupant is a sufficient basis for reasonable suspicion in relation to the driver. Much of the able argument of defence counsel in this case was directed to this point and there are a number of decisions that support his submission. To mention only the Ontario cases: R v Marchione 2013 ONSC 569; R v Rasheed 2009 ONCJ 41; R v White 2008 ONCJ 437; R v Pozniak [2008] OJ No. 687; R v Rodrigues [2005] OJ No. 1551. There are undoubtedly others. None of these decisions is binding upon me and, with respect, I take a different view.
Paragraph 10
First, it seems to me that the reasoning, either express or implied in these cases is encapsulated in this passage from Rodrigues para 13:
The officer, in order to objectively form a reasonable suspicion, would be obliged to eliminate the possibility that the odour came from the passenger, or to determine that the odour came from both the passenger and the accused before he could reasonably suspect that the accused had alcohol in his body.
Paragraph 11
But the Court of Appeal in R v Bush 2010 ONCA 554, [2010] OJ No. 3453 made it clear that this reasoning is not appropriate in the context of assessing reasonable and probable grounds for an Intoxilizer demand. There the summary conviction appeal court judge reversed the trial judge's finding that grounds existed by reasoning that many of the indicia relied upon by the trial judge were also consistent with the effects of the accident in which the defendant had been involved. Therefore, the lower Court reasoned, those indicia should have been ignored in the assessment of grounds because there could be other explanations. (para 50) On appeal by the Crown to the Court of Appeal, the conviction was restored, the Court holding:
…. that there might be another explanation for some of the factors the officer properly took into account in forming his opinion of impairment to drive did not eliminate the indicia or render them unreliable.
Paragraph 12
The Bush decision must, a fortiori apply to the lower standard of reasonable suspicion. Accordingly, it is conclusive authority against the reasoning applied in the cases cited above, such as Rodrigues and against the submission urged by counsel for the defendant in this case. That a smell of alcohol coming from a confined space that includes the driver could be attributable to the passenger (or spilled alcohol, or an open bottle) does not deprive it of its ability to support a suspicion related to the driver. If it could be the driver or it could be the passenger, in my view there is a reasonable suspicion in respect of each of them.
Paragraph 13
To require the elimination of other possibilities in my view is to misconstrue the meaning of "suspicion" and to effectively equate it with a standard of "reasonable grounds to believe" – or higher. In fact it approaches the old rule in Hodges case, applicable to proof beyond a reasonable doubt on circumstantial evidence – consistent with guilt and inconsistent with any other rational alternative conclusion.
Paragraph 14
Further, it is well established that the standard for exercise of police powers is flexible and highly contextual: R v Golub, [1997] OJ No 3097 (CA); R v Kang-Brown supra para 49. In my respectful view, the cases relied upon by the defendant do not have sufficient regard to the context of roadside alcohol screening, in which the public interest looms large while the interference with liberty is minimal. The latitude given to police should be expansive and generous. Requiring an officer to locate the probable source of the odour of alcohol coming from inside a car is "contrary to a common sense consideration of how precise an officer can be while sniffing at a window on a dark, cold, windy roadside in heavy traffic" See Kokkinakis supra at para 18.
Paragraph 15
The present case illustrates the implications that would flow from a restrictive approach. It would dictate that the defendant, though ultimately shown to have been driving with twice the legal limit of alcohol in her blood could not have been subjected to roadside screening because of alternative possibilities that the smell of alcohol was coming from her passenger or another alcohol source within the car. I do not think that the legislation should be interpreted in such a way as to invite or compel such a result.
Paragraph 16
In conclusion, it is my view that the smell of alcohol from the vehicle provided the officer with reasonable grounds to suspect that the defendant had alcohol in her body. In addition the single instance of swerving that led to the stop gave further reasonable support to that suspicion.
The Smoking Issue
Paragraph 17
The defendant was smoking when the vehicle was stopped. She continued to hold the lit cigarette during the first two attempts to obtain a sample. She provided a suitable sample on the 5th attempt. It registered a "fail". As I understood the evidence, the defendant remained in the driver's seat of her car throughout the procedure, while the officer held the device outside the car. The officer acknowledged that he understood that smoke or alcohol in the air may affect the result but in this case he felt it did not matter since the device was outside the car. There was no evidence as to whether or to what extent the procedure followed may have affected the resulting reading.
Paragraph 18
In my view, as odd as it was, there was no evidence that the smoking undermined the objective reliability of the test or the officer's subjective belief in its reliability. It therefore was a valid test that could be relied upon to support the further Intoxilizer demand and tests.
Conclusion
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The roadside demand was sufficiently grounded on reasonable suspicion and was therefore authorized by law. The screening test result could be relied upon to justify the further Intoxilizer demand and test. There was no Charter infringement; the results are admissible. All else is proven.
Paragraph 20
The defendant is found guilty.
April 30, 2013
B Duncan J
Footnotes
[1] The Superior Court judgment in Marchione dealt only with the question of exclusion of evidence under 24(2). The trial decision regarding sufficiency of grounds was not re-litigated on appeal. More basically, the issue is one of fact. Other cases have illustrative, but not precedential value: R v Singh [2006] OJ No 5133 (Durno J) at Para 8.
[2] See also Lindsay supra: "the fact that there may be an explanation for the smell of alcohol [on the driver's breath] does not take away from the fact that there exists a reasonable suspicion within the meaning of the section." And see R v Williams 2010 ONSC 1698, [2010] OJ No 1324 (Hill J) - para 44 item 3 …"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"
[3] An expansive interpretation of the threshold requirement would still be a significant restraint on police not found in some countries with similar legal traditions to our own. In Australia, some states have enacted Random Breath Testing (RBT) legislation. Cars are stopped and roadside screening tests are administered immediately without grounds: see paragraph 1 under heading "Objectives" in article found at: http://www.driveandstayalive.com/articles%20and%20topics/drunk%20driving/artcl--drunk-driving-0010--random_breath_testing.htm Several examples of RBT in operation can be seen on YouTube: ex: http://www.youtube.com/watch?v=Qn4UcvPiJA0 These programs were initially controversial: see http://www.walk.com.au/pedestriancouncil/page.asp?pageid=503 but are now accepted as a way of life: http://www.dailytelegraph.com.au/news/national/long-road-but-rbt-is-now-a-part-of-life/story-fndo28a5-1226519897740 There is even a popular reality TV program called "RBT" which follows and goes behind the scenes of the patrols. RBT has proven to be very effective in reducing impaired driving. An Australian might consider Canadian law to be somewhat odd. We permit random groundless stops to check sobriety but do not permit random groundless administration of a simple test to carry out that check.
[4] The onus was on the accused to lead evidence on this point: R v Paradisi, [1998] OJ 2336 (CA). Further, the subsequent breath test results tend to confirm the accuracy of the "fail" reading obtained on the ASD.