Court Information

Court File No.: [Not provided]

Date: February 4, 2015

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Jayson Johnson

Before: Justice Heather McArthur

Reasons for Judgment released: February 4, 2015

Counsel:

• C. Jabbour for the Crown
• E. Chan for the defendant/applicant

McArthur, J.:

A. Introduction

[1] Mr. Jayson Johnson is facing one count of driving while his blood alcohol level exceeds the legal limit contrary to s. 253(1)(b) of the Criminal Code.

[2] Defence counsel argues that Mr. Johnson's rights pursuant to s. 8 of the Canadian Charter of Rights and Freedoms were violated when the arresting officer asked him to blow on the officer's finger to determine if he had been drinking. Defence counsel further submits that the resulting evidence should be excluded pursuant to s. 24(2). Without this evidence, he argues, the officer would not have had the reasonable suspicion required for the use of the Approved Screening Device (ASD), and without the results of the ASD, would not have had the grounds for a Breathalyzer. Crown counsel counters that the officer took reasonable investigative steps and that any violation of s. 8 of the Charter was justified pursuant to s. 1 of the Charter.

[3] Thus, to put it simply, the legal issue to be determined is as follows: Was Officer Swaine's request that Mr. Johnson blow on his finger constitutional? I propose to briefly outline the facts before turning to my analysis.

B. The Facts

[4] On March 23, 2013, Officer Aaron Swaine pulled Mr. Johnson's car over after he noticed that the taillights were not fully illuminated. In the officer's experience, improper headlights can be indicative of drinking and driving.

[5] When he approached the car, Swaine noticed that Mr. Johnson had bloodshot and watery eyes. Swaine noticed a smell of alcohol in the car, but could not immediately determine if the smell was coming from Mr. Johnson. When asked by the officer, Mr. Johnson denied that he had been drinking.

[6] Officer Swaine asked Mr. Johnson to blow on his finger so he could better determine if the smell of alcohol was coming from him. Swaine had seen a senior officer use this technique in the past, and thought that it was a useful way to determine whether someone had been drinking without having them step out of the car. He also thought it was preferable to sticking his head into the car to see if he could smell alcohol, as that could be dangerous.

[7] Mr. Johnson complied with the request, and when he did, Swaine smelled alcohol on his breath. At that point, Swaine felt he had the reasonable suspicion required to make an ASD demand. Mr. Johnson complied with the demand and registered a Fail. Based on that, Swaine believed that he had reasonable and probable grounds to arrest Mr. Johnson for over 80 and to read the breath demand. Mr. Johnson ultimately provided two samples into the Breathalyzer. The first sample showed a blood alcohol concentration of 128 milligrams of alcohol per 100 millilitres of blood. The second showed a blood alcohol concentration of 110 milligrams of alcohol per 100 millilitres of blood.

[8] I turn now to the legal issue to be determined.

C. Was Officer Swaine's Request That Mr. Johnson Blow on His Finger Constitutional?

[9] Both counsel proceeded on the basis that having Mr. Johnson blow on the officer's finger violated s. 8 of the Charter. In light of the position of the parties, I am prepared to assume for the purposes of my reasons that the technique used by the officer violated the defendant's s. 8 rights.[1]

[10] Section 1 of the Charter recognizes that the individual rights enshrined therein are not absolute. The state may encroach upon individual rights so long as the criteria of s. 1 of the Charter are met. To bring Officer Swaine's conduct within s. 1 of the Charter the Crown must establish that he acted pursuant to some authority prescribed by law which either expressly or by necessary implication limits the Charter rights to which the defendant would otherwise be entitled. The Crown must further establish on a balance of probabilities that the limit is a reasonable one that can be demonstrably justified in a free and democratic society.

[11] Constable Swaine had express statutory authority to stop Mr. Johnson's car. Section 48 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (HTA) provides as follows:

48(1) A police officer, readily identifiable as such, may require the driver of a motor vehicle to stop for the purpose of determining whether or not there is evidence to justify making a demand under section 254 of the Criminal Code.

[12] As Doherty J. noted in R. v. Smith at para. 18, s. 48 of the HTA authorizes an officer to take reasonable steps to determine whether there is evidence to support an ASD demand. As he explained at paragraph 28, s. 48 authorizes any procedure or procedures that are both reasonable and done for the purpose of determining whether the officer has grounds for a s. 254 demand. As Doherty J. stated, it is impossible to provide an exhaustive list of procedures that will meet these criteria in all cases. But, it is safe to say that a procedure cannot be reasonable within the meaning of s. 48 unless it can be performed at the site of the detention, with dispatch, with no danger to the safety of the detainee and with minimal inconvenience to the detainee.

[13] Investigative steps that have been found to be justified pursuant to s. 48 include asking a driver to get out of the car and perform coordination tests (R. v. Saunders); having a driver sit in the police cruiser so the officer can better determine if he had alcohol on his breath (R. v. Troester); and using multiple investigative techniques including questioning the driver, having the driver undergo coordination tests and requiring the driver to blow into the ASD (R. v. Smith).

[14] Here, Officer Swaine's request that Mr. Johnson blow on his finger was clearly asked for the purposes referred to in s. 48 of the HTA. Further, the request was asked at the scene of the detention, took little time, and in no way endangered or further inconvenienced the defendant. Defence counsel argued that Swaine could have asked Mr. Johnson to step out of the car and speak with him at the side of the road in order to determine if he smelled alcohol on his breath. That course of action, however, which is clearly authorized by s. 48, would amount to greater inconvenience to the defendant and could lead to a longer detention.

[15] In my view, Officer Swaine's request that Mr. Johnson blow on his finger was minimally intrusive and eminently reasonable. It was a reasonable investigative step taken to determine whether he had evidence to make a demand under s. 254(2). The request was a proper exercise of authority granted under s. 48 of the Criminal Code. Thus, this particular investigative step taken by Officer Swaine was prescribed by law.

[16] Moreover, I find that the limits on the defendant's constitutional rights allowed by s. 48 are reasonable and can be demonstrably justified in a free and democratic society. In my view, authorities such as R. v. Saunders, supra, R. v. Smith, supra and R. v. Orbanski, [2005] 2 S.C.R, inevitably lead to this conclusion.

[17] I find further support for this position in the decision of R. v. Weintz, 2008 BCCA 233. In that case, the British Columbia Court of Appeal found that an officer was constitutionally justified in asking a driver to blow into his face in order to determine if he had been drinking. (See also, R. v. Williams, 2011 BCPC 23).

D. Conclusion

[18] In conclusion, I find that Officer Swaine was constitutionally permitted to ask the defendant to blow on his finger to determine if he had been drinking. Based on that, Swaine formed a reasonable suspicion that the defendant had alcohol in his body and was justified in using the ASD. The defendant failed the ASD, and Swaine thus had reasonable and probable grounds to make the Breathalyzer demand.

[19] The first test showed the defendant with a blood alcohol concentration of 128 milligrams of alcohol per 100 millilitres of blood. The second showed a blood alcohol concentration of 110 milligrams of alcohol per 100 millilitres of blood. The Crown has thus established beyond a reasonable doubt that the defendant was driving with his blood alcohol level in excess of 80 milligrams of alcohol per 100 millilitres of blood. As a result, I find him guilty as charged.

Date: February 4, 2015

Signed: Justice Heather McArthur

Footnote

[1] Warrantless searches are presumed to be unreasonable unless they can be justified pursuant to the test set out in R. v. Collins, [1987] 1 S.C.R. 265. Under Collins, a search will be deemed reasonable if it is authorized by law, the law itself is reasonable and the manner in which the search was carried out was reasonable. (See also R. v. MacDonald, 2014 SCC 3) As I set out in my analysis regarding s. 1 of the Charter, in my view the technique used by Officer Swaine was authorized by s. 48 of the Highway Traffic Act, and that law is reasonable. Moreover, I believe that the search was carried out in a reasonable manner as it was done with dispatch and minimal inconvenience to the defendant. Thus, it seems a strong argument could be made that there was no s. 8 violation in this case. As I said, however, in light of the lack of argument on this point, I am prepared to proceed on the basis that there was a s. 8 violation.