Court File and Parties

Ontario Court of Justice

Date: 2016-03-10

Court File No.: Halton 15-679

Between:

Her Majesty the Queen

— and —

Andrew James McMichael

Before: Justice David A. Harris

Heard on: December 7, 2015

Reasons for Judgment released on: March 10, 2016

Counsel:

• L. Jago, counsel for the Crown
• N. Cake, counsel for the defendant Andrew James McMichael

Judgment

HARRIS, DAVID A., J.:

Introduction

[1] Andrew James McMichael is charged with operating a motor vehicle in the City of Burlington on February 8, 2015 when his blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of his blood.

[2] Crown counsel elected to proceed summarily.

[3] Mr. McMichael pled not guilty and a trial was held.

[4] Mr. McMichael had applied for an order that all evidence of the results of any Intoxilyzer tests should be excluded pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms.

[5] Counsel agreed that we should proceed with a "blended" hearing in which all of the evidence would be applicable to both the Charter application and to the trial.

[6] Police Constables Christine McKenzie and Darren Bonney testified for the Crown. No evidence was led by the Defence.

[7] There is no issue that Mr. McMichael was operating his motor vehicle in Burlington on February 8, 2015 or that the two Intoxilyzer tests showed respectively results of 250 and 240 milligrams of alcohol in 100 millilitres of his blood.

[8] The issues before me are:

1. whether the evidence referred to above should be excluded pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms; and

2. whether the presumption set out in section 258(1)(c)(ii) of the Criminal Code does not apply since the breath tests were not conducted as soon as practicable.

[9] More particularly with respect to the Charter application, counsel for Mr. McMichael argued that the evidence should be excluded on the basis that the police did not have the reasonable suspicion necessary to make the initial approved screening device demand, in violation of sections 8 and 9 of the Charter.

[10] I will deal with the Charter application first.

Reasonable Suspicion

[11] Section 254(2) of the Criminal Code provides that:

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:

(a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and

(b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

[12] The Supreme Court of Canada reviewed the reasonable suspicion standard in R. v. Chehil. That case involved the use of a sniffer dog by police with respect to luggage on a domestic flight in Canada where the same standard is applicable. In that decision Karakatsanis J. noted that "Parliament has employed this standard when authorizing certain searches in legislation" including section 254.

[13] Karakatsanis J. stated the following.

[14] The reasonable suspicion standard requires that the entirety of the circumstances, inculpatory and exculpatory, be assessed to determine whether there are objective ascertainable grounds to suspect that an individual is involved in criminal behaviour. It does not require the police to investigate to rule out exculpatory circumstances.

[15] Reasonable suspicion must be based on objectively discernible facts, which can then be subjected to independent judicial scrutiny which is exacting, and must account for the totality of the circumstances.

[16] She cited the reasons of Binnie J. in R. v. Kang-Brown, where he provided the following definition of reasonable suspicion:

The "reasonable suspicion" standard is not a new juridical standard called into existence for the purposes of this case. "Suspicion" is an expectation that the targeted individual is possibly engaged in some criminal activity. A "reasonable" suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.

[17] Reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts, but reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime.

[18] Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience. A police officer's grounds for reasonable suspicion cannot be assessed in isolation.

[19] Reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors. Factors that give rise to a reasonable suspicion may also support completely innocent explanations. This is acceptable, as the reasonable suspicion standard addresses the possibility of uncovering criminality, and not a probability of doing so.

[20] Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors. The totality of the circumstances, including favourable and unfavourable factors, must be weighed in the course of arriving at any conclusion regarding reasonable suspicion.

[21] However, the obligation of the police to take all factors into account does not impose a duty to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations.

[22] It is not permissible for the reasonable suspicion inquiry to assess circumstances learned after the execution of the search.

Application to the Facts

[23] In this case, I have no doubt that Constable McKenzie subjectively had the requisite suspicion before making the approved screening device demand. The issue is whether that suspicion was objectively reasonable.

[24] The facts on which Constable McKenzie acted are as follows.

[25] She received information from the police dispatcher that an individual at the Aldershot GO station could not walk properly to his vehicle. He was weaving while walking to his vehicle and the vehicle was weaving as he drove it out of the lot.

[26] Constable McKenzie said that the weather conditions at this time were that snow was falling and accumulating on the ground. The wind was chilly and brisk and whipping at times causing the snow to blow as well.

[27] Constable McKenzie saw the particular motor vehicle eastbound on Plains Road crossing King Road. Mr. McMichael was the driver. After he passed a traffic island just east of the intersection, he executed a U-turn and then, while now westbound on Plains Road, turned right into a McDonalds Restaurant there.

[28] The more conventional method of entering that McDonalds would have been to turn left at the traffic lights onto King Road and then turn right into McDonalds from that street.

[29] Mr. McMichael drove across the parking lot towards the exit of the drive-thru lane and then turned to the right, mounted a curb and came to a stop. The vehicle would have blocked any other vehicles from coming out of the drive-thru. Constable McKenzie noted that snow had been piled up on the curb by a snow plow making the presence of the curb more obvious than usual.

[30] She approached the driver's side of the vehicle. The window was down and the heat was blaring inside. She noted a strong odour of evergreen air freshener coming from inside the vehicle and observed two air fresheners, one located on the defroster vent by the A-pillar on the driver's side and one on a vent towards the centre of the vehicle. She thought that these locations were quite unusual places for someone to put such air fresheners.

[31] Mr. McMichael produced the requested documents without any difficulty.

[32] His eyes were red.

[33] Constable McKenzie did not smell any alcohol anywhere, but the brisk, cold wind made it difficult to smell anything.

[34] The air fresheners led her to be concerned that Mr. McMichael had been drinking and was trying to cover it up and so she asked him if he had been drinking. He replied "no".

[35] She was still concerned that there had to be some reason for him to be driving the way he had, and she asked him if he had been taking anything else. He replied "no".

[36] She asked him what the result would be if he blew into an approved screening device. He replied "nothing".

[37] She also asked him about the place where he stopped his car. He replied that he thought it was a parking space.

[38] She then formed the suspicion that he had alcohol in his body and asked for an approved screening device to be brought to her, read rights to counsel to Mr. McMichael and read him the approved screening device demand.

[39] She allowed Mr. McMichael to remain in his vehicle with the engine running and the heater on until another police officer arrived with an approved screening device. She then directed Mr. McMichael to go to the rear of her police car where he eventually provided a sufficient sample of breath into the approved screening device, registering a "fail" result.

[40] That provided her with reasonable and probable grounds to arrest Mr. McMichael for an over 80 offence and demand that he provide samples of his breath into an approved instrument.

[41] The issue before me, as I said earlier, is whether Constable McKenzie's suspicion was objectively reasonable.

[42] I am satisfied that it was. My reasons for this are as follows.

[43] She did not smell any alcohol on Mr. McMichael's breath or in his car. She did not see any evidence of alcohol being readily available to Mr. McMichael. He denied drinking any alcohol.

[44] However she was an experienced police officer (13 years) who believed that the behaviour of Mr. McMichael, both in the GO station parking lot and in the driving that she observed, indicated that his ability to operate a motor vehicle was impaired by either alcohol or drug but that she did not know which.

[45] She conceded that Mr. McMichael denied drinking and that she could not smell alcohol. However she recognized that there were several factors present which might impede her ability to smell alcohol. The wind was brisk and cold. Mr. McMichael had rolled down his window before she got to his car. There were air fresheners placed in unusual places leading to the strong odour of air freshener masking anything else. Mr. McMichael gave extremely short answers to her questions. She described these answers as "minimal".

[46] All of these were factors that could prevent her from smelling alcohol and, other than the brisk, cold wind, all of these factors resulted from actions taken by Mr. McMichael. It was quite reasonable for Constable McKenzie to suspect that he had done these things deliberately for the very purpose of concealing the presence of alcohol in his body.

[47] Accordingly, I find that Constable McKenzie did not infringe his rights in any way and the application to exclude the breath results is dismissed.

Section 24(2) Analysis

[48] In any event, even if I was satisfied that Mr. McMichael's rights had been infringed, I would not have excluded the evidence pursuant to section 24(2) of the Charter.

[49] The test set out in R. v. Grant by the Supreme Court of Canada directs me to assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to:

(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.

[50] I must balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

[51] With respect to the first factor, any Charter breach here was not a serious one.

[52] Constable McKenzie recognized that the situation was unusual in that she had neither smelled alcohol nor obtained an admission of consumption, but she considered all of the circumstances before forming her suspicion. At worst, her suspicion fell just short of being objectively reasonable.

[53] Constable McKenzie was also very conscious of Mr. McMichael's rights and made efforts to protect them. For example, since she anticipated some delay in the delivery of the approved screening device, she informed him of his right to counsel.

[54] She allowed him to stay in his vehicle with the heat on while they waited for the approved screening device to arrive. She thereby attempted to minimize any inconvenience caused by the process.

[55] The low degree of seriousness of any Charter-infringing conduct here favours inclusion of the evidence.

[56] With respect to the second factor, the detention and the ensuing breath tests were both minimally intrusive both in terms of what took place and the evidence obtained.

[57] In reaching that conclusion, I have taken note of the obiter comments in R. v. Grant, supra, that:

While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability. On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted. For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive.

[58] Previously, it often seemed that any infringement of the rights of those accused of drinking and driving would result in the automatic exclusion of the breath results. This passage would appear to indicate that this will not always be the case now.

[59] As for the third factor, the offence is recognized to be a serious one. The societal interest in having a trial on the merits would usually favour admission here.

[60] I must also consider the fact that the evidence which McMichael seeks to have excluded is reliable. "Subject to other evidence in any given case, breath samples and their testing by ASDs and Intoxilyzers are generally considered reliable evidence."

[61] I find, then, that the truth-seeking function would be better served by the admission of the evidence than by its exclusion.

[62] So, after considering all the circumstances here, I am satisfied that admission of the evidence would not bring the administration of justice into disrepute.

As Soon as Practicable

[63] The presumption of identity, set out in section 258(1)(c)(ii) of the Criminal Code, provides that the results of breath tests are, in the absence of evidence to the contrary, deemed to represent the blood alcohol level of the accused at the time of driving.

[64] Before this presumption can apply, the Crown must establish beyond a reasonable doubt that a number of preconditions have been met. These include the requirement that two breath tests must be conducted using an approved instrument operated by a qualified technician. The first test must occur no later than two hours after the offence was alleged to have occurred. The second test must occur at least 15 minutes later and both tests must occur as soon as practicable.

[65] In that regard, the Ontario Court of Appeal has stated clearly that "as soon as practicable" does not mean as soon as possible. It means that the tests must be taken within a reasonably prompt time.

[66] In deciding whether the tests are taken as soon as practicable I must look at the entire chain of events, bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied reasonably. The Crown is obligated to demonstrate that in all the circumstances, the breath samples were taken within a reasonably prompt time, but there is no requirement that the Crown provide a detailed examination of what occurred during every minute that the accused is in custody.

[67] I must remember, however, that:

the "as soon as practicable" requirement in s. 258(1)(c)(ii) of the Criminal Code was enacted as a protection for accused persons which goes hand in hand with the presumption that the results of the breath tests are, in the absence of evidence to the contrary, deemed to represent the blood alcohol level of the accused at the time of driving. This presumption, often referred to as the presumption of identity, benefits the prosecution by eliminating the need to call additional evidence to relate the breath test results back to the time of driving. The as soon as practicable requirement assists in ensuring that the presumption operates fairly and leads to accurate results. Consequently, any delay impinges on a protection Parliament has enacted for the benefit of the accused.

Application to the Facts

[68] In this case, Mr. McMichael was stopped at or shortly after 9:09 p.m.

[69] The first breath test was completed at 11:06:43. It therefore occurred about 2 minutes short of the two-hour limit.

[70] The second test occurred more than 15 minutes later at 11:29:23. Both tests were conducted using an approved instrument operated by a qualified technician.

[71] The only issue before me is whether I am satisfied that both tests were conducted as soon as practicable.

[72] Constable McKenzie formed her initial suspicion at 9:12 p.m.

[73] She asked for an approved screening device to be brought to her. She informed Mr. McMichael of his right to counsel and read the approved screening device demand.

[74] An approved screening device arrived at 9:25 p.m. She instructed Mr. McMichael how to provide a sample. After three insufficient samples, he provided a suitable sample that resulted in a "fail".

[75] She arrested Mr. McMichael at 9:32 p.m. and then explained to him her reasons for doing so. She had a male officer search him and place his pocket contents into a property bag in the front seat of the cruiser. Mr. McMichael was handcuffed and placed in the rear of the cruiser. She read him his right to counsel again and discussed with him a request by him to speak to a Halton Regional Police Officer who had shared a residence with him. She then read the breath demand, caution and secondary caution to him. She also requested that a qualified technician be made available. All of this was done by 9:40 p.m.

[76] She then drove Mr. McMichael directly to the Burlington police station, arriving at 9:53 p.m.

[77] Constable Bonney testified that he was a police constable with the Halton Regional Police Service and that he was a qualified technician on duty in Milton that night. There was not a qualified technician available in Burlington and so Constable Bonney received a request at 10 p.m. to go to the Burlington station to conduct the breath tests in this case.

[78] He left Milton at 10:02 p.m. and arrived in Burlington at 10:22 p.m.

[79] The Intoxilyzer was ready to go, but the simulator was turned off. This has to heat up to 34 degrees Celsius and it takes about 30 to 40 minutes to do this. The necessary equipment was ready for him to input information regarding Mr. McMichael at 10:58 p.m.

[80] Constable Bonney's usual practice was to have a test subject brought to him at this point. In this case, however, in order to speed the process up, he asked for Mr. McMichael to be brought in to him earlier, at 10:46 p.m., and dealt with preliminary matters while waiting for the equipment to be ready.

[81] At 10:58 p.m. he input the necessary information regarding Mr. McMichael into the Intoxilyzer.

[82] The first test was conducted at 11:06 p.m. and the second at 11:29 p.m.

[83] I am aware that it does not usually take two hours and twenty-five minutes for breath tests to be completed in Halton.

[84] I am also aware, however, that there were a number of unusual factors present that night which would account for that length of time.

[85] The weather and road conditions were such that police officers driving safely would take longer than usual when delivering an approved screening device, transporting an accused person to the police station or travelling from the Milton station to the one in Burlington.

[86] A qualified technician would usually be available in Burlington itself. Finding another technician and getting him to Burlington both take time.

[87] The simulator is usually left on. The fact that it was not on this occasion also delayed the tests.

[88] These were all unusual events. If they were to happen regularly, one might expect the Halton Regional Police Service to take steps to avoid them. In the circumstances here, however, I find no fault with the actions of the police. They did what they could under difficult circumstances. I am satisfied beyond a reasonable doubt that the tests were conducted as soon as practicable.

Conclusion

[89] I am, therefore, satisfied that the Crown has proven beyond a reasonable doubt that Mr. McMichael was operating his motor vehicle when his blood alcohol concentration was 240 milligrams of alcohol in 100 millilitres of blood. I find him guilty of the offence charged and enter a conviction.

Released: March 10, 2016

Signed: "Justice David A. Harris"