Court File and Parties

Ontario Court of Justice

Date: 2014-12-09

Court File No.: Central East 13-14777

Between:

Her Majesty the Queen

— and —

Andrew Stratton

Before: Mr. Justice M. S. Felix

Heard on: September 17, 2014

Oral Decision: November 24, 2014

Written Reasons for Judgment released on: December 9, 2014

Counsel:

• T. Jackson, Counsel for the Crown
• P. Dotsikas, Counsel for the Defendant Andrew Stratton

Felix J.:

Table of Contents

1. INTRODUCTION
2. POSITION OF THE PARTIES ON THE CHARTER APPLICATION
3. RULING ON THE CHARTER APPLICATION (AND TRIAL)
4. ONUS
5. FACTORS RELEVANT TO REASONABLE AND PROBABLE GROUNDS
6. FINDING: SECTIONS 8 AND 9 OF THE CHARTER
7. GRANT: SECTION 24(2) OF THE CHARTER
8. DISPOSITION

1. INTRODUCTION

[1] Andrew Stratton is charged with impaired operation of a motor vehicle and "Over 80". He has brought an application alleging a breach of sections 8 and 9 of the Canadian Charter of Rights and Freedoms (hereinafter "Charter"). The parties requested that the matter proceed by way of a "blended" hearing. It was agreed that the evidence called by the Crown on the application would apply to the Trial. Mr. Stratton did not testify on the application. No additional evidence was called at trial.

2. POSITION OF THE PARTIES ON THE CHARTER APPLICATION

[2] Constable Williams was patrolling in the area of downtown Oshawa when his attention was drawn to a motor vehicle going slightly over the speed limit. He turned to pursue this vehicle and caused it to come to a stop. Mr. Stratton was operating the vehicle. Constable Williams subsequently arrested him for impaired operation of a motor vehicle and made a demand for samples of his breath.

[3] The applicant alleges that Police Constable Williams did not have sufficient grounds to stop his motor vehicle nor did he have reasonable and probable grounds to arrest for impaired driving. The applicant submits that he was detained contrary to section 9 of the Charter and the seizure of breath samples violates section 8 of the Charter. The applicant seeks the exclusion of observations made by Constable Williams and exclusion of the breath samples as a remedy.

[4] The respondent submits that there were sufficient grounds for the stop and the officer had reasonable and probable grounds to arrest for impaired operation of a motor vehicle.

3. RULING ON THE CHARTER APPLICATION (AND TRIAL)

[5] The Crown has not proven the impaired driving allegation beyond a reasonable doubt. As a result Mr. Stratton is found not guilty of this allegation. While it is not necessary for me to address the merits of the Charter argument as it pertains to the impaired driving matter I will address the Charter argument for the purposes of appellate review.

[6] The applicant has established on a balance of probabilities that the stop and arrest in this case violated section 9 of the Charter. Pursuant to the analysis set out in R v. Grant, 2009 SCC 32, I find that the appropriate remedy is the exclusion of the observations made by the officer.

[7] The Crown has not satisfied me on a balance of probabilities that Constable Williams had reasonable and probable grounds to stop Mr. Stratton, seize samples of his breath, or arrest him. The resulting breach of section 8 is not saved by resort to the analysis in Grant. The breath samples are excluded. Mr. Stratton is acquitted of that allegation of "Over 80".

[8] These are my reasons on the Charter application and trial.

4. ONUS

[9] In the ordinary course the applicant bears the onus to prove a breach of the Charter on a balance of probabilities (R v. Collins). In this case the Crown properly concedes there was a warrantless search and seizure of breath samples. As a result, the burden shifts to the Crown to show on a balance of probabilities that there were reasonable and probable grounds for the search or seizure (R v Haas). With respect to the section 9 application the onus is on the applicant to establish that the stop was arbitrary on a balance of probabilities (R v Nartey, [2013] O.J. No 1550 (OntCA) at para 14).

5. FACTORS RELEVANT TO REASONABLE AND PROBABLE GROUNDS

[10] Evaluating the officer's reasonable and probable grounds requires me to consider his experience and the observations he testified about on the application.

Background and Experience of the Investigating Officer

[11] Constable Williams testified that he had 15 years of police experience. He was cognizant of the fact that drinking and driving investigations rely on detail and careful investigation and acknowledged that he had a duty to capture the evidence in the case. He knew that it was important that details be recorded and the information be available to a Court reviewing the case.

Operation of the Motor Vehicle

[12] Constable Williams testified that his attention was drawn to Mr. Stratton's motor vehicle because it was driving at a higher speed than normal. He testified that in his mind the speed was not "normal driving behaviour". In direct examination he further testified that he would estimate the speed as between 60 and 75 km per hour in a 50 km hour zone. In cross-examination he testified inconsistently and indicated that the speed was between 60 and 70 km per hour. In direct examination he testified that the speed was concerning for that time of night (it was conceded there was no traffic and no other vehicles in the area). He then testified in cross-examination that had he observed the vehicle being operated in this fashion during rush hour it would not have been as concerning.

[13] It is significant that when pressed on the issue of speed during cross-examination it became apparent that the officer had not noted the speed of Mr. Stratton's motor vehicle in his police notebook or other notes at the time of his investigation. It then became clear that he was attempting to estimate speed from his recollection of events that occurred approximately 10 months earlier without the aid of contemporaneous notes about speed.

[14] The officer described Mr. Stratton's vehicle executing turns at a speed in excess of "normal driving behaviour". He could not articulate further descriptive particulars concerning this observation.

[15] The officer testified during direct-examination that Mr. Stratton's vehicle was travelling within its lane of travel but at times the vehicle possibly touched the lines several times. During cross-examination he indicated it happened once while the vehicle was driving straight.

[16] It is a small point but the officer testified that the subject vehicle he was investigating was a silver Chevrolet Impala. Surprisingly, it was during cross-examination that the Court learned that this was incorrect. It was revealed that the vehicle being operated that day was a Mazda motor vehicle. The officer explained the mistake based on the fact that he relied upon the wrong Ministry of Transportation records in preparing his notes.

[17] The core factor considered by Constable Williams concerning his decision to stop Mr. Stratton's motor vehicle was revealed after he ran the licence plate of the vehicle to obtain the registered owner's address. He formed the opinion that the driver was not taking a direct route to his residence. He then drew a specific negative inference and found this action to be a sign of impairment. He subjectively believed that this meant that the driver was impaired and was trying to evade the police. He further concluded that the driver did not want to be investigated or arrested in front of his residence so he was driving away from his registered address. In forming this opinion he disregarded other possible rational explanations (e.g. Mr. Stratton was driving his passenger home). There was no suggestion by Constable Williams that he perceived that Mr. Stratton was conscious of the police vehicle or that Mr. Stratton was actively seeking to evade the police.

[18] Based on all of these circumstances I find Constable Williams' evidence concerning his observations of driving to be unreliable. He made no contemporaneous notes about speed and then sought to estimate speed in court based on his memory from 10 months prior. Even if I accepted his evidence, driving perhaps 10 KM over the speed limit and touching the lane markings within a lane of travel is not evidence of "poor" driving.

[19] I do not endorse the subjective view of the officer regarding the negative inference he drew from Mr. Stratton's direction of travel. Objectively, this subjective conclusion is too much of a leap from the available facts and inferences.

[20] It is important to note that Constable Williams cited no other basis in law or statutory authority for stopping the vehicle that night. I will address this issue further later in this judgment. The basis provided by the officer for stopping Mr. Stratton's motor vehicle is not supportable when I consider his evidence objectively.

Indicia of Impairment – Odour of Alcohol

[21] In direct examination Constable Williams testified that as he approached Mr. Stratton's vehicle he could smell an odour of alcohol from ten feet away. In cross-examination he again confirmed his direct testimony that he could smell the odour from ten feet away. He was directed to his notes. His memory was refreshed. He then corrected himself and said he was 5 feet away.

[22] The officer did not resort to an Approved Screening Device. There were two occupants in the vehicle. He did not take any steps to isolate the driver such that he might be able to distinguish whether the odour of alcohol was emanating from the breath of the driver, as opposed to the breath of the passenger[1], or simply the interior of the motor vehicle.

[23] Finally, it is of great significance that the officer never testified that an odour of alcohol was emanating from the breath or mouth of Mr. Stratton.

Indicia of Impairment – Positioning in the Vehicle

[24] In direct examination the investigating officer described some unusual positioning of the driver's body upon approach by the officer. During cross-examination it became clear that what was being described was Mr. Stratton sitting appropriately, but failing to angle his right shoulder slightly towards the officer to speak to the officer.

[25] As a consequence there was nothing really significant to draw from this positioning although I accept that the officer subjectively found it to be significant.

Indicia of Impairment – Face

[26] The investigating officer testified that Mr. Stratton had a pale face and that this was a symptom of "extreme intoxication". There was no basis provided for the conclusion that a pale face is consistent with extreme levels of intoxication. I agree with the testimony of the officer that the observation of red eyes could be attributed to a multitude of circumstances or when considered along with other observations could be consistent with impairment. This is also true for the observation of glassy eyes. This is also true for a pale face or a red face. But it is not sufficient to merely assert that a pale face means extreme intoxication when there is no support for that assertion. I believe that the officer was asserting this point in combination with the other indicia he subjectively considered.

Indicia of Impairment – Conversation

[27] Constable Williams testified that he asked for Mr. Stratton's driving licence twice. Each time Mr. Stratton responded "what". Mr. Stratton's speech was described as extremely slurred, deliberate, and slow. The second "what" was described as slurred and not normal speech. Some of what Mr. Stratton said was not captured by the officer and he indicated there was some mumbling on the part of Mr. Stratton. Constable Williams relied on Mr. Stratton's speech as a sign of impairment. Mr. Stratton was described as motioning with his left hand. He was also reaching toward his left pocket with slow and deliberate movements. Approximately 15 seconds later the officer formed the opinion that Mr. Stratton's ability to operate the motor vehicle was impaired by alcohol.

[28] I find that it is probable that Mr. Stratton displayed this behaviour and I accept the officer's recount. The difficulty I have with this area is that the officer testified that there was further conversation with Mr. Stratton (apart from the conversation that was not understandable) yet it was not recorded. Consequently, it is not available for consideration by this Court.

[29] Police officers should write down or otherwise record the words of a suspect in case they become a defendant. Where a police officer fails to record relevant conversation with a suspect or accused person there is an evidentiary vacuum. Context is missing. A fulsome account is missing. Trying to objectively assess the officer's subjective recount of observations of speech on this record (i.e., two words) is difficult because Constable Williams did not capture the entire conversation that he is relying on to support his subjective observations.[2] This diminishes the weight that I attribute to these observations.

Indicia of Impairment – Balance

[30] In direct examination the Constable Williams testified that Mr. Stratton exhibited no difficulty with balance when getting out of his vehicle. During cross-examination he confirmed this evidence. Later on during cross-examination he then testified that he remembered that he had to assist Mr. Stratton to get out of the motor vehicle and back to the cruiser. There was no particular detail concerning this new evidence. This important evidence surfaced for the first time during cross-examination. I question the reliability of this observation. I find that it should be given little to no weight as a result.

Findings: Reasonable and Probable Grounds

[31] In R v. Bush 2010 ONCA 554, the Ontario Court of Appeal provided comprehensive guidance concerning the proper approach to evaluating reasonable and probable grounds. The officer in this case need not have a prima facie case or proof beyond a reasonable doubt. The subjective component of reasonable and probable grounds requires the officer to have an honestly held belief that the suspect committed the offence. Having considered the officer's evidence and the submissions of counsel I find Constable Williams honestly believed he had subjective grounds to stop, investigate, and arrest Mr. Stratton. The objective component requires that I find that a reasonable person placed in the position of the officer would conclude that there were reasonable and probable grounds for the arrest.

[32] I have set out the observations outlined by Constable Williams. An assessment of reasonable and probable grounds involves considering all of the facts in a comprehensive manner rather than dissecting the grounds in isolation.

[33] I recognize that police officers have statutory powers to investigate the sobriety of motorists. Constable Williams did not assert any statutory powers basis for his investigation. It is crucial to these reasons to understand that this was not a RIDE stop or a "roving" or "random" RIDE stop. Constable Williams did not even rely on a generalized impaired driving concern (e.g. leaving a licenced establishment or area with licenced establishments). Finally, he did not rely on any general concern with the operation of motor vehicles including licencing or insurance. Ultimately, he relied on very slight speed and proceeded directly to a subjective belief that a person not driving towards their listed address at that time of the morning was impaired and seeking to avoid the police. He intended to stop the motor vehicle based on these beliefs. He possessed these beliefs prior to the traffic stop. These beliefs formed his grounds for the traffic stop. These subjective beliefs are not supportable objectively as grounds to stop a driver to check for sobriety.

[34] Having stopped the motor vehicle, Constable Williams did not use a roadside screening device nor did he take steps to investigate (i.e. isolate) the odour of alcohol. This would have been a good situation to use a roadside screening device. It would have been the perfect tool to confirm or deny the suspicions he harboured. It would have informed him if the odour of alcohol was emanating from the driver.

[35] I find that Constable Williams did not have reasonable and probable grounds to cause Mr. Stratton to stop his vehicle or to arrest him.

6. FINDING: SECTIONS 8 AND 9 OF THE CHARTER

[36] I find that Constable Williams stopped Mr. Stratton's motor vehicle in the absence of reasonable and probable grounds. The applicant has established a breach of section 9 of the Charter on a balance of probabilities.

[37] With respect to the s.8 application, the respondent Crown has not satisfied me that Constable Williams possessed grounds to demand a sample of breath.

[38] I must now analyse these breaches pursuant to section 24(2) of the Charter.

7. GRANT: SECTION 24(2) OF THE CHARTER

[39] Section 24(2) requires me to consider whether in "all of the circumstances" admission of evidence obtained by a Charter breach would "bring the administration of justice into disrepute." The Supreme Court of Canada outlined this task in Grant (paras 67 to 69):

67 The words of s. 24(2) capture its purpose: to maintain the good repute of the administration of justice. The term "administration of justice" is often used to indicate the processes by which those who break the law are investigated, charged and tried. More broadly, however, the term embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole.

68 The phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.

69 Section 24(2)'s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.

70 Finally, s. 24(2)'s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.

Seriousness of the Charter-Infringing State Conduct

[40] Under this heading I must consider whether the admission of the evidence would bring the administration of justice into disrepute.

[41] The conduct in this case was deliberate but I do not find that it was malicious. Constable Williams was honest and forthright with the Court. I do not find bad faith in the sense of bias or prejudice or that he targeted Mr. Stratton for untoward reasons. On the other hand I do not find "good faith" either. The standard of investigation was low. Was this due to poor note-taking? Was this due to poor training? Was this due to faulty or insufficient recollection of the events? I have considered carefully the suspicion that perhaps Constable Williams did in fact have sufficient grounds at the time of the events but the passage of time has robbed him of an ability to articulate the grounds. If so, this is probably due to the state of his notes and lack of independent recollection. In any event I must rule on the record before me. In these circumstances, where objectively the grounds cannot be supported, the Court has a responsibility to distance itself from such investigations.

[42] I believe that Constable Williams was professional and treated Mr. Stratton appropriately and respectfully. But the deliberate actions in this case, no matter the causal reason, supports exclusion of the evidence on this branch of the test (Grant, para 75).

Impact on the Charter-Protected Interests of the Accused

[43] Mr. Stratton was arrested, handcuffed, and taken to the police station. He was released after 5:00 AM in the morning. His car was towed. He received an administrative licence suspension. I have not heard evidence concerning the readings in this case. This detention is significant. I find that the physical acquisition of the breath samples themselves was minimally intrusive.

[44] The officer should have used a roadside screening device to confirm that which he subjective expressed -- a suspicion. That he could have used a roadside screening device on this occasion does not provide an after the fact justification to admit the readings.

[45] Having regard to the specific impact on the interests of Mr. Stratton this ground supports exclusion in my view.

Society's Interest in an Adjudication on the Merits

[46] Breath samples are highly reliable. The truth-seeking function of trials is supported by the admission of such reliable evidence. The evidence is important to the Crown's case. Without the evidence the prosecution fails. The observations made by the officer do not support a conviction on the impaired. This branch of the test leans toward the admission of the evidence of the breath samples.

Conclusion

[47] The public supports police initiatives to combat the prevalent crime of "drinking and driving". Some Constitutional protections are suspended in the name of these investigations because of public safety. Parliament has legislated in this area to provide tools to police officers. There is legislative support for a variety of investigative approaches for stopping a motor vehicle to investigate sobriety. Some of these approaches violate the Charter and have been saved under section 1 of the Charter. These are the sacrifices made by the public in the name of protecting the public against the problem of "drunk driving". These sacrifices must be balanced by expeditious, professional, and minimally intrusive investigations on the part of the police using the statutory tools and relying on good police training. In my respectful view a standard must be maintained. This is how the criminal justice system maintains public confidence.

[48] When I consider the balance between the truth-finding function and adjudication of the case on its merits as against the exclusion of the evidence I find that the evidence should be excluded. In my respectful view the investigation in this case does not meet a minimal standard and should not ground a criminal conviction.

Disposition

[49] Having regard to the breach of section 9 of the Charter I would exclude the observations made by Constable Williams as the appropriate remedy as this is not one of the clearest cases justifying a stay of proceedings. What remains cannot support a conviction to the criminal standard. I should note that even if I did not exclude the observations in this case I would have dismissed the impaired driving allegation because having evaluated the evidence available, I have a reasonable doubt. Given the section 8 breach the breath sample readings are excluded and Mr. Stratton is acquitted on that count.

Released: December 9, 2014

Signed: "Justice M. S. Felix"

Footnotes

[1] Or both the passenger and the driver for that matter.

[2] The officer testified that he could not make out some of the conversation because it was obscured. This leaves me with the record established by his testimony – two words.