Court File and Parties

Court File No.: Halton Region, Central West Region 12-2626

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Sally O'Shea

Before: Justice Alan D. Cooper

Heard on: May 14 & June 13, 2013

Reasons for Judgment released: August 15, 2013

Counsel:

• Emily L. Roda for the Crown
• Peter S. Dotsikas for the accused Sally O'Shea

Case History

[1] On August 24, 2012, at 3:49am, Sergeant Paul Craig of the Halton Regional Police Service was driving his police car eastbound on Upper Middle Road in Oakville, and was just approaching Trafalgar Road. A white Mercedes car driven by Ms. O'Shea was coming northbound on Trafalgar at a high rate of speed. The car did not stop right away for the traffic light and went one car length beyond. Then the car went westbound on Upper Middle Road, and the officer turned his car around and eventually stopped the defendant.

[2] Ms. O'Shea had to look through her wallet three times before locating her driver's licence and the officer asked her how many drinks she had "tonight." She said she had two glasses of wine in southeast Oakville. This was 3:53am. At that time, officer Craig formed a reasonable suspicion that she had alcohol in her body, and decided to have her submit to a roadside screening test. He testified that his reasonable suspicion was based on the speeding at the intersection and the admission of the consumption of alcohol. No impaired driving charge was laid, and he agreed that the defendant had no motor skill problems, no slurred speech, and no odour of alcohol on her breath.

[3] Not having a testing device with him, officer Craig requested one over the police radio. Officer Brett Yates and Jason Briand were nearby and arrived at 3:55am with the machine. At this point in time, officer Craig turned the investigation over to these two officers, because he was acting as a road supervisor, and his services were needed elsewhere.

[4] Officer Jason Briand has been on the Halton force since 2002. He was acting as a coach officer to officer Brett Yates. Officer Craig told Briand that the defendant had admitted drinking two glasses of wine. He formed the reasonable suspicion that she had alcohol in her body, but decided to let officer Yates make the screening device demand.

[5] After Yates made the demand, the test was taken by the defendant and a fail was registered on the device at 4am. Yates then arrested Ms. O'Shea for operating a motor vehicle after having consumed alcohol in excess of the legal limit. Briand said he was not present when Yates made the Intoxilizer breath demand to the defendant in the police cruiser. At 4:08am, the two officers and Ms. O'Shea left for the 20 Division police station in Oakville.

[6] In cross-examination, officer Briand testified that although the screening device had been properly calibrated, he did not know the serial number of the machine, and it was not tested before Ms. O'Shea blew into it.

[7] Officer Brett Yates joined the Halton force in 2012, and had been working for approximately six months at the time of this incident. Officer Briand was his training officer. In his testimony he said that officer Craig told him that the defendant's car had braked suddenly in the middle of an intersection, and that she admitted drinking two glasses of wine at Jonathan's Restaurant in Oakville. Because of this, he gave evidence that he formed the suspicion that she had alcohol in her body, and at 3:57am, he read the screening device demand to Ms. O'Shea.

[8] Officer Yates witnessed officer Briand conducting the screening device test, and witnessed the defendant's failure, and then arrested her for the "over 80" offence. Ms. O'Shea was then handcuffed, searched, and put in the cruiser. At 4:06am, officer Yates read her the Intoxilizer breath demand. He left the scene with the defendant and officer Briand in the cruiser, and arrived at the Oakville station at 4:11am. Eventually, Yates turned the defendant over to officer Adam Syring, the qualified breath technician, and was present during the testing. He later served a copy of the breath testing results document on the defendant.

[9] When cross-examined, officer Yates agreed that his notes are not detailed. He agreed that it was possible that he was directed to make the screening device demand. It is also possible he said that the suspicion that the defendant had alcohol in her body may have been passed onto him. He did not recall speaking to the defendant before making the screening device demand. He said he was directed by his coach officer Briand to make the screening device demand. He also testified that the defendant had no slurred speech, her eyes were not red or bloodshot, and that he could detect no odour of alcohol on her breath.

[10] Officer Syring, the breath technician, got custody of the defendant at 4:49am, and at 4:54am, got a reading of 150 milligrams of alcohol in 100 millilitres of blood. At 5:15am, a second reading of 150 was recorded.

[11] Under cross-examination, officer Syring said he received the grounds for arrest from officer Yates. These grounds had been entered onto a pre-printed form by Yates and given to him. Yates wrote that the grounds were that the defendant had operated her vehicle at a high rate of speed, there was a traffic stop, an odour of alcohol was detected on her, and she had failed the screening device test. In re-examination, officer Syring said he himself smelled alcohol on the breath of Ms. O'Shea.

[12] No evidence was called by the defence on the trial proper, but prior to the second day of trial, an application was filed which alleged a breach of sections 8 and 9 of the Charter of Rights and Freedoms. This was a late application because the alleged breaches only became apparent after hearing the evidence of the Crown's witnesses. It is alleged that officer Yates made the screening device demand without having the subjective basis to do so, because he testified that in his mind he had not formed any opinion on whether there was a legal basis to make a demand for a sample, pursuant to section 254(2) of the Criminal Code. He made the demand only because he was directed to do so. The subsequent arrest was alleged to be a violation of section 9 of the Charter. The remedy sought is an exclusion of all evidence obtained after entering onto the property of the defendant, pursuant to section 24(2) of the Charter.

The Law

[13] The relevant sections of the Charter of Rights and Freedoms are set out below:

Search or seizure

8. Everyone has the right to be secure against unreasonable search or seizure.

Detention or imprisonment

9. Everyone has the right not to be arbitrarily detained or imprisoned.

Enforcement of guaranteed rights and freedoms

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Exclusion of evidence bringing administration of justice into disrepute

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[14] The relevant Criminal Code section is as follows:

254. (2) 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 vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:

(a) 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

(b) 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.

Onus

[15] The onus is on the defence to establish a breach of section 8 and 9 of the Charter on a balance of probabilities. However, with respect to section 8, if the search was conducted without a warrant, the Crown must prove, on a balance of probabilities, that the search was reasonable: R. v. Collins, [1987] 1 S.C.R. 265. If the search was unreasonable and a breach of section 8, or if there has been a breach of section 9, the defence has the burden of establishing that the impugned evidence, if admitted, would bring the administration of justice into disrepute. On the trial proper, the Crown must prove the essential elements of the charges beyond a reasonable doubt.

Analysis

[16] Officer Yates gave his evidence on May 14, 2013. The incident took place almost nine months before. There are serious problems with his evidence.

[17] In his testimony, he said the reasonable suspicion to make the screening device demand was passed on to him by Sergeant Craig, namely that Ms. O'Shea had braked abruptly in the middle of an intersection at the intersection of Trafalgar Road and Upper Middle Road in Oakville. Yates also gave evidence that officer Craig also told him she had consumed two glasses of wine at Jonathan's Restaurant in Oakville. However, Craig, in his evidence, said the drinking took place in southeast Oakville, and never mentioned Jonathan's Restaurant.

[18] In law, the reasonable suspicion did not have to be formed by Yates from his own observations. In R. v. Nahorniak (2010), 2010 SKCA 68, 256 C.C.C (3d) 147 (Sask. C.A.), the court stated as follows:

21 These cases illustrate that reasonable suspicion can be achieved either by the officer's personal knowledge and observation or the communicated observations of others or a combination of both. This is so even where the officer making the demand cannot precisely articulate the information conveyed to him but there is nevertheless other testimony or evidence of what was conveyed.

22 It is not necessary for an officer to independently investigate and verify grounds of reasonable suspicion conveyed to him as long as he subjectively believes them. For Knowles specifically, it was enough that he knew the grounds and believed them at the time he made the demand and his belief was objectively and subjectively reasonable. In this case, Knowles testified he relied on McStay's grounds but also relied on his own observations to form his reasonable suspicion. Knowles stated three reasons to suspect Nahorniak had alcohol in his body. He assumed that McStay had proper grounds and made the demand because McStay asked him to. He relied on what McStay told him. Finally, he independently smelled alcohol coming from Nahorniak. Although it would have been preferable for Knowles to articulate the grounds McStay told him, his failure to do so was not fatal because McStay was able to articulate the details of what was conveyed.

[19] Despite what officer Yates said in his evidence, on the day of the alleged offence he told officer Syring, the qualified breath technician, that his grounds for making the demand were that the suspect was operating a motor vehicle at a high rate of speed and an odour of alcohol was detected. Yates even stated this in a pre-printed form given to Syring.

[20] At trial when cross-examined, officer Yates testified that he didn't detect any odour of alcohol on the breath of the defendant. The only officer who said he smelled alcohol coming from the defendant was officer Syring, so Yates may have used this observation from Syring to form his grounds, regardless of what he said in his evidence.

[21] I am left to conclude that officer Yates had no reliable subjective belief to make the demand. His evidence is extremely contradictory and cannot be relied upon.

[22] Since I have found that officer Yates had no reliable subjective belief upon which to make the screening device demand, the test and result was an unreasonable search and a violation of section 8 of the Charter. This was a warrantless search and the Crown has not proven that the search was reasonable.

Whether to Exclude the Evidence Under Section 24(2) of the Charter

[23] In R. v. Au-Yeung, 2010 ONSC 2292, [2010] O.J. No. 1579 (Sup. Ct.), T. Ducharme J. at para 55, stated the following:

55 The reputation of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct. Police officers who stop and detain motorists in order to perform ASD tests must execute their duties efficiently, competently, and accurately. There is no question that the need to combat drinking and driving is a pressing social concern. The public therefore accepts the use of breath samples both for roadside screening and ultimately for the determination of blood alcohol levels. Nonetheless the administration of justice would inevitably fall into disrepute if such shoddy police conduct were permitted to form the basis for the arrest, detention, and subsequent testing of drivers. As Sopinka J. observed in Bernshaw at para. 74:

Although we all agree that Parliament has every reason to vigorously pursue the objective of reducing the carnage on our highways, that objective is not advanced by subjecting innocent persons to invasions of privacy on the basis of faulty tests. I do not believe that this is what Parliament intended in enacting s. 254 of the Criminal Code. [Emphasis added]

(i) The Seriousness of the Charter-Infringing State Conduct

[24] A finding of guilt can only be founded upon evidence which a court can rely upon, and the evidence of officer Yates is internally contradictory and very unreliable. I therefore find that the Charter breach was serious.

(ii) The Impact of the Breach on the Charter-protected Interests of the Accused

[25] In Au-Yeung [supra], Ducharme J. also said this:

60 As for the s. 8 violation, it is true that the taking of breath samples pursuant to either s. 254(2) or 254(3) is not "a significant compelled intrusion upon the body." While the taking of a breath sample interferes with privacy of the person, the most assiduously protected privacy interest, the procedure is minimally intrusive in two respects. First, the procedure involved in collecting and analyzing breath samples is minimally intrusive in a physical sense. Second, the information gleaned from a breath sample is far from the "biographical core of personal information" that is protected by s. 8. These factors favour the admission of the evidence.

61 But that should not end the matter, because the demands placed on a driver to facilitate these tests are often not minimally intrusive. In this case, the appellant was arrested, handcuffed, placed in the rear of a police car and taken to a police station, a sixteen minute trip, and, once at the station, he was kept in police custody for another hour and fifty minutes. Thus, while the trial judge was correct in saying that the treatment of the appellant was not "oppressive" that is not the test. Certainly, such an interference with the appellant's personal liberty cannot be dismissed as minor. Thus, where the police lack the requisite grounds for the s. 254(3) demand, these aspects of the appellant's treatment constitute a significant violation of s. 9.

62 While the public are supportive of the legislative scheme in place to combat drinking and driving, this support cannot be presumed to extend to police actions that involve the detention and arrest of drivers without the requisite statutory and constitutional grounds. To condone or excuse the behaviour in this case would send a message to the public that, despite their Charter rights under sections 8 and 9 of the Charter, the police can ignore these and detain and arrest any driver. Thus, despite the minimal intrusiveness of the breath-testing procedures themselves, the second branch of Grant also weighs in favour of exclusion of the evidence.

[26] Without a proper legal basis, the defendant was made to submit to a screening device test, then arrested and handcuffed, and put in police custody, including a cell. She also would have lost her driving privileges for ninety days due to the provincial administrative suspension. Accordingly, the impact of the breach was very significant.

(iii) Society's Interest in the Adjudication of the Case on Its Merits

[27] In Grant [supra], the court dealt with this concern in paras 110 and 111:

110 The third line of inquiry -- the effect of admitting the evidence on the public interest in having a case adjudicated on its merits -- will usually favour admission in cases involving bodily samples. Unlike compelled statements, evidence obtained from the accused's body is generally reliable, and the risk of error inherent in depriving the trier of fact of the evidence may well tip the balance in favour of admission.

111 While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability. On the other hand, where 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.

[28] Because of this direction from the Supreme Court, and because we are dealing with breath samples and impaired driving, I find that society ordinarily would have an interest in the adjudication of the defendant's case on its merits. However, there is also the more serious aspect of the unreliable evidence of officer Yates and the need to stress the importance of a police officer giving credible and accurate evidence. As a result, society would not have an overriding interest in the adjudication of this case on its merits.

[29] Balancing all of the above-mentioned factors, it is my opinion that to admit any of the evidence of the screening device failure, or the blood-alcohol readings, would bring the administration of justice into disrepute.

Conclusion

[30] There has been a breach of sections 8 and 9 of the Charter of Rights and Freedoms and the evidence of the screening device failure and the blood-alcohol readings will be excluded under section 24(2). Therefore, Ms. O'Shea is found not guilty of the charge before the court.

Released: August 15, 2013

Signed: Justice Alan D. Cooper