Court File and Parties

Ontario Court of Justice

Date: 2015-03-05

Court File No.: Central East 14-10093

Between:

Her Majesty the Queen

— and —

Gregory Campbell

Before: Mr. Justice M. Felix

Heard on: January 7, 2014

Reasons for Judgment released on: March 5, 2015

Counsel:

• T. Hewitt, Counsel for the Crown
• T. Morris, Counsel for the Defendant

Table of Contents

1. Introduction and Overview
2. Position of the Applicant
3. Position of the Respondent
4. Issues
5. Constable Payne's Grounds Prior to the Requested "Physical Test"
6. Section 10(a) Breach
7. Allegation of Breach: Sections 8 and 9 of the Charter
8. Physical Coordination Tests – Parameters and Requirements
9. Conclusion – Section 8 and Section 9
10. Section 24(2) Analysis
11. Seriousness of the Charter-Infringing Conduct
12. Impact on Charter-protected Interests
13. Society's Interest in Adjudication on the Merits
14. Conclusion: Evidence Sought to be Excluded
15. The "Physical Test"
16. Observations of the Applicant Prior to the "Physical Test"
17. The Actus Reus of the Refuse Breath Sample
18. Disposition: Impaired Operation
19. Disposition: Refuse Breath Sample

Introduction and Overview

[1] The applicant Mr. Campbell is charged with Impaired Operation contrary to section 253(a) and Refuse contrary to section 254(5) of the Criminal Code of Canada arising out of a traffic stop on December 4th, 2013. The applicant alleged a breach of sections 8, 9, and 10(a) of the Charter of Rights and Freedoms. The matter proceeded as a blended Charter application and trial. The respondent Crown called Police Constable Payne (the arresting officer) and Police Constable Wannop (the intoxilyzer technician) on the application and trial. The applicant did not testify. The applicant bore the onus on the allegations concerning sections 9 and 10(a). The respondent accepted the onus on the section 8 allegation.

[2] Police Constable Payne and his partner observed a motor vehicle being operated in excess of 100 KM an hour in a 50 KM zone. The officers pursued the vehicle to where it had abruptly stopped at an intersection approximately 250 metres away. The vehicle did not move over to the right side of the road in response to the police cruiser's arrival. Constable Payne investigated the driver (Mr. Campbell) for speeding and his level of sobriety. Constable Payne observed signs of intoxication. He requested that Mr. Campbell get out of the vehicle and move to the rear of the vehicle. He asked him to do a "physical test" of his balance. Mr. Campbell was arrested for impaired operation.

[3] I find that there was a breach of sections 8 and 9 because Constable Payne lacked reasonable and probable grounds to arrest for impaired operation. I have excluded observations made at the roadside by Constable Payne. I am not satisfied beyond a reasonable doubt with respect to the allegation of impaired operation and Mr. Campbell is acquitted of that count. I have not excluded the communications made by Mr. Campbell related to the allegation of refuse breath sample. I am satisfied beyond a reasonable doubt of his guilt on that count and a conviction will be entered.

[4] These are my reasons for coming to these conclusions.

Position of the Applicant

[5] While Constable Payne had grounds to stop the motor vehicle in this case, the applicant submits that Constable Payne lacked reasonable and probable grounds to arrest for impaired operation. At best, Constable Payne had a reasonable suspicion at the point at which he asked the applicant to step outside his vehicle. Rather than using a roadside screening device, Constable Payne asked the applicant to perform a single "physical test". This approach was statutorily non-compliant, failed to conform to the approach mandated by the Criminal Code, and violative of sections 8 and 9.

[6] The applicant seeks the exclusion of the observations made as a result of the request for the "physical test", observations made of the applicant walking back to the rear of his vehicle, and the verbal statements made by the applicant adduced in support of the "refuse breath sample" allegation.

Position of the Respondent

[7] The respondent submits that Constable Payne had reasonable and probable grounds to arrest for impaired operation. Even if there was a breach the evidence should not be excluded pursuant to the analysis in R v Grant, 2009 SCC 32.

Issues

[8] I find that Constable Payne had grounds to cause the vehicle to come to a stop. The vehicle was being operated at an extremely high rate of speed in a residential area. There was no significant challenge to Constable Payne's honestly held subjective belief that the applicant could be arrested for impaired operation.

[9] There were two central issues on this Charter application: (1) whether the reasonable and probable grounds were objectively supportable; and (2) what role physical coordination tests administered by the investigating officer played in the formulation of reasonable and probable grounds.

[10] For the reasons outlined below, I find there was a breach of sections 8 and 9 of the Charter.

Constable Payne's Grounds Prior to the Requested "Physical Test"

[11] The court is guided by the approach to assessing reasonable and probable grounds set out in several cases (R v Shepherd, 2009 SCC 35; R v Bush, 2010 ONCA 554, paras 35-49 (ONCA); R v Censoni, [2001] OJ No 5189 (Ont Sup Ct)).

[12] Prior to approaching the applicant Constable Payne had noted the very high speed of the vehicle, the abrupt stop of the vehicle, and the fact that the vehicle did not move to the right from a stopped position in response to the emergency lights on the police SUV vehicle. The officer wanted to investigate the vehicle for speeding as well as the sobriety of the driver.

[13] During his interaction with the applicant (who was the sole occupant), there was a strong odour of alcohol emanating from the vehicle. There was some discussion about speeding. Then Constable Payne told the applicant that he could smell alcohol and asked how much alcohol he had consumed. The applicant hesitated, denied the consumption of alcohol, and indicated that he would blow into a machine to prove it.

[14] The officer noticed that the applicant had glassy brown eyes. Further, when he requested documentation the applicant at first told the officer that he had left his wallet at home. He then started fumbling with an MP3 player and/or cellphone before discovering and producing his wallet. The applicant displayed poor motor skills and ultimately provided his ownership and insurance but not a driver's licence.

[15] Constable Payne then advised the applicant that he could detect an increasing odour of alcohol in the vehicle and that it was emanating from his breath. The applicant denied consumption a second time.

[16] After discovering that the applicant was a suspended driver, the officer asked him to step out of the vehicle and move to the rear of vehicle. The applicant was described as slow and deliberate and took some time to get out of the vehicle. During the ten to twelve foot walk back to the rear of the vehicle the applicant was unsteady on his feet and veered off to his right. There was no issue with the applicant's footwear or the roadway to cause unsteadiness.

Section 10(a) Breach

[17] I will deal with this allegation first and then address the section 8 and section 9 breaches. The section 10(a) assertion concerned the motivation in asking the applicant to get out of the vehicle to perform physical tests. The applicant submits that the officer was attempting to gather more grounds by asking the applicant to get out of the vehicle. He did not advise the applicant that he was investigating a drinking and driving offence.

[18] I find that the applicant was sufficiently aware of the scope of the investigation by virtue of the questioning that occurred. The police officer asked about speeding and the consumption of alcohol. The applicant responded that he had not been drinking and was willing to prove it by providing a breath test. While the applicant did not testify on this blended application and trial, it is reasonable for me to infer that he understood the scope of the police inquiry. The argument made by the applicant amounts to the argument made in R v Iannotta, [2009] OJ No 5181 at paras 49-58 (Ont Supt Ct). In this case, the applicant was a suspended driver. Constable Payne could not permit him to be in care or control of the vehicle given that status.

[19] The applicant has not satisfied me on a balance of probabilities in relation to the section 10(a) breach. The request for the applicant to get out of the vehicle is causally linked to the sections 8 and 9 allegation and I will address this further.

Allegation of Breach: Sections 8 and 9 of the Charter

[20] I find that the officer held an honest subjective belief that he had grounds to arrest the applicant for impaired operation. The question remains whether those honest subjective grounds are sustainable when examined objectively.

Physical Coordination Tests – Parameters and Requirements

[21] Constable Payne requested that the applicant get out of his vehicle and perform a simple physical test of balance. The result of this test conveyed to Constable Payne that the applicant was unsteady on his feet and swaying.

[22] Section 254(2) of the Criminal Code provides an officer may demand compliance with both physical coordination tests and an approved screening device test. Section 254.1(1)(b) of the Criminal Code allows the Governor in Council to make regulations prescribing the physical coordination tests to be used. The physical coordination tests are specifically set out in Evaluation of Impaired Operation (Drugs and Alcohol) Regulations, SOR/2008-196, s 2:

PHYSICAL COORDINATION TESTS

SECTION 2

2. The physical coordination tests to be conducted under paragraph 254(2)(a) of the Criminal Code are the following standard field sobriety tests:

(a) the horizontal gaze nystagmus test;

(b) the walk-and-turn test; and

(c) the one-leg stand test.

[23] I have read this regulation in context, in its grammatical and ordinary sense. I then considered the scheme and purpose of section 254(2)(a) and the "drinking and driving" provisions overall in the Criminal Code (R v Dineley, [2012] 3 SCJ No 58).

[24] Parliament intended that the specified physical coordination tests be used when a demand is made pursuant to section 254(2)(a) of the Criminal Code. This is an area of law where Parliament has carefully balanced the public interest in the effective detection of alcohol-related offences against the individual Charter rights we all enjoy. Indeed, limitations to Charter rights have been endorsed with a view to ensuring that police officers have the tools they need to protect the public. Great care has been taken to set out the use of screening tools.

[25] A police officer gains access to tools by making a formal demand pursuant to section 254(2)(a) or (b) of the Criminal Code. Constable Payne did not "demand" compliance with section 254(2)(a). He did not intend to formally demand compliance. He simply asked the applicant to perform the one test in this case. He requested that the applicant perform a physical test.[^1] I need not decide on this application whether the principles of statutory interpretation require that all three tests be administered pursuant to the demand. The applicant expressed some reluctance to perform the test but ultimately complied.

[26] Constable Payne had no experience administering the physical coordination tests contemplated by section 254 of the Criminal Code. He had received no training in this area. He could not identify or provide any specifics concerning the physical coordination tests. He had a passing familiarity with the "first test" as he had observed a training officer in the past administer the tests.

[27] The manifest statutory non-compliance exhibited in the administration of this process renders the evidence gleaned of no probative value and deserving of exclusion. Absent the training or experience to administer physical coordination tests the results are of little or no value.

Conclusion – Section 8 and Section 9

[28] From the subjective perspective of Constable Payne, the totality of his reasonable and probable grounds included the physical test. It is difficult to divorce his articulation of reasonable and probable grounds from the physical test he requested.

[29] Constable Payne could not recall whether or not he had an ASD in his police vehicle that night. He acknowledged that he could have radioed a request for an ASD if he did not have one in the vehicle. During cross-examination the officer was asked what he would have done if the applicant had refused his request to perform the physical test or simply refused to get out of the vehicle. The officer testified that he would have requested an ASD to the scene and made the ASD demand. Clearly, he needed something more to formulate reasonable and probable grounds.

[30] The respondent has not established that Constable Payne had reasonable and probable grounds to arrest for impaired operation on a balance of probabilities. A breach of section 8 is the result.

[31] The applicant has established a breach of section 9 on a balance of probabilities.

Section 24(2) Analysis

[32] The applicant seeks the exclusion of the following evidence: (1) the observations of the applicant from the point at which he was asked to get out of the motor vehicle to when he reached the rear of his vehicle; (2) the observations made as a result of the request to perform a physical test; and (3) the statements made by the applicant relied upon to prove the "refuse".

[33] Part of the Grant assessment must focus on the nexus between the Charter-infringing conduct and the impugned evidence. The nexus may be temporal, contextual, causal or a combination of the three considerations (R v Wittwer, 2008 SCC 33). There is at minimum a temporal nexus between the Charter-infringing conduct and the three types of evidence. I will address the nature of the connection in a more fulsome manner below.

Seriousness of the Charter-Infringing Conduct

[34] The first inquiry focuses on the public perception of the rule of law and legal procedures. There is a continuum of Charter-infringing conduct ranging from minor violations to egregious conduct. As part of this inquiry, the court must place the conduct on that continuum.

[35] The officer possessed the following information:

1. The high speed of the vehicle;
2. The abrupt stop of the vehicle;
3. The vehicle failed to pull to the right upon contact with the police;
4. The applicant fumbled with documents;
5. While seeking his wallet the applicant produced his MP3/cellphone;
6. There was an odour of alcohol in the vehicle;
7. There was an odour of alcohol coming from the breath of the applicant;
8. The applicant denied consumption;[^2]
9. The applicant had glassy brown eyes;
10. The applicant was slow and deliberate coming out of the vehicle; and
11. The applicant veered off to the right while walking the 10-12 feet to the rear of the vehicle.

[36] Defence counsel sought to pin down Constable Payne to a particular point in time when the information he possessed crystalized into reasonable and probable grounds. The officer had some difficulty in articulating a specific point in time. I am mindful of the helpful guidance of Durno J. in Bush, supra at paras 55-56. I have resisted the urge to dissect his evidence in this fashion.

[37] The applicant would have had to get out of the motor vehicle. He was a suspended driver. I have no issue with the request to have him get out of the vehicle. He was not going to be operating that vehicle any further whether or not he was impaired.

[38] While I have found that the officer did not have reasonable and probable grounds to arrest, this is more a function of the mistaken reliance on the physical test he administered than a recognition that there were simply no grounds in this case. He erred in seeking to rely on the physical test that he "requested". He then relied upon this physical test along with all of the other factors to form his honest subjective belief in his grounds. I find that with respect to his subjective belief, there is no way to divorce the physical test from his formulation of reasonable and probable grounds. That being said, objectively speaking, he had many grounds available to support his subjective belief. This was a close call. These grounds mitigate the seriousness of the breach of section 8 and section 9.

[39] I find that the officer in this case made a judgment call to arrest based on reasonable and probable grounds. He should have used an ASD rather than attempting to mimic physical coordination tests. I rank the officer's error in this case and the consequent seriousness at the minimal to middle range of the spectrum in terms of conduct. I sincerely doubt that an informed member of the public would find the conduct of the officer to be egregious and deserving of serious condemnation.

[40] In coming to this conclusion, I am mindful that my objective assessment of his grounds is not a balm to address negligence or lack of training. I am also aware that my role is not to punish the police or scold the Durham Regional Police Service for failing to provide training to this officer with 5 years' experience. This court's role is to stand in the place of a reasonable person and ascertain whether the breach in this case is such that the long-term repute of the criminal justice system is better served by inclusion or exclusion of the evidence.

[41] The physical test was obtained by a simple request. Ultimately, the applicant complied. The officer subjectively believed that this was an appropriate step to take. Notwithstanding the approach he took, the exercise in providing the physical test was moments long. It was not demeaning, capricious, or heavy-handed. The officer mimicked what he had seen training officers perform in the past. While I have not heard evidence on this application or trial as to what a proper physical coordination test would look like, I have not heard evidence that the physical test administered was totally improper. I believe that the officer was trying to administer the test in the manner that he had observed in the past.

[42] While it is a close call, in my respectful view this area of inquiry favours inclusion.

Impact on Charter-protected Interests

[43] This inquiry requires the court to examine the impact of the Charter-infringing conduct on the Charter-protected interests of the defendant. The challenge is to identify the protected interest and examine the seriousness of the intrusion.

[44] The Charter-protected interests engaged by section 8 relate to the protection of a reasonable expectation of privacy. Section 9 relates to detention that is arbitrary. In this case, there was a serious infringement — an arrest and detention that occurred without reasonable and probable grounds.

[45] The applicant was operating a motor vehicle at the time of the infringement. There is a diminished privacy interest in this voluntary state-regulated activity. He was not lawfully operating a motor vehicle – he was a suspended driver and had been for several years since 2010. As outlined above, there was no construction of the events that night that would have resulted in him being left within his vehicle, free to go on his way. He was arrested, his car was towed, and he was taken to the police station where he refused to provide breath samples.

[46] Based on the evidence on this application, my view is that this area of inquiry marginally favours exclusion of the evidence.

Society's Interest in Adjudication on the Merits

[47] This inquiry must analyse the societal interest in the case being decided on its merits. I must decide whether the truth-seeking function of the criminal trial process is better served by the admission or exclusion of the impugned evidence.

[48] I will now assess the three categories of evidence for which the applicant seeks exclusion. This area of inquiry is particularly focussed on the exclusion of evidence back at the station – the foundation of the refuse breath sample allegation. This area of inquiry favours inclusion of the evidence.

Conclusion: Evidence Sought to be Excluded

[49] There is no mathematical formula to apply. The product of the three inquiries must be considered and weighed. The greatest factor to consider in this balance is the fact that a well-meaning professional officer made a poor decision to request a physical test. I am mindful that the public is keenly interested in the effective detection of drinking and driving offences and the overall protection of the public. That being said I do not think the long-term repute of the criminal justice system is best-served by sanctioning the approach taken in this case.

The "Physical Test"

[50] If a police officer seeks to use a tool provided by Parliament, then the officer must be reasonably familiar with the tool and use it properly. The public is entitled to expeditious, professional, and minimally intrusive investigations by professional (i.e. well-trained) officers.

[51] The officer in this case was acting within the proper scope of his public duty. He was professional. He was understandably concerned about the driving he had observed. I must consider the error he made with the instructive wisdom of Bush and in the context of a realistic and pragmatic consideration of the Charter-infringing conduct. The impact on the applicant was essentially a delay for a matter of seconds at the side of the road.

[52] Nevertheless, for the reasons outlined in this decision, the observations made by Constable Payne as a result of the request for a physical test are excluded. The approach was statutorily non-compliant. The approach set out in the Criminal Code was mandated by law and regulation. Parliament took care to ensure that the physical coordination tests were specified. They were specified so that officers could receive training in the tests and then potentially possess an informed subjective view of a subject's performance on the test. This informed view of the performance on the tests would be relevant to investigative grounds. The product of the test in this case was unreliable evidence. The product of this "physical test" should not be available to support the reasonable and probable grounds of the officer.

Observations of the Applicant Prior to the "Physical Test"

[53] The observations made once the applicant was asked to get out of the vehicle are important observations relevant to the reasonable and probable grounds of Constable Payne.

[54] There is a temporal link to the Charter-infringing conduct of the request for the physical test. I must balance this with the fact that Constable Payne asked the applicant to get out of his vehicle after discovering he was a suspended driver. The applicant necessarily came out of the vehicle. Once Constable Payne was aware that the applicant was a suspended driver, he could not permit him to operate a motor vehicle further. The applicant was going to be removed from the vehicle that night.

[55] I have already addressed the fact that there is really no 10(a) Charter issue related to the decision to request that the applicant step out of his vehicle. The connection between the Charter-infringing behaviour grounded in section 8 and 9 is more problematic.

[56] I have considered Constable Payne's evidence and I find that his request for the applicant to step out of the vehicle was related both to his concern that the applicant was a suspended driver and his intention to request a physical test. He did not have reasonable and probable grounds to arrest prior to requesting the physical test in his mind. The observations made as the applicant got out of the vehicle and performed the physical test were interwoven into the subjective grounds.

[57] Notwithstanding the fact that the applicant was a suspended driver, the main purpose in asking the applicant to get out of the vehicle was for the performance of the physical test. This nexus leads me to conclude that the appropriate remedy is the exclusion of this evidence. This evidence is therefore not available to support the reasonable and probable grounds of the officer.

The Actus Reus of the Refuse Breath Sample

[58] The intoxilyzer technician received grounds from Constable Payne and formulated his own independent grounds to make a lawful demand for a sample of the applicant's breath. The intoxilyzer technician was entitled to receive hearsay information from Constable Payne and make an independent demand. The applicant refused the lawful demand of the intoxilyzer technician.

[59] The intoxilyzer technician, politely, patiently, and persistently sought the breath sample from the applicant. Notwithstanding these attempts, the applicant clearly and unequivocally refused to provide a breath sample.

[60] The exclusion of the many statements made by the applicant would end the prosecution with respect to the refuse breath sample.

[61] The court must carefully consider the circumstances surrounding the statements made. First of all, the applicant spoke with a criminal lawyer prior to the demand made by the intoxilyzer technician. Second, there are no classic "voluntariness-type" issues associated with the statements made by the applicant. Third, the interaction between the applicant and the intoxilyzer technician was captured on videotape and the court had access to the entire interaction. Fourth, there was an independent breath demand as outlined above.

[62] Finally, with a view to dispassionately documenting the rationale for my decision, and in no way meant to disparage the applicant, he was uncooperative, vocal, and at times verbally combative. I recognize this not to suggest that one deserves punishment for bad behaviour, but because it is relevant to the nexus between the Charter-infringing conduct and the evidence sought to be excluded. The applicant's will was not overborne. He was not treated in a harsh manner. The intoxilyzer technician was calm, polite, and informative. He tried to persuade the applicant to provide a sample.

[63] I have carefully considered the cases presented by counsel in this case. Most helpful was R v Soomal, [2014] OJ No 2160 (ONCJ) where my colleague Stribopoulas J. excluded evidence of a refuse breath sample because he was satisfied that the 10(b) breach was significantly connected to the defendant's decision to refuse. Had the defendant's access to counsel of choice been respected, she might not have refused. The court found that the Charter-infringing conduct had a significant impact on the defendant.

[64] In this case there is no such significant nexus between the Charter-infringing state conduct and the actus reus of the refuse breath sample. The applicant perceived a general injustice I must admit. However, the nature of the section 8 and 9 breach that I have found was not visited upon him that night. His refusal to provide a sample originated with his own independent decision. There is no nexus between the request for a physical test at the roadside and the manifest way in which the applicant refused to provide a breath sample.

[65] I believe that the long-term repute of the criminal law is better served by the admission of the applicant's voluntary statements. I am confident that an informed public would understand and accept the rationale by which the court has excluded the two other categories of evidence. An informed public would question the exclusion of reliable evidence voluntarily provided by the applicant. In a clear, unequivocal way, he maintained that he would not cooperate with a lawful demand. The statements made to the intoxilyzer technician are admitted.

Disposition: Impaired Operation

[66] Notwithstanding my ruling with respect to the Charter application I must now examine the evidence to determine whether or not the Crown has proven the case beyond a reasonable doubt.

[67] I have excluded two categories of evidence related to the reasonable and probable grounds of the investigating officer. While not explicitly argued before me, the effect of the exclusion of this evidence is to irreparably erode the reasonable and probable grounds of the investigating officer. Given my findings, the two categories of evidence were not available to support proof beyond a reasonable doubt on the impaired allegation. They were only potentially available to support reasonable and probable grounds.

[68] While I have a suspicion that Mr. Campbell was committing the offence of impaired operation, I am not satisfied beyond a reasonable doubt that he was operating his motor vehicle while impaired by the consumption of alcohol that night. There is no doubt that there was evidence of speed and an abrupt stop. The failure to pull to the right is insignificant. The driving was not so poor that I could be satisfied to the criminal standard. If I have a doubt, it must be resolved in favour of the defendant.

[69] The allegation of impaired operation is dismissed.

Disposition: Refuse Breath Sample

[70] The merits of the refuse were not significantly litigated before me. The focus was on the Charter argument. This is perhaps because the statements made by Mr. Campbell disclose a clear and unequivocal refuse. There was simply no way that Mr. Campbell was going to provide a sample of his breath. I have already outlined the patient approach of the intoxilyzer technician above. I am satisfied beyond a reasonable doubt that Mr. Campbell committed the offence of refuse breath sample and he will be found guilty of that count.

Released: March 5, 2015

Signed: "Justice Felix"

[^1]: It is unclear in the evidence whether Constable Payne believed the test he requested was one of the three tests set out in the Criminal Code. In any event there was no evidence called on the application to explain what might constitute the actual test or tests provided in the Criminal Code and I may not take judicial notice of what constitutes one or all of those tests.

[^2]: I infer that Constable Payne did not believe the applicant.