Court File and Parties
Court File No.: Halton Region, Central West Region 12-2085
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Matthew Douglas Konior
Before: Justice Alan D. Cooper
Heard on: June 13 & December 2, 2013
Reasons for Judgment released: May 30, 2014
Counsel:
- Emily L. Pecorella Roda for the Crown
- Peter S. Dotsikas for the accused Matthew Douglas Konior
Case History
[1] The defendant was driving his pickup truck in Burlington on July 6, 2012, when, at 9:15pm, Halton Regional Police Service officer Katherine Robertson stopped him for using a cell phone. When speaking to Mr. Konior as he sat in his truck with the driver's window down, the officer noticed a strong odour of burnt marijuana coming from inside the truck. He was asked if he had been smoking marijuana and he said: "Yes, at a friend's house." The officer formed reasonable and probable grounds to arrest him for possession of a controlled substance.
[2] Mr. Konior was asked to exit his vehicle and as he did, with his back to the officer, took something from his pocket and moved it to the front of his body. A male officer was called for assistance and he found a plastic baggie with marijuana inside the front of the shorts of the defendant. He was then handcuffed from behind.
[3] In view of the small quantity of drug involved, and the fact that he had no criminal record, officer Robertson decided not to charge Mr. Konior for possession, but told him that he would receive a ticket for using his cell phone while driving.
[4] As he was being released from inside the officer's cruiser at 9:42pm, a strong odour of alcohol was detected, and despite denying consuming alcohol, the officer formed a reasonable suspicion that he had been driving with alcohol in his body. He was given a roadside screening test and failed, and was arrested for operating a motor vehicle after having consumed alcohol in excess of the legal limit. At the police station, his blood alcohol readings were 130 and 110 milligrams of alcohol in 100 millilitres of blood.
[5] No defence evidence was called but the defence had previously filed a Charter application alleging, in addition to other grounds, breaches of sections 8 and 9, and requesting an exclusion of all of the evidence obtained after the arrest of Mr. Konior.
The Law
[6] 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.
Onus
[7] The onus is on the defence to establish a breach of sections 8, 9 of the Charter on a balance of probabilities. However, if a 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, 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
Reasonable and Probable Grounds
[8] Officer Robertson had no power to arrest the defendant for using his cell phone while driving. The Ontario Highway Traffic Act does not authorize a general power of arrest without warrant, except for those offences designated in section 217(2). Section 78.1, the provision concerning cell phones, is not included therein.
[9] The issue then is whether or not the officer had reasonable and proper grounds to arrest the defendant for possession of a controlled substance, based solely on the strong odour of burnt marijuana.
[10] In R. v. Khan, [2010] O.J. No. 3861(O.C.J.), Lipson J. stated as follows:
10 The court must first determine whether the arresting officer had reasonable grounds to arrest Mr. Khan for impaired operation.
11 The relevant legal principles were recently summarized by Durno J., sitting ad hoc, in the Ontario Court of Appeal decision in R. v. Bush, 2010 ONCA 554 at paras. 36-40:
Drinking and driving prosecutions involve a continuum of findings, beginning with a reasonable suspicion the driver has alcohol in his or her body, the standard for an Approved Screening Device (roadside) demand pursuant to s. 254(2) of the Criminal Code. At the other end of the continuum, is the standard for conviction, proof beyond a reasonable doubt that the operator's ability to operate a motor vehicle was impaired by the consumption of alcohol or that the driver's blood alcohol concentration was over the legal limit.
Between suspicion and proof beyond a reasonable doubt lies reasonable and probable grounds. Section 254(3) of the Criminal Code authorizes peace officers to demand Intoxilyzer breath samples provided the officer "has reasonable and probable grounds to believe that a person is committing or at any time within the preceding three hours has committed" the offence of impaired operation or driving 'over 80.' (emphasis added) Reasonable and probable grounds does not amount to proof beyond a reasonable doubt or to a prima facie case: see Censoni at para. 31 and R. v. Shepherd 2009 SCC 35 at para. 23.
Reasonable and probable grounds have both a subjective and an objective component. The subjective component requires the officer to have an honest belief the suspect committed the offence: R. v. Bernshaw, [1995] 1 S.C.R. 254 at para. 51. The officer's belief must be supported by objective facts: R. v. Berlinski, [2001] O.J. No. 377 (C.A.) at para. 3. The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest: R. v. Storrey, [1990] 1 S.C.R. 241 at p. 250.
In Storrey v. The Queen, supra at 323, Cory J. articulated the overarching context of drinking/driving investigations - the need for reasonable balance between the individual's rights to liberty and the need for society to be protected from the menace of impaired drivers. Every year, drunk driving leaves a terrible trail of death, injury, and destruction: The Queen v. Bernshaw, supra at 204; Regina v. Saunders (1988), 41 C.C.C. (3d) 532 (Ont. C.A.) at 537, 539, 541 per Cory J.A. (as he then was). [emphasis added]
In Storrey, Cory J. addressed the importance of the requirement that officers have reasonable grounds as follows at p. 249-250:
The importance of this requirement to citizens of a democracy is self-evident. Yet society also needs protection from crime. This need requires that there be a reasonable balance achieved between the individual's right to liberty and the need for society to be protected
12 The determination of whether reasonable and probable grounds exist is a fact-based exercise dependant on all circumstances in a case. As well, the court should not lose sight of the fact that police officers in drinking and driving cases are involved in making quick and, hopefully, informed decisions as to whether there are reasonable grounds.
[11] Officer Robertson subjectively felt she had reasonable and probable grounds to arrest Mr. Konior for possession of marijuana.
[12] Concerning the objective grounds, the only basis for the arrest was the strong odour of burnt marijuana coming from the truck. The officer did not have to believe the explanation of having smoked some at a friend's house, but there was no admission of present possession, nor was there evidence of drugs or drug paraphernalia in plain view. The area where Mr. Konior was stopped was not described as a known drug area.
[13] In R. v. Polashek, [1999] O.J. No. 968 (C.A.), a police officer stopped a vehicle and smelled a strong odour of marijuana coming from inside the vehicle. There was no smoke and the officer could not tell if the odour was from fresh or burnt marijuana. When the officer told the driver he smelled this, he said "No you don't." The officer's grounds for arrest were based on the smell, the driver's verbal response, the area of Mississauga in which the stop took place, and the time of night. In paragraph 18, Rosenberg J.A., for the court, said as follows:
18 Thus, absent an error in principle, an appellate court is not entitled to interfere with the trial judge's finding of reasonable grounds, unless that finding is unreasonable. If the trial judge's reasons could be interpreted as finding reasonable and probable grounds solely on the basis of the odour of marijuana I would consider this an error in principle. However, as the excerpted passages from the evidence show, the officer did not rely solely upon the smell of marijuana and it would have been unreasonable for the trial judge to ignore that evidence in reaching his conclusion on both the objective and subjective grounds.
See also R. v. Janvier, 2007 SKCA 147, [2007] 227 C.C.C. (3d) 294 (Sask. C.A.).
[14] In the case at bar it is very clear that the reasonable and probable grounds were based solely on the strong odour of burnt marijuana coming from inside the truck. In these circumstances, there was no objective basis to conclude that Mr. Konior was in possession of the drug in his truck.
[15] Therefore, since the search was executed without a warrant, the Crown must prove on a balance of probabilities that the search was reasonable. I find as a fact that the Crown has not shown the search to be reasonable, and there has been a breach of section 8 of the Charter.
Whether to Exclude the Impugned Evidence
[16] The defence requests the court to exclude all evidence obtained after arrest of the defendant. Since Mr. Konior was not charged with possession of a controlled substance, it is the blood-alcohol readings which are sought to be excluded.
[17] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the Supreme Court, at paragraph 71, states as follows:
71 A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.
(i) The Seriousness of the Charter-Infringing State Conduct
[18] The court in Grant described this branch of the inquiry as follows:
73 This inquiry therefore necessitates an evaluation of the seriousness of the state conduct that led to the breach. The concern of this inquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be a happy consequence. The main concern is to preserve public confidence in the rule of law and its processes. In order to determine the effect of admission of the evidence on public confidence in the justice system, the court on a s. 24(2) application must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter.
[19] 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]
[20] The Polashek case was decided in 1999, and the law has been clear since then that the mere odour of marijuana, without anything else, is not sufficient to constitute reasonable and probable grounds to arrest someone. It is important for police officers to know what the law is and for the court to ensure that the law is followed. In all the circumstances, I find that the Charter-infringing state conduct was serious.
(ii) The Impact of the Breach on the Charter-Protected Interests of the Accused
[21] 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. 9 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."
[22] The police officers in this matter placed Mr. Konior under arrest and required him to take a roadside screening device test. He then was transported to a police station and compelled to submit to more breath testing. He was then given a 90 day administrative licence suspension and required to attend court, including attendance at this trial. It is my finding that the arrest and detention of Mr. Konior had a serious impact on his Charter-protected interests.
(iii) Society's Interest in the Adjudication of the Case on Its Merits
[23] 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."
[24] Because of this direction from the Supreme Court, and because we are dealing with breath samples and drinking and driving, I find that society ordinarily would have an interest in the adjudication of the defendant's case on its merits. However, a citizen has the right to be protected from an unlawful arrest, when it should have been very clear that no grounds existed for such an arrest. As a result, society would not have an overriding interest in the adjudication of this case on its merits.
[25] Balancing all of the above-mentioned factors, it is my opinion that to admit any of the evidence obtained by the police after the unlawful arrest of the defendant, would bring the administration of justice into disrepute.
[26] There has been a breach of sections 8 and 9 of the Charter of Rights and Freedoms and the blood-alcohol readings will be excluded under section 24(2) of the Charter.
Conclusion
[27] Because this evidence has been excluded, the defendant is found not guilty of having operated a motor vehicle after having consumed alcohol in excess of the legal limit.
Released: May 30, 2014
Signed: Justice Alan D. Cooper