Court File and Parties

Court File No.: Brampton 14-2690 Date: 2015-05-07 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Mr. Patrick Kelly

Before: Justice Patrice F. Band

Reasons for Judgment released on: May 8, 2015

Counsel:

• Ms. C. Sibian, counsel for the Crown
• Mr. D. Lent for the defendant, Mr. Patrick Kelly

Band J.:

1: INTRODUCTION

[1] Mr. Kelly was investigated by Peel Regional Police Constable E.J. Nicholson after leaving a licensed establishment and driving away in his pick-up truck. After registering a fail on an approved screening device ("ASD") at the roadside, Mr. Kelly was arrested for the offence of driving with excess alcohol and taken to the police station to provide samples of his breath into an approved instrument. His blood-alcohol content was above the legal limit, and he was charged accordingly.

[2] PC Nicholson's stated basis for making the ASD demand at the roadside was that Mr. Kelly admitted to having had three beers and his breath smelled of alcohol. Mr. Kelly did not slur, drive poorly or have trouble with his balance. The "fail" result was therefore central to PC Nicholson's grounds for making the breath demand pursuant to s. 254(3) of the Criminal Code.

[3] Mr. Lent urges me to find that PC Nicholson could not have reasonably relied on the accuracy of the "fail" result for two reasons.

[4] First, Mr. Kelly testified that he had remnants of a just-chewed Halls throat lozenge in his mouth when he gave his breath sample into the ASD. I will expand upon this argument, which I refer to as the "Lozenge Issue," in detail below.

[5] Second, PC Nicholson delayed administering the ASD – which was a Drager Alcotest 6810 – for a number of minutes out of a concern about residual mouth alcohol owing to recent beer consumption. But he failed to turn his mind to the possibility that Mr. Kelly had recently consumed certain food items or aromatic fruit juices which were listed in a Memorandum issued by the Ontario Provincial Police dated November 26, 2013. I will refer to this second argument as the "OPP Memorandum Issue."

[6] As a result, Mr. Lent submits that the breath demand and ensuing seizure of Mr. Kelly's breath samples were made without reasonable and probable grounds in violation of s. 8 and that they ought to be excluded pursuant s. 24(2) of the Charter of Rights and Freedoms.

[7] Mr. Lent also argues that Mr. Kelly's s. 10(b) Charter right to consult with counsel privately was violated because his conversation was captured on videotape at the police station and could also have been watched (but not heard) by police officers or employees on monitors within the station.

[8] For the following reasons, I have found that PC Nicholson could not have reasonably relied on the ASD "fail" result and that Mr. Kelly's breath samples were obtained in violation of his s. 8 Charter rights. As a result, it is unnecessary for me to address Mr. Lent's other arguments in detail. Nonetheless, I will return to the OPP Memorandum Issue at the end of these Reasons.

2: GOVERNING LEGAL PRINCIPLES – SECTION 8

[9] Because breath samples seized pursuant to the Impaired/Over 80 regime are warrantless searches, the Crown bears the burden of demonstrating, on a balance of probabilities, that the seizure was reasonable: see R. v. Haas (2005), 76 O.R. (3d) 737 (C.A.), leave to appeal ref'd [2005] S.C.C.A. No. 423.

[10] Reasonable and probable grounds entail both a subjective and objective component: Storrey v. The Queen (1990), 53 C.C.C. (3d) 316 (S.C.C.).

[11] Whether reasonable and probable grounds exist is a fact-based analysis, based on the totality of the circumstances: R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453, at para. 54 (C.A.).

[12] If an officer does not, or reasonably could not, rely on the accuracy of the test results, the results cannot assist in determining whether there are reasonable and probable grounds to arrest: R. v. Mastromartino, [2004] O.J. No. 1435 at para. 23 (S.C.J.).

3: THE LOZENGE ISSUE – SECTION 8

[13] The Lozenge Issue boils down to this: did Mr. Kelly have a lozenge in his mouth just prior to providing a sample of his breath into the ASD? If so, PC Nicholson would have made him spit it out before proceeding any further. He would have done so to satisfy himself that the cough drop did not contain alcohol.

[14] Resolution of this issue turns entirely on PC Nicholson's credibility and reliability where his evidence conflicts with Mr. Kelly's.

[15] Mr. Kelly testified that he put a lozenge in his mouth shortly before PC Nicholson handed him the ASD. PC Nicholson asked what he had in his mouth, and Mr. Kelly told him it was a Halls lozenge. PC Nicholson did not respond or ask him to spit it out. He did not appear to be concerned about it. Mr. Kelly then chewed it and swallowed most of it just before giving his sample.

[16] I believe Mr. Kelly's evidence. He was not significantly challenged on the issue. He explained it in some detail, and it is consistent with his habit of using throat lozenges. When asked by the Crown in cross-examination whether Halls lozenges contain alcohol, Mr. Kelly said that he had "no idea." That particular answer struck me as a sign of honesty considering the obvious appeal that a different answer would hold in the circumstances.

[17] By contrast, as the following excerpt shows, PC Nicholson's evidence on this point in cross-examination was problematic:

Q. My suggestion to you is that when my client was in the back seat, in his hands he was unwrapping something and putting it into his mouth, and you turned around and asked him what it was.

A. I'm sorry. I have no recollection of that.

Q. I agree there's nothing in your notes about that, correct?

A. No, Sir, there's not.

Q. Does your memory allow you to say that happened or it didn't happen?

A. I don't believe it happened, Sir. I have no recollection of it. I don't believe it happened.

Q. So does that mean it may have happened, "I can't remember", or it definitely didn't happen?

A. To my recollection it did not happen, Sir.

Q. 'kay. Because my further suggestion to you is that he responded by saying it was a cough drop, and he went to put it into his mouth.

A. No, Sir. I have no recollection of that. And, no, like I say, I don't believe that happened, no.

Q. And my further suggestion to you is, shortly thereafter within a minute or two you had him blow into the roadside screening device and receive the fail on the device?

A. No, Sir. As I said, you've heard the times that I, I asked him the questions. He had nothing put in his mouth at that point. And we waited six minutes, and I ASD'd him. That's what happened.

Q. Had that occurred, that is to say, if my client had put a lozenge in his mouth within one or two minutes before the use of the roadside screening device, would that have caused you concern?

A. No, Sir, 'cause I would have examined the packaging to see if it contained alcohol. As I say, Halls does not. A lot of them don't. I'm not aware of any that actually contain alcohol, Sir. But I would've had him – had I have seen him put something in his mouth he would've spit it out immediately.

Q. I see. Because that would've eliminated any concern with respect to mouth alcohol?

A. Well, no, Sir. As I said, I would have examined the packaging to find out what it was he put in his mouth too, Sir.

Q. Sure. Because that would've told you whether there was alcohol in the mouth or not. That would put…

A. No, if there was alcohol in what he was putting in his mouth, Sir. But again, if he took something, put it in and spit it right back out it wouldn't affect the result if it was done a few minutes later, Sir, no.

Q. Right, but my, my, my suggestion to you, Sir, is he put it in his mouth and he did not spit it out.

A. That would be incorrect, Sir. People don't get tested with items in their mouth.

Q. Okay.

A. I do not allow that as part of my testing. We don't do that.

Q. And you're saying it did not happen in this…

A. Did…

Q. ... case?

A. …not happen, Sir.

See: Transcript of Proceedings, pp. 59-61

[18] This portion of PC Nicholson's evidence raises a number of concerns. First, his position evolved from a lack of recollection about the lozenge issue to a belief that it did not occur and then to a categorical denial.

[19] Second, it was contradictory. On one hand, PC Nicholson would have made Mr. Kelly spit out the lozenge and would have then checked the packaging to determine if it contained alcohol. On the other hand, PC Nicholson denied that he would have had concerns about alcohol content.

[20] Third, it ended with a declaration that any alcohol content would have been of no consequence. This response was in the nature of opinion or advocacy, neither of which PC Nicholson was in a position to provide.

[21] But one thing is clear from PC Nicholson's evidence: he would not allow a test subject to provide a breath sample with a lozenge in his or her mouth. In my view, the only reasonable inference one can draw from his firm stance is that he would want to assure himself that the lozenge is alcohol-free.

[22] As a result, I find that PC Nicholson could not and would not have reasonably relied on the ASD result. The Crown has not established that the warrantless seizure of Mr. Kelly's breath samples was authorized by law. It therefore constitutes a violation of his s. 8 rights.

4: GOVERNING LEGAL PRINCIPLES – SECTION 24(2)

[23] In R. v. Grant the Supreme Court explained that courts must have in mind the long-term impact of admission or exclusion of evidence on the administration of justice. In doing so, I must consider three factors.

[24] First, I must consider the seriousness of the Charter-infringing state conduct and assess whether the effect of admitting the evidence would be to effectively condone state deviation from the rule of law by failing to dissociate the court from the unlawful police conduct. State misconduct exists on a continuum from inadvertent error to wilful or reckless disregard for Charter rights.

[25] In R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, the Supreme Court also explained that the nature and effect of police testimony can be considered at this stage. In that case, the officer's in-court testimony had been misleading. In R. v. Nartey, [2013] O.J. No. 1550 (C.A.), the fact that an officer had tailored his evidence to fit a pattern that was allowed by the courts was a factor at this stage of the inquiry. In R. v. Spin, [2014] N.S.J. No. 3 (C.A.), the fact that an officer's evidence was not reliable or trustworthy was considered at this stage.

[26] Second, I must consider the seriousness of the impact of the Charter-infringing state conduct by identifying the interests infringed and the degree to which the violation impacted on those interests. The greater the intrusion, the more important it is for the court to exclude evidence.

[27] The Supreme Court in Grant explained that taking breath samples is a minimally intrusive procedure both physically and because it does not touch upon the "biographical core of personal information." But there can be more to an excess alcohol charges than breath samples. Persons can be subjected to arrest, handcuffing, transportation to a police station and detention, sometimes in a police cell. These consequences constitute deprivations of liberty. See: R. v. Au Yeung, 2010 ONSC 2292, [2010] O.J. No. 1579 (S.C.J.)

[28] Third, I must consider society's interest in adjudication of cases on their merits. The relevant inquiry at this stage is whether the truth-seeking function of the trial process would be better served by admission or exclusion of the evidence. The seriousness of the case, the reliability of the evidence and its importance to the prosecution are important factors.

[29] In R. v. Bernshaw, [1995] 1 S.C.R. 254, the Supreme Court of Canada highlighted the serious nature and potential consequences of impaired driving. However, I am also mindful of the fact that the seriousness of the offence ought not to take on disproportionate significance: see Harrison, supra at para. 34.

[30] At this stage, the Court must "balance the interests of truth with the integrity of the justice system." See: Grant, supra, at para. 82.

[31] I must attempt to balance these three factors in order to assess whether the admission of evidence obtained by a Charter breach would bring the administration of justice into disrepute.

5: ANALYSIS – SECTION 24(2)

(a) Seriousness of the Charter-infringing state conduct

[32] At the time of the investigation, PC Nicholson's conduct was not particularly serious. However, I am not able to find that it was the result of good faith. To the contrary, I have grave doubts about that which lead me to conclude that this factor weighs heavily in favour of exclusion of the evidence in this case.

[33] The reasons for this are among my concerns with PC Nicholson's in-court testimony. As I told Crown counsel during submissions, PC Nicholson's attitude changed significantly from the moment that defence counsel stood up to begin his cross-examination. Thereafter, and by contrast to his examination-in-chief, I found it to be at times self-serving, non-responsive, argumentative and misleading. The following examples will suffice to make the point.

[34] In response to the Crown's questions, even the very narrowly crafted ones such as "where did you go from the office?", PC Nicholson was content to provide very long answers that moved the prosecution's case forward. See, for example, the Transcript of Proceedings at pp. 8-9 where that question generated a litany of details about the accuracy and calibration of the ASD and the steps PC Nicholson had taken to satisfy himself that it was in good working order. (See also p. 13, line 19 to p. 14, line 7).

[35] In response to questions about the weather in cross-examination, and whether it was windy on that particular night, PC Nicholson's response was:

…But again, none of that – none of this transpires – the testing and all that transpires in the car, which is not windy and not cold.

This response was argumentative and in the nature of advocacy.

[36] In response to questions about the possible effect that hand-sanitizer might have on ASD results in general, PC Nicholson testified that hand-sanitizers "are perfumed" and that no such smell was detected at the time of this investigation. It is simply not true that all hand-sanitizers are perfumed. This response was argumentative and baseless.

[37] In relation to questions about the possible effect of windshield-wiper fumes on ASD results, PC Nicholson testified that "it is very unlikely you'd get any fumes enough in such concentration to affect the reading." This response was in the nature of opinion or advocacy.

[38] After conceding, at rather long last, that a mouth-alcohol effect of 5 milligrams of alcohol per 100 millilitres of blood could mean the difference between a reading of 49 and a roadside warning and suspension, PC Nicholson nonetheless added "but, again, there was nothing in this instance to indicate that he had had any of that, Sir." Again, this answer was in the nature of advocacy aimed at moving the prosecution's case forward.

[39] Mr. Lent brought the OPP Memorandum to PC Nicholson's attention. While PC Nicholson had never seen it, it was admitted as Exhibit 2 on consent of the Crown, who indicated that she did not dispute its authenticity.

[40] In that Memorandum, the Deputy Commissioner indicates that:

hand-sanitizers with an alcohol base, fruit juices, sugary foods/drinks and bread products will affect the readings of the ASD. The ASD is capable of capturing alcohol based fumes in the surrounding area of the device (ie. windshield wiper fluid).

The Memorandum further states that according to the manufacturer of the Alcotest 6810:

aromatic fruit juices (fruit juice), certain foods such as white bread and sugared foods, can cause an alcohol result if the test is conducted immediately after eating or while eating.

[41] Upon first being confronted with the issue, PC Nicholson testified that he had been shown part of an OPP Manual that referred only to concerns about aromatic fruit juices and not the other food items contained in the OPP Memorandum. He responded that "the aromatic fruit juices would be a minor amount if anything." Later, he testified that he would not normally ask a person if they had had bread or anything like that because he was "aware that if there was any result it would be small and not cause a fail." He then explained that he had never been trained in regards to bread and told defence counsel:

The only person who's brought up bread, Mr. Lent, is you in that directive apparently from the OPP.

[42] That answer was, in my view, an effort to cast the possible interference that foods could cause as something that was unknown to PC Nicholson. But a short time later, upon further probing, PC Nicholson disclosed the fact that he had recently had an email exchange with a toxicologist at the Centre of Forensic Sciences ("CFS") about issues surrounding the Alcotest 6810 and whether "food products would make a difference."

[43] I found this portion of PC Nicholson's evidence misleading.

[44] While PC Nicholson had discussed the issue with his sergeant, he had not raised it with an inspector because the Alcotest 6810 is a newer device that "a lot of them aren't even trained on." He believes that the CFS are studying it, that they "don't fully agree with the OPP manual either" and that they will let the PRPS know if they find a problem with the device.

[45] I can understand PC Nicholson's firm belief in the ASD's reliability based on his prior experience and training. What I find troubling is that the contents of the OPP Memorandum appear to have had no effect on that confidence. Surely in his 33 years of experience PC Nicholson has seen devices come and go. Yet, his position was that concerns with the Alcotest 6810 are "a problem the OPP are having." As he put it, "to me there is still, again, no problem affecting the results or the accuracy of the device."

(b) Impact on Mr. Kelly's Charter-protected interests

[46] Aside from having been compelled to provide breath samples, Mr. Kelly was arrested, handcuffed and transported to a police station. He was in police custody for approximately two hours and twenty minutes from the time of the traffic stop to his release from the station. The impact on his liberty interests was neither extreme nor benign. In the circumstances of this case, however, it is difficult to say that this factor weighs heavily in favour of exclusion of the evidence.

(c) Society's interest in a prosecution on the merits

[47] Impaired driving is undoubtedly a serious problem that causes damage, injury and death in our society. The breath samples are reliable evidence without which the Crown cannot prove its case.

[48] The truth-seeking function of the trial is best served by admission of such reliable evidence. But this goal must be balanced with the long-term integrity of the justice system.

[49] I am of the view that concerns with police testimony such those I have described in this case go to the heart of the integrity of the justice system and are capable of outweighing the concern for truth-seeking.

6: CONCLUSION – SECTION 24(2)

[50] Having balanced the factors above, I am satisfied that a reasonable person, informed of the relevant facts and Charter values, would conclude that the long-term repute of the administration of justice would be adversely affected by the admission of the breath samples.

[51] As result, the breath samples are excluded and Mr. Kelly is entitled to an acquittal.

7: THE OPP MEMORANDUM ISSUE

[52] I was not persuaded that the OPP Memorandum Issue constituted a s. 8 violation because there is no evidence that PC Nicholson was aware of it before he investigated Mr. Kelly. Likewise, in the absence of evidence that it was shared by the OPP, I am unable to find that he ought to have been aware of it.

[53] But the fact of the matter is that the OPP Memorandum has now been made an exhibit in this case on consent. It has also been discussed in the case of R. v. Hurdle, [2014] O.J. No. 6239 (C.J.), which also involved a PRPS investigation.

[54] If the Alcotest 6810 is susceptible to the effects of hand-sanitizers, windshield wiper fluid, certain foods and fruit juice – as the manufacturer appears to indicate and the OPP appears to believe – then it seems to me that the PRPS ought to make inquiries and advise its members.

[55] ASDs are important tools for law enforcement, but they are not infallible. Consider the now notorious effect of residual mouth-alcohol: see Mastromartino, supra, at para. 32. The issue is now well understood and ASDs remain effective and reliable when operated properly.

[56] It may be that the effect of certain foods and juices on the Alcotest 6810 is insufficient to cause a false fail. But it is entirely conceivable that they could generate false warns. While falling short of criminal sanctions, these have serious, immediate and lasting consequences on members of the public.

[57] I am troubled that a constable would not bring concerns about a new-model ASD to the attention of those in his police service who have the power to make the appropriate inquiries and decisions, choosing instead to maintain his faith in the device until further notice from the CFS, a source he prefers and with which he has been personally corresponding.

[58] As a result, I have chosen to attach the OPP Memorandum as an Appendix to these Reasons.

Released: May 8, 2015

Signed: Justice P.F. Band