Court Information
Ontario Court of Justice
Date: February 29, 2016
Court File No.: Central East - Newmarket 4911-998-14-08484-00
Parties
Between:
Her Majesty the Queen
— and —
Mitchell Gale
Before the Court
Justice: David S. Rose
Heard: November 10, 2015
Reasons for Judgment Released: February 29, 2016
Counsel
For the Crown: B. Juriansz
For the Defendant Mitchell Gale: D. Burke
ROSE J.:
Facts and Charges
[1] Mr. Gale was charged with Impaired Driving Operation and Over 80 Operation of a Motor Vehicle on October 10, 2014. At the conclusion of its case Mr. Juriansz fairly conceded that the Crown could not prove the Impaired Operation count and invited me to acquit Mr. Gale of that charge, which I did.
[2] At the outset of the trial Mr. Burke conceded Date, Time and Jurisdiction. As the trial progressed it became clear that the triable issue was an allegation of a breach of Mr. Gale's rights under s. 8 of the Charter, thus narrowing the issues to be decided even further.
Crown's Evidence
[3] The Crown called two witnesses. PC Ford is a York Regional Police Constable with 15 years of experience. On October 10, 2014 he was in the area of Highway 7 and Interchange Way in Vaughan at 0118. He described that area as being occupied by a number of liquor-serving establishments, a movie theatre, and retail stores such as Staples. He saw a vehicle at that time, a beige Grand Prix with Oklahoma licence plates. The car was east bound on Commerce Avenue, when PC Ford saw it turn into a private lot going south bound. It then went west bound on Interchange Way. Ford deemed this as suspicious, and decided to check the driver for sobriety. He admitted that he had no evidence of impaired vehicle manoeuvres prior to pulling him over. He activated his roof lights, and the car pulled over in a manner which was not suspicious. Ford went to the driver's side window and saw 4 male occupants, including the driver. The driver had his Oklahoma licence, ownership, and insurance in hand. The licence photo matched the driver which was Mitchell Gale. Ford detected an odour of alcohol coming from the car. PC Ford asked Mr. Gale if had anything to drink but could not hear the answer. He observed Mr. Gale to have his eyes half shut, and blood shot. In his evidence, he said that Mr. Gale could barely look him in the eyes. He described Mr. Gale's neck as swaying, and his speech was slurred. He asked Mr. Gale to shut off the ignition, and exit the vehicle which he did. PC Ford then arrested Mr. Gale for impaired operation at 0120. In cross-examination he said that he interpreted the droopy eyes to be a symptom of alcohol consumption, not tiredness. He said that the swaying he observed on Mr. Gale was in the neck area, not in the feet. He said Mr. Gale had a southern accent, but had never met him before or spoken with him.
[4] PC Ford described Mr. Gale's post arrest conduct as cooperative. He complied with all demands. Mr. Gale was placed in the rear of Ford's cruiser and at 0126 was read Rights to Counsel. He was cautioned and, at 0131 read a Breath Demand. Mr. Burke took no issue with the wording of the demand. Mr. Gale said that he understood the Demand. PC Ford took Mr. Gale to the police station, where at 0150 he was booked in by Sgt. Garner. It was a 10–15 minute drive from the scene to the police station. PC Ford described the booking procedure as "nothing out of the norm." Booking normally takes about 5 minutes, but PC Ford candidly admitted that he did no specific recollection of the booking procedure. Mr. Gale was put in touch with a lawyer after PC Ford explained the Canadian process to him but PC Ford was not sure who facilitated that. PC Ford received Mr. Gale back from the breath technician later on and served him with documents at 0335 am.
[5] PC Goodal is a Qualified Breath Technician with York Regional Police Force. He is so qualified on the Intoxilyzer 8000C. He was told at 0126 a.m. on October 10, 2014 that his services would be needed, so he went to 4 District Police Station, arriving around 0140 a.m. He readied the Approved Instrument. He conducted the standard battery of preparatory tests and checks and satisfied himself that the Instrument was ready to analyze breath. He received Mr. Gale into his custody at 0214 a.m. from Cst. Salvatore. He identified Mr. Gale in Court. Goodal read the Breath Demand at 0215 a.m. and a Secondary Caution at 0216 a.m.
[6] At 0220 a.m. and again at 0241 a.m. PC Goodal received samples of Mr. Gale's Breath into the Approved Instrument which analyzed them to be 148 and 141 mg of alcohol in 100ml of blood respectively. The test records were put into evidence. Goodal testified that Mr. Gale was a cooperative subject.
[7] Mr. Burke called no defence and conceded that he was not contesting the statutory requirements under s. 258 with respect to the breath tests. The only argument is that PC Ford lacked the reasonable and probable grounds to arrest Mr. Gale and make a breath demand.
Issues
Did PC Ford have reasonable and probable grounds to arrest Mr. Gale?
If he didn't, and Mr. Gale's rights under s. 8 of the Charter have been breached, should the breath readings be excluded from evidence at this trial?
The S. 8 Argument
[8] Arrest of any person by a police officer requires reasonable and probable grounds to do so. This in turn has both an objective and subjective component. In the Impaired Driving Context s. 254(3) requires that the police officer making the demand have an honest belief that the arrestee has committed an offence under s. 253 and objectively there must be reasonable grounds for this belief. Making such a demand, namely one under s. 254(3) has both statutory and constitutional elements. See R. v. Bernshaw, [1994] S.C.J. No. 87, and R. v. Shepherd, 2009 SCC 35, [2009] S.C.J. No. 35.
[9] The subjective component of reasonable and probable grounds amounts to an actual, honest belief that the suspect committed an offence. The objective component asks the question whether the officer's opinion is supported by objective facts, from the perspective of the officer at the time of the arrest. See R. v. Censoni 2001 Carswellont 4590 (S.C.); R. v. Ho 2015 ONCA 559. The officer is entitled to draw inferences using his or her experience, recognizing the context in which the officer is conducting his or her investigation. While not an onerous threshold, "…neither is it so diluted as to threaten individual freedom." See Censoni at para. 43; R. v. Bush 2010 ONCA 554 at para. 46. Reasonable grounds is not a mathematical exercise, and exculpatory explanations for indicia of impairment do not detract from the reasonable grounds: Censoni at para. 43; R. v. Bush at para. 32. It is a question of fact with each case determined on its own facts without embarking on a dissection of the officer's grounds in isolation which were developed "…without the luxury of judicial reflection." See Bush at para. 55; Censoni at para. 48. As Durno J. (sitting ad hoc) noted, "The test is where, objectively, there are reasonable and probable grounds to believe the suspects ability to drive was even slightly impaired by the consumption of alcohol" see Bush at para. 48.
[10] In the case at Bar, PC Ford had evidence of an odour of alcohol in the car. That indicator was general to all four occupants, and not specific to the accused driver. He had no evidence of bad driving, no admission of alcohol consumption by Mr. Gale, and the physical symptoms of alcohol consumption were limited to slurred speech, droopy eyes and unsteadiness confined to the neck. I would not describe an unsteady neck as a classic indicator of motor coordination skill deficit arising from alcohol consumption. Considering the totality of circumstances, what was lacking was evidence of alcohol consumption and therefore impairment from alcohol tied to Mr. Gale. While PC Ford did possess the subjective belief of impaired driving, that belief was not, on all the facts, objectively reasonable. It follows that Mr. Gale's s. 8 rights were breached because PC Ford lacked reasonable and probable grounds to make an arrest and make a breath demand under s. 254(3) of the Criminal Code.
Section 24(2) under the Charter
[11] Mr. Burke argues that I should exclude the breath test results because the breach is serious. Mr. Gale, he argues, was taken off the road in circumstances where PC Ford didn't even have a reasonable suspicion under s. 254(2) of the Criminal Code. In that regard he places weight on R. v. Au-Yeung 2010 ONSC 2292. While the Breath readings are accurate, and society may have an interest in not excluding the evidence, the seriousness of the Charter Breach tips the scales in favour of an exclusionary remedy.
[12] Mr. Juriansz argues that if PC Ford lacked Reasonable and Probable Grounds to arrest Mr. Gale, he wasn't off by much. The Charter Breach, he argues, isn't that serious because the Officer testified in a forthright manner, and there is no evidence of a training shortfall. Mr. Juriansz continues his argument by saying that R. v. Au-Yeung was wrongly decided, and is inconsistent with R. v. Grant 2009 SCC 32, rather I should follow MacIsaac J. in R. v. Ho 2014 ONSC 5034 or McKenzie J. in R. v. NG 2014 ONSC 4105.
Analysis
[13] I start with the obvious. Exclusion of evidence under s. 24(2) of the Charter is determined by the three prong test from R. v. Grant, namely: seriousness of the Charter-Infringing State Conduct; the impact of the Breach on the Charter Protected Interests of the Accused; and lastly, Society's Interest in the Adjudication of the Case on its Merits.
Seriousness of the Breach
[14] In this case the Charter breach is Mr. Gale's arrest by PC Ford who lacked reasonable and probable grounds to make the arrest. As the Court said in Grant, inadvertent or minor Charter breaches are at one end of the scale, while more willful, reckless police action in disregard for Charter Rights exist at the other end; see Grant at para. 74. While the nature of the detention is a factor on the second prong of the Grant test, it also sounds in the first limb when considering the seriousness of the police conduct; see R. v. MacMillan 2013 ONCA 109 at para. 50.
[15] In the case at Bar, I would find that PC Ford's arrest of Mr. Gale is somewhere in the middle of the two poles identified above in Grant. PC Ford was candid in his evidence, and I cannot find that he bore any deliberate intention to violate Mr. Gale's Charter Rights. I agree with the Crown that there is no evidence of bad training. That said, Mr. Gale was arrested without legal justification. This is much more than a technical, trivial breach. In this regard I will not speculate whether a continued detention of Mr. Gale would or would not have yielded Charter-compliant grounds for arrest, see R. v. MacMillan at paras. 68–70. What remains is that Mr. Gale was taken into custody, and held for over 2 hours without a legal basis. The Reasonable and Probable Grounds standard is an important threshold which determines for civilians the dividing line between liberty and custody. I can think of fewer precepts which are more important in a liberal democracy such as Canada. Getting that wrong is not, in my humble opinion, a matter of simply asking rhetorically 'so what'. The first limb favours exclusion of evidence.
Impact on Charter Protected Interests of the Accused
[16] Breath Samples taken in violation of s. 8 under the Charter are not significant intrusions on the body, and it is equally trite law that breath samples do not contain information which are within the core of biographical personal information. Those two comments favour admission of breath evidence. But, as Ducharme J. noted in Au-Yeung at paras. 61–62, that does not end the matter because a s. 8 violation in the taking of breath samples necessarily involves being confined in custody, in this case for some two hours, and taken to a police station which favours exclusion of the evidence.
[17] Mr. Juriansz forcefully asks that I find Au-Yeung to be bad law, and urges me to follow MacIsaac J.'s analysis under s. 24(2) from R. v. Ho. In R. v. Ho, MacIsaac J. did not stop at finding no s. 8 Breach, but went further and found that even if he were wrong about that, his s. 24(2) analysis would have caused him to admit the breath evidence. At paras. 17–20, His Honour gave reasons why he did not agree with Ducharme J.'s analysis on s. 24(2) from Au-Yeung and went so far as to outline what he saw as a flaw in Ducharme J.'s reasoning under the second limb of the Grant analysis. Were it left at that I would be left with a disagreement between Summary Conviction Appeal Courts. But the Court of Appeal's endorsement in R. v. Ho 2015 ONCA 559 overturns the conviction which MacIsaac J. registered. The Court of Appeal's endorsement is nothing more than that, and I do not glean any larger legal principle which the Court sought to pronounce. Endorsements are not meant to be pronouncements of broad overarching principles; see R. v. Timminco (2001), 54 O.R. (3d) 21 (C.A.). That said, had the Court of Appeal agreed with the Summary Conviction Appeal Court in Ho on its s. 24(2) analysis, it would not have ordered a new trial as it did. It would have agreed with MacIsaac J.'s finding that even if there was a s. 8 Breach the breath evidence was nonetheless admissible under s. 24(2) of the Charter. The only way of reading the Court of Appeal's endorsement in Ho is therefore that the Summary Conviction Appeal Court was wrong in its view of s. 24(2). For that reason I approach MacIsaac J.'s ruling in Ho with caution.
[18] As regards R. v. Ng, I do not read McKenzie J.'s ruling as being a rejection of Au-Yeung, but merely a finding that the Au-Yeung decision did not assist the Appellant on the facts of that particular case see R. v. Ng 2014 ONSC 4105 at par. 36.
[19] In the result, on this point of law, I find that Au-Yeung is not bad law as the Crown urges. I can do no better than to quote Durno J. who observed in R. v. Wilson 2014 ONSC 6463 that,
Au-Yeung is an informative judgment that thoroughly analyzes the issues raised in that Summary Conviction Appeal.
[20] Mr. Gale was arrested without reasonable and probable grounds, taken to a police station in handcuffs and held for over two hours. Within this limb of Grant I find that, after considering the various factors, on balance, it favours exclusion of the evidence but not by much.
Society's Interest in Adjudication on the Merits
[21] Society always has an interest in the adjudication of criminal trials on their merits. The question is by how much? In this case reliable evidence was obtained from Mr. Gale showing that his BAC was Over 80 at the time he was operating a motor vehicle. Impaired Driving is a very serious public danger, and in York Region the volume of Impaired Driving Charges is increasing, not decreasing. That said, there is an absence of aggravating factors in this case. There is no evidence of bad driving, personal misconduct by Mr. Gale, or high readings as the Criminal Code defines high readings under s. 255.1. On balance, this factor favours admission of the evidence.
Conclusion
[22] In the result, the first and second limbs of the s. 24(2) analysis favour an exclusionary remedy, but the third factor does not. Balancing the three factors from Grant is not a mathematical exercise see R. v. Dixon 2015 ONSC 4329. On balance, and after considerable reflection, I find that an exclusionary remedy is made out and the breath evidence will be excluded from Mr. Gale's trial. As a result he is acquitted of the charge.
Released: February 29, 2016
Signed: Justice David S. Rose