Court File and Parties

Court File No.: 10 15017 Date: 2013-06-26 Ontario Court of Justice

Between: Her Majesty the Queen — and — Paul Goeddeke

Before: Justice Lloyd Dean

Dates Heard: September 25th and November 14th, 2012, April 17, 2013

Counsel:

• J. Magri, for the Crown
• B. Ducharme, for the Accused

RULING ON CHARTER APPLICATION

INTRODUCTION

[1] Mr. Goeddeke is before the court charged with having exceeded the legal limit of alcohol in his body while operating a motor vehicle, contrary to s. 253(1)(b) of the Criminal Code ("C.C.").

[2] This ruling concerns a Charter Application alleging that Mr. Goeddeke's s. 8 and 10(b) rights were violated. The defence is seeking to have excluded the results of the breath tests.

FACTS

[3] Mr. Goeddeke, a United States resident, was operating a motor vehicle on August 20, 2010. His adult son was a passenger in the vehicle. At approximately 1:52 p.m., he arrived in Canada from the U.S. at the border, via the Ambassador Bridge here in Windsor. He drove his vehicle up to a primary inspection booth. He was interviewed there by a Canadian Border Services Officer ("BSO"). As a result of that interview he was directed to the secondary inspection area to have his vehicle searched and for further questioning by Canadian Immigration officials. He was not sent to secondary inspection due to any concerns involving alcohol.

[4] When he arrived in secondary inspection, he was approached by BSO McAdam at approximately 1:54 p.m. As a result of examining the E67 form placed on the accused's vehicle by the primary inspection officer, BSO McAdam had the accused and his son step out of the vehicle so the motor vehicle could be examined for any type of contraband or inadmissible goods. The accused and his son were directed to stand at the front of the vehicle for officer safety reasons. According to BSO McAdam, the son began walking immediately towards a garbage can for some unknown reason. He was told to stop and wait at the front of the vehicle in order for the vehicle and both of them to be properly examined. The son attempting to go to the garbage can raised a suspicion in BSO McAdam's mind that there might be something in the son's pocket that he was trying to get rid of before he was examined.

[5] After the vehicle was searched with negative results, the accused was asked to come to the rear of his vehicle while his son remained at the front of the vehicle. It was BSO McAdam's intention to conduct a pocket examination of the accused to ensure there wasn't any contraband or inadmissible goods on his person. He asked the accused what he does for employment and the accused replied he worked at Chrysler. That is when BSO McAdam smelled the slight odour of alcohol on the accused's breath.

[6] Subsequent to that, other observations, which will be discussed later, were made and the accused ultimately failed a roadside breath test which led to him being arrested, providing further samples and ultimately being charged with the offence before the court.

POSITION OF THE PARTIES

[7] The defence argues with respect to s. 8 of the Charter that the evidence called on the voir dire falls short of establishing that BSO McAdam had a reasonable suspicion to make a demand pursuant to s. 254(2) of the C.C. Defence counsel submits the suspicion BSO McAdam formed was not the suspicion required under s. 254(2). He argues BSO McAdam formed the suspicion the accused "may be impaired by alcohol" which is not the suspicion required. Defence counsel also submits BSO McAdam never gave a demand for an approved screening device ("ASD") sample and further, the device he asked another officer to retrieve for him was an Alcotest GLC 7410, which is not an approved screening device. Defence counsel also argues BSO McAdam does not say the device that was handed to him was an approved screening device.

[8] With respect to s. 254(3) C.C., defence counsel submits the evidence falls short of establishing that BSO McAdam had reasonable and probable grounds to make a demand pursuant to s. 254(3). He also argues there is no evidence that any demand was made pursuant to that section.

[9] With respect to s. 10(b) of the Charter, defence counsel submits the accused was initially detained at primary by BSO St. Denis for reasons having nothing to do with alcohol consumption related reasons. When the accused was in the secondary examination area, the investigation changed after BSO McAdam smelled the odour of alcohol on the accused's breath. Defence argues that change in the investigation required the accused to be given his right to counsel pursuant to s. 10(b) of the Charter.

[10] It is the defence position that, as a result of the above noted Charter breaches and/or failure of BSO McAdam to comply with the requirements of ss. 254(2) and 254(3) C.C., the results of the breath tests should be excluded.

[11] The Crown submits, with respect to the s. 8 issue, BSO McAdam did subjectively form a reasonable suspicion that the accused had alcohol in his body. The Crown also submits that suspicion was sustainable on an objective basis. Further, the Crown submits the evidence shows the officer did give an ASD demand.

[12] With respect to the issue surrounding the officer not using an approved screening device, the Crown submits the evidence given by BSO McAdam indicates he believed he was using an approved screening device. The Crown also argues the accused simply misnamed the device used when referring to it as an Alcotest GLC 7410. The proper name of the approved screening device as set out in the regulations is Alcotest 7410 GLC. The Crown argues the reversing of the letters "GLC" and "7410" by the officer when naming the device is not fatal to the Crown's case.

[13] It is the Crown's position the evidence also shows BSO McAdam had reasonable grounds to make a demand pursuant to s. 254(3).

[14] With respect to the s. 10(b) issue, the Crown argues there was no requirement that the right to counsel be given to the accused before the approved screening device samples were demanded for and provided by the accused; the Crown submits there was not a change in circumstances as argued by defence counsel.

[15] Therefore, the Crown submits the evidence supports the results of the breath tests being admitted on the trial proper.

[16] Both counsel pointed out areas of the evidence to support their arguments, as well as providing several cases they claim support their positions.

ANALYSIS

Issue – Whether BSO McAdam formed a reasonable suspicion that the accused had alcohol in his body as required by s. 254(2)

[17] BSO McAdam testified that during his initial discussion with the accused he smelled the slight odour of alcohol on the accused's breath, and he also noticed the accused's cheeks were red. Further, during this discussion the accused was emptying his pockets. One of the contents of his pocket was an empty 50 ml bottle of Jägermeister alcohol and as he pulled it out he said "I'm gonna be in trouble."

[18] Officer McAdam used different phrases to express the suspicion that was raised in his mind as a result of his observations. At one point he said, "I formed the suspicion that he may be impaired by alcohol." And at another point he said the observations he made, "...would lead me to suspect the person may be impaired." When asked by Crown counsel what he meant by that, he responded by saying, "Like, impaired by alcohol in a criminal, like in a legal definition under 253 of the C.C." At another point in his testimony he said, when commenting on the empty bottle of Jägermeister which the accused pulled from his pocket, "Well that also gave me suspicion that he consumed alcohol, so I had suspected at that point, you know, it furthered my suspicion that he had been drinking." By drinking he meant "drinking alcohol." When further testifying he said, "So then when he, when he produced that empty bottle, that gave me a suspicion that he had consumed it and when he made that statement 'I'm gonna be in trouble' that was kind of more suspicion that he may be impaired by alcohol." When asked again by Crown counsel what he meant by "impaired by alcohol" he responded by saying, "Paul Goeddeke may be impaired by alcohol and that he's driving, or that he was driving and that's a Criminal Code offence."

[19] Further into his examination in-chief, BSO McAdam states after the empty bottle was produced he asked the accused if he had consumed alcohol on that date and the accused replied he did consume the small bottle of Jägermeister approximately an hour prior to that. The officer then testified, "...this confirmed my suspicions that the accused had been drinking. So I went ahead with what I was going to do anyways, which was have(sic) an ASD demand, approved screening device demand. I was going to have him you know, provide a sample to determine whether he was over the legal amount of alcohol, which is 80 mg., let me see here, yes to make sure that he or to determine whether he was over 80 mg. of alcohol in 100 ml. of blood."

[20] It is not necessary for BSO McAdam to state the words, "I formed a reasonable suspicion that the accused had alcohol in his body." That conclusion may be drawn by looking at the totality of evidence given by the officer who made the ASD demand, see: R. v. Martin, [2005] O.J. No. 670 (Ont. S.C.J.). In this particular case, looking at the totality of the evidence given by BSO McAdam, I am satisfied on a subjective basis that he formed the requisite suspicion necessary to make the ASD demand and that suspicion was sustainable on an objective basis.

Issue – Whether BSO McAdam gave a demand for an ASD sample

[21] As noted above, after the accused pulled from his pocket the empty bottle of Jägermeister and acknowledged drinking it an hour earlier, BSO McAdam testified, in-chief, he went ahead with what he was going to do, "... which was have(sic) an ASD demand, approved screening device demand."

[22] In cross-examination, when responding to a question, he stated, "I read the ASD demand..." That statement was never challenged by defence counsel.

[23] The above evidence made it clear to me that BSO McAdam gave an ASD demand.

Issue – Whether BSO McAdam used an approved screening device

[24] BSO McAdam gave evidence that two minutes after forming his suspicion he asked another officer "to retrieve the Alcotest GLC 7410." Right after that evidence was given he said, "It's our approved screening device we use at the Ambassador Bridge..." When questioned further by the Crown as to how he asked the other officer to retrieve the device he said, "I just verbally asked her. I said can you get the ASD." Earlier in his evidence he described those letters to mean, "approved screening device." Several other times BSO McAdam referred to the device as the "Alcotest GLC 7410." As noted earlier, that is not the name of an approved screening device as set out in the regulations. The correct name of the approved screening device named in the regulations is, Alcotest 7410 GLC.

[25] In the Ontario Court of Appeal decision, R. v. Gundy, 2008 ONCA 284, referred to by the Crown, Rosenberg J., writing for the court, stated at paragraphs 44 through 47:

[44] In determining whether the particular device was approved, the court must consider all the evidence, including any circumstantial evidence. The court is entitled to draw reasonable inferences from the evidence. Thus, in my view, if the officer in his or her testimony refers to the device as an "approved screening device", the trial judge is entitled to infer that the device was indeed an approved device. As such, the officer is entitled to rely upon the "fail" recorded by the device to find that there were reasonable and probable grounds to make the breath demand.

[45] The officer is not required to refer to the device by its particular brand and number such as "Alcotest 7410 GLC". Further, references to a part only of the identification such as "Alcotest" or "Alcotest GLC" do not rebut the reasonable inference from the officer's reference to the device as approved that it is indeed an approved screening device. The addition of the manufacturer's name, for example "Drager Alcotest 7410 GLC", is likewise not fatal: see R. v. Neziol (2001), 22 M.V.R. (4th) 299 (Ont. S.C.J.). Further, in my view, the context in which the officer refers to the device as approved is of no particular moment. Thus, if the officer testifies that he or she used an approved screening device, or agrees with the suggestion that it is an approved screening device, such testimony is direct evidence upon which the trial judge can rely: see e.g. R. v. Latulippe (2005), 26 M.V.R. (5th) 97 (Ont. S.C.J.).

[46] Where, as here, the officer states that she made a demand that the motorist provide a sample for analysis by the approved screening device, surely the trier of fact can reasonably infer that the officer used an approved device. That was the holding of the trial judge in this case and I agree with that decision. As Langdon J. said in R. v. James, [1995] O.J. No. 190 (Gen. Div.) at para. 5, "what is the likelihood that the O.P.P. would supply its constables with an unapproved device with which to enforce the R.I.D.E. programme?"

[47] In my view, cases holding that the officer did not have reasonable and probable grounds because, although the officer referred to the device as an approved screening device, he or she used a shorthand reference to the device or transposed some of the numbers or letters are wrongly decided. In the absence of some credible evidence to the contrary, it is not reasonable to infer that an officer who says that he or she used an approved screening device actually used an unapproved device. That was the holding of this court in R. v. Kosa (1992), 42 M.V.R. (2d) 290 at 291:

We are of the view that the manufacturer's model number given by the officer in evidence as Model JA3 rather than Model J3A as set forth in the regulations was no more than an innocent transposition of a number and letter and that the unchallenged assertion by the officer that it was an approved screening device is sufficient proof thereof. If such is the case, there is no need to look further to justify the finding of reasonable and probable grounds. [Emphasis added.]

[26] Justice Rosenberg, at paragraph 50, point 6, summarized the court's position regarding the sufficiency of evidence needed to demonstrate an officer used an approved screening device:

[50] …

6. In the absence of credible evidence to the contrary, the officer's testimony that he or she made a demand with an approved screening device is sufficient evidence that the officer had the requisite reasonable belief. The officer is not required to give the particular model number or otherwise identify the device. Obvious errors such as incomplete reference to the model number do not undermine the officer's testimony that the device was an approved screening device.

[27] In the case at bar, the officer referred to the device as an Alcotest GLC 7410, thereby transposing the letters GLC and the numbers 7410. He referred to the device as an approved screening device they used at the Ambassador Bridge. I am satisfied BSO McAdam was using an approved screening device. There is no credible evidence to the contrary.

Issue – Does the evidence establish that BSO McAdam had reasonable and probable grounds to make a demand pursuant to s. 254(3) of the Criminal Code?

[28] I have already found that BSO McAdam formed the requisite suspicion that the accused had alcohol in his body, based on the observations he made of the accused. I have also found that the device he used to obtain samples of his breath was an approved screening device. The accused registered a fail on that device. BSO McAdam indicated as a result he arrested the accused for operating a motor vehicle with over 80 milligrams of alcohol in 100 millilitres of his blood. That evidence satisfies both the subjective and objective components of establishing that BSO McAdam had reasonable grounds to make the demand pursuant to s. 254(3).

Issue – Does it matter there was no evidence on the voir dire that a demand pursuant to s. 254(3) was made?

[29] Defence counsel argued there is no evidence that a section 254(3) demand was ever made.

[30] The matter before me proceeded as a voir dire blending both the s. 8 and s. 10(b) issues. It did not proceed as a blended voir dire and trial, which is sometimes done. At the beginning of the voir dire, it was discussed by the court with counsel as to what the issue was with respect to section 8. It was stated by Crown counsel, not disputed and in my view adopted by defence counsel, the issue with respect to s. 8 was "reasonable and probable grounds" to make a demand. Not whether a demand was ever made. In my view, the Crown called evidence to address that issue and stopped their questioning of BSO McAdam once they felt the issue had been addressed. In my view, it is not fair for defence counsel to now argue there is no evidence of a demand being made pursuant to s. 254(3). That argument will not be entertained.

Issue – Whether the accused's s. 10(b) rights were breached

[31] As indicated above, defence counsel argues there was a change in circumstance which compelled BSO McAdam to inform the accused of his right to counsel. The change in circumstance alleged is that the primary officer did not send the accused to secondary inspection for an alcohol related incident or investigation, but it was for an examination for goods not declared and for Immigration purposes.

[32] The defence relies on the case of R. v. Sawatsky (1997), 35 O.R.(3d) 767, a decision of the Ontario Court of Appeal. That case is easily distinguishable. It is not applicable to the case before me. It was not a drinking and driving case. That case involved an accused who was arrested in connection to a house fire in one city and during an interview with officers the accused made incriminating statements concerning a fire in another city. The accused had been given her right to counsel when initially arrested. The Crown sought to tender those statements at trial. The court held that the police were obliged to re-advise the accused of her s. 10(b) rights in connection with the fire in the other city.

[33] The case at bar involves an international border crossing which involves officers charged with, among other things, the duty of ensuring that no illegal goods and/or undesirable people enter into Canada. The directing of persons from the primary booth to the secondary inspection area for further examination pertains to the discharging of that duty. The secondary inspection officer, BSO McAdam, upon speaking to and observing the accused forms the suspicion the accused may be impaired. An investigation involving a possible breach of the drinking and driving laws in Canada then begins. This is not the change in circumstances contemplated in R. v. Sawatsky, supra, which would then require the accused to be given his right to counsel. Rather, this is a situation akin to when an officer has stopped a motor vehicle to investigate a potential breach of the Highway Traffic Act and upon detecting an odour of alcohol on the accused's breath and/or other observations that causes him to suspect the driver may have alcohol in his body, the officer makes an ASD demand. There is no requirement, as a general statement of law, for the officer to inform the driver of his right to counsel prior to that driver supplying a breath sample into the ASD (See: R. v. Thomsen, [1988] 1 S.C.R. 640). There are some instances where, because of the circumstances surrounding the ASD demand, the right to counsel may be required to be given. That is not the situation with the case before me.

[34] BSO McAdam was not required to inform the accused of his right to counsel before requiring him to supply a breath sample into the ASD.

CONCLUSION

[35] I have concluded neither s. 8 nor s. 10(b) of the Charter has been breached. Therefore, the evidence of the breath results will not be excluded.

Dated: June 26, 2013

Justice Lloyd Dean