Court Information

Ontario Court of Justice

Date: 2014-09-10

Court File No.: Regional Municipality of Durham 998 13 15281

Parties

Between:

Her Majesty the Queen

— and —

Dale Caswell

Judicial Officer and Counsel

Before: Justice J. De Filippis

Heard on: 9 April & 9 July 2014

Reasons for Judgment released on: 10 September 2014

Counsel:

• Mr. M. Hill – counsel for the Crown
• Mr. C. Da Cruz – counsel for the Defendant

Reasons for Judgment

De Filippis J.:

Introduction

[1] The defendant was tried on an Information alleging that he was in care or control of a motor vehicle while impaired and at a time that his blood alcohol level was over 80 milligrams of alcohol per 100 millilitres of blood, contrary to section 253 of the Criminal Code. The defendant brought a motion to exclude the evidence needed by the Crown to prove the charge or, in the alternative, for such other remedy as may be available. This motion is grounded in sections 8, 9, and 24 of the Charter of Rights and Freedoms. The trial proceeded by way of a blended hearing. I heard from the arresting officer, the defendant, and a tow truck driver.

Charter Framework

[2] Section 8 of the Charter provides that "Everyone has the right to be secure against unreasonable search or seizure". This right means that the police must have reasonable and probable grounds to arrest and/or search a person. Section 9 states that "Everyone has the right not to be arbitrarily detained or imprisoned." The enforcement of Charter rights is governed by section 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.

(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.

Issues

[3] The verdict in this matter is driven by the Charter motion; that is, in the circumstances of this case, the breath test results are conclusive proof of the offence. There are three issues: Did the seizure of the breath samples violate the defendant's Charter rights, as set out in sections 8 and 9? If so, should that evidence be excluded, pursuant to subsection 24(2)? If not, should another remedy be granted, pursuant to subsection 24(1)? Having regard to my conclusion with respect to section 8 and subsection 24(2), it is unnecessary to consider the other arguments advanced by the defendant.

Facts

Geography and Traffic Control

[4] Street names and stop signs are important to this case. Athol Street, in Whitby, runs north and south. As it does so, from the north, it intersects with Burns Street, St. Lawrence Street and then turns onto Clemence Avenue. There are stop signs at the Burns and St. Lawrence intersections. There is no stop sign at Clemence.

The Initial Stop

[5] PC Jeffs was on duty as a uniformed officer in the Regional RIDE program on 13 December 2013. At 2 AM he was in the Town of Whitby and observed a Honda motor vehicle southbound on Athol Street, approaching Burns Street. The officer testified that this intersection is in a residential area and controlled by a clearly marked four-way stop sign configuration. He followed the vehicle until it approached another stop sign at the intersection of Athol Street and Clemence Avenue. PC Jeffs said the vehicle made a right turn, without coming to a complete stop, continuing westbound on Clemence Avenue. He decided to pull the vehicle over because of this "rolling stop" and he did so at 2:02 AM on Clemence Avenue, immediately east of Brock Street.

Roadside Screening Device Test

[6] PC Jeffs approached the driver's side of the vehicle and observed that the defendant was the driver with a female passenger in the front seat. He detected an odour of alcohol emanating from within the car. The officer told the defendant the reason for the stop. During additional conversation, the officer detected the odour of alcohol from the defendant's breath. The latter admitted to having recently consumed "two beers – two Coors Light – draughts – at the Royal". Having regard to the observations and conversation, PC Jeffs demanded that the defendant provide a sample of his breath into an approved screening device. The latter had been previously tested and found to be in good working order.

[7] PC Jeffs explained the test procedure. After several unsuccessful attempts, the defendant provided a proper sample. This was analyzed and determined to be a "fail"; that is, a blood alcohol concentration in excess of 100 milligrams of alcohol in 100 millilitres of blood. As a result, the defendant was arrested for the charge before the court. He was informed of his right to counsel, subjected to a breath demand, and transported to the nearest police station for those additional tests to be conducted. On arrival at the station, the defendant was paraded and given the opportunity to speak to duty counsel.

Approved Instrument Test

[8] At 3:10 AM, PC Jeffs brought the defendant to PC Adams, the intoxilyzer technician. The latter used an approved instrument to seize two samples of the defendant's breath. There is no dispute that this was conducted properly. The results were analyzed and determined to be 210 and 200 milligrams of alcohol in 100 millilitres of blood. This is more than twice the legal limit.

Credibility Issues

[9] P.C. Jeffs' notes, made contemporaneously with the events in question, record his observation that the defendant disobeyed a stop sign at Athol and Clemence. This is consistent with his trial testimony in chief. In cross-examination, he was provided with a map of the area that shows there is no stop sign at this point along the road and that Athol becomes Clemence as it veers to the right. The officer seemed puzzled by this and said he made a mistake and that the defendant failed to obey the stop sign along Athol, at both Burns and St. Lawrence. These observations are not recorded in his notes. In later questioning, the officer also insisted that the defendant had his wallet with him later at the police station.

[10] The defendant denied disobeying any stop sign. He testified he was not given an explanation for being pulled over. He acknowledged telling the officer he had consumed alcohol during an evening in which he had hosted a dinner for his employees, followed by drinks at a "strip club". After arrest, he was transported to the police station and arrived there without his wallet, as he had left this in his (impounded) vehicle.

[11] David Omerod operates a tow truck with Duft's Towing Inc. He testified that on the day in question he was dispatched to pick up a motor vehicle that had been stopped by police at the intersection of Brock and Clemence Streets in the Town of Whitby. He identified the tow truck invoice he prepared at the time for the car seized at this location. The invoice also records that a wallet was found in the vehicle and taken with the car to the pound.

Legal Analysis

Lawful Authority to Detain

[12] The Defence argues that PC Jeffs had no authority to detain the defendant and subject him to a breath demand. Moreover, it is asserted that in the circumstances of this case, the subsequent breath test results should not be admitted into evidence. There is no dispute that the breath demand that yielded these results from the approved instrument was justified by the defendant's "fail" reading on the approved screening device. The Crown submits that once the defendant's motor vehicle was stopped, PC Jeffs had ample grounds to make an approved screening device demand at the roadside. I agree; that demand was validated by the officer's observation that the defendant operated the motor vehicle and had the odour of alcohol on his breath, as well as the latter's admission he had consumed alcohol. However, I do not accept the Crown's additional submission that this fact is fatal to the defendant's Charter challenge. The police must have lawful cause to detain a person. The sources of such authority can be found in statute or pursuant to common law powers vested in the police. The ground for doing so in this case is that the defendant violated the Highway Traffic Act by disobeying a stop sign on two occasions. That is a legitimate basis for the officer to stop and detain. However, the evidence in this case does not support the stated reason for this action.

Inconsistent and Unreliable Testimony

[13] PC Jeffs testified in chief that he followed the defendant's motor vehicle southbound on Athol, past the clearly marked four-way stop intersection at Burns, and observed the car make a "rolling stop" at the intersection of Athol and Clemence. This cannot be as there is no stop sign here. When this was made clear, the officer testified he must have made a mistake and that the failure to stop occurred at the previous intersection, at Athol and St. Lawrence. He added that before arriving at Clemence, the defendant failed to stop at both intersections on Athol, namely, at Burns and St. Lawrence. The omission of these observations in the notes he made at the time is significant because the Highway Traffic Act offence in question is the only reason the officer investigated the defendant. Moreover, one is left to wonder why the defendant was not pulled over after he disobeyed the first stop sign, let alone the second one. Instead, on the testimony of the officer and the tow truck driver, this did not occur until after the defendant had continued along Athol and Clemence, just east of Brock Road.

[14] The defendant testified that he stopped, as required, at all intersections. In any event, the fact remains that the evidence of the officer about where the defendant disobeyed a stop sign is so muddled that it cannot be relied upon. This confusion is cemented by a detail that might not otherwise trouble me – the matter of the wallet. PC Jeffs testified the defendant had one with him at the police station. The defendant said he left it in the car. The tow truck driver testified, and recorded at the time, that he found one in the motor vehicle. It is unlikely that this wallet belonged to the female passenger; what is more likely is that the officer has it wrong.

Reasonable and Probable Grounds

[15] A reasonable and probable ground to arrest and/or search has both a subjective and an objective component. The subjective component requires that the officer honestly believe the suspect committed an offence. The objective component means that the officer's opinion must be supported by objective facts: Storrey v. The Queen (1990), 53 C.C.C. (3d) 316 (S.C.C.). Judicial scrutiny of this standard must recognize the context within which the police officer's obligation operates. It must not be inflated to the context of testing trial evidence. Neither is it to be so diluted as to threaten individual freedom: R. v. Censoni, [2001] O.J. No. 5189 (S.C.J.). In other words, there must be enough to justify police interference with individual liberty, but this does not mean a prima facie case or proof beyond a reasonable doubt.

Charter Breach Finding

[16] In this case, the officer's subjective belief that an offence was committed is based on an unclear and inconsistent account of the events. Moreover, the shifting explanation he provided cannot be said to be objectively reasonable. Accordingly, the defendant has also established that his detention was arbitrary. I find that his section 8 and 9 Charter rights were infringed.

Section 24(2) Analysis

[17] In determining if the admission of the evidence obtained by a Charter breach would bring the administration of justice into disrepute, the following factors must be considered: (1) The seriousness of the Charter-infringing state conduct; (2) The impact of the breach on the Charter-protected interests of the accused; and (3) Society's interest in the adjudication of the case on its merits. The first stage of the inquiry reflects the concern that respect for the Charter may be undermined if courts, by admitting evidence, appear to condone deliberate and egregious police conduct. The second stage focuses on the impact of the breach on the protected interests of the defendant; the greater the intrusion on important interests, the more likely it is that tainted evidence will be excluded. In this regard the spectrum includes intrusions that are fleeting or technical to those that profoundly affect bodily integrity and human dignity. The third inquiry considers the value of a trial on the merits. In this regard, the reliability of the evidence is important. R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, para. 71 and R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, para. 36.

[18] The third criteria outlined above supports the rejection of the Defence motion; the impugned evidence – breath test results – are highly reliable and exclusion is fatal to the Crown's case. On the other hand, the defendant was detained and searched for no ascertainable reason. Accordingly, the first and second considerations favour exclusion of the evidence. The application of section 24(2) of the Charter is always a question of balance. In my opinion, the scale tips in favour of exclusion. To do otherwise in the circumstances of this case would bring the administration of justice into disrepute.

Conclusion

[19] The Charter motion succeeds. The evidence is excluded. The charge is dismissed.

Released: September 10, 2014

Signed: Justice De Filippis