Court Information

Ontario Court of Justice

Date: 2016-04-07

Court File No.: Toronto 4817 998 15-75007492

Parties

Between:

Her Majesty the Queen

— And —

Jennifer Margaret Shaw

Judicial Officer and Counsel

Before: Justice Richard Blouin

Heard on: February 22, 2016

Reasons for Judgment released on: April 7, 2016

Counsel:

• Ms. Ellen Weis — counsel for the Crown
• Mr. G. Jonathan Lapid — counsel for the defendant Jennifer Margaret Shaw

BLOUIN J.:

Introduction

[1] Jennifer Shaw stands charged with Operating a Motor Vehicle Over 80 regarding events that transpired in the early morning hours of March 18, 2015.

[2] As a result of admissions made, only one witness was called by the Crown – the arresting officer PC Johnathon Blair. On consent, an in-car camera video was made Exhibit 2, and a Certificate of a Qualified Technician was made Exhibit 1. The defendant did not testify. I must say at the outset that the existence of Exhibit 2 allowed me to better objectively assess the interaction between Ms. Shaw and the police.

[3] Mr. Lapid admitted some of the Crown's case. He submitted that the defendant ought to be found not guilty because the breath reading evidence should be excluded. He alleges the police violated his client's Charter-protected rights under s. 8 in four distinct ways:

1. The officer did not have a reasonable suspicion (viewed objectively) to make a demand under s. 254(2);
2. No evidence was led by the Crown to establish the Approved Screening Device (ASD) employed was, in fact, an "approved instrument";
3. That the officer did not make a demand pursuant to 254(3) "as soon as practicable";
4. That the officer misunderstood the blood alcohol concentration value necessary to create an "F" reading on the ASD.

[4] For the reasons that follow, the only argument that I conclude has merit is the reasonable suspicion argument. The other three arguments can be dismissed very quickly. Of course a Charter violation does not mean the evidence is excluded. Section 24(2) must be analysed with reference to the guidance provided by R. v. Grant, 2009 SCC 32.

Evidence

PC Johnathon Blair

[5] Just before 2 am on March 18, 2015 Constable Blair, and his partner PC Spencer, came upon the defendant's vehicle as it turned on to St. Clair Avenue from a side street. Blair was not sure if the vehicle stopped at a stop sign since it entered St. Clair Avenue accelerating. He followed the defendant's Honda westbound on St. Clair to determine if the driver was using a cellphone. The Honda was travelling at "approximately 50 to 60 km/hour", in a 40 km zone.

[6] Blair activated his emergency lights and siren but the Honda did not slow down until 10 seconds had passed, whereupon it pulled over to the curb without incident. Blair testified that he executed the stop to prevent the vehicle from speeding and to investigate further regarding enforcement of the Highway Traffic Act. He asked for and received Ms. Shaw's driver's license. He observed a male in the passenger seat. He told her why he stopped her. He "immediately" noted that "voice appeared to be slurred". He then indicated he smelled what he believed to be an alcoholic beverage emanating from inside the vehicle, which led him to a reasonable suspicion that she may have alcohol in her body. He also noted her pupils to be very large. He asked if she had anything to drink. She said she did not. He then reiterated that because of the smell of alcohol in the vehicle, the slurred speech, and her eyes, he made a roadside screening demand. This was at 1:58 am.

[7] Since Blair was not trained to use "the newer" roadside screening devices, Spencer took over the test. Blair had no reason to believe that the device was not in working order, since he observed Spencer demonstrating its use by providing a self-test, which resulted in a reading of zero. To Blair, that meant it was in working order.

[8] At 2:05, Ms. Shaw failed, and she was arrested for Operating Motor Vehicle Over 80 by Blair. At 2:08 rights to counsel were read, and a caution was given to the defendant at 2:09. At 2:15, Ms. Shaw was taken to 41 Division, the police station with the closest Qualified Technician. Since no issue was taken with the procedure employed after this point in the investigation, the Certificate of a Qualified Technician was admitted on consent as Exhibit 1. The readings were 140 and 130.

Reasonable Suspicion

[9] When asked in examination-in-chief, Constable Blair gave evidence that he made an approved screening device demand after forming "a reasonable suspicion" that the defendant had alcohol in her body, based upon:

• slurred speech
• alcoholic beverage emanating from the vehicle
• large pupils

[10] In cross-examination, he reiterated those three factors, and then added a fourth factor – "the fashion in which she was operating the vehicle". Blair was unable to say which word, or words, was slurred, only that the defendant had "enunciation issues". He agreed that he did nothing to assess the origin of the smell of alcohol, such as a simple request to blow into his face.

[11] Fortuitously, the interaction between the defendant and police was captured by a dashboard video camera, and a microphone attached to both officers, and was made an exhibit at the end of the Crown's case. The value of that technology as an objective record of the police/citizen interaction was on display in this case. I viewed, and listened to the interaction, carefully, numerous times. Although Blair's position that the defendant did not respond immediately to his lights and siren (it took her about 10 seconds to stop), the video reveals a different reality. The defendant did not respond for 10 seconds to police emergency lights, but as soon as his siren is engaged, she stopped within 2 seconds.

[12] In addition, Blair's contention that the defendant slurred words is not borne out by the video. The defendant's language is crisp and responsive, and not, objectively, slurred. Even though Blair does not add the manner of driving as a factor supporting his reasonable suspicion until cross-examination, again viewed objectively, there is nothing about her driving that would assist in his conclusion.

[13] In my view, examining the evidence from the required objective lens, there is no slurred speech, there is no objectionable manner of driving, and there is no attempt made to determine the source of the smell of alcohol, when it would have been quite simple for the officer to do just that. What exists for the objective viewer is really only a smell of alcohol, which the officer cannot conclude comes from the defendant (and not the passenger). Even the large pupil observation is suspect. I can't see the defendant's eyes in the video, but I am not able to accept the accuracy of Blair's observations, because of the other observational concerns noted above.

[14] Let me be clear, there is no obligation to ensure the smell of alcohol emanates from the defendant's mouth. But in the context of no other objective factors, the smell of alcohol alone from a vehicle with another occupant falls short of the standard required to allow a detention and search. Accordingly, I conclude that, viewed objectively, the officer did not possess a "reasonable suspicion" as the law requires under s. 254(2) of the Criminal Code. Because the defendant was detained, and ultimately searched, her Charter-protected rights under s. 8 and s. 9 have been violated.

[15] It is hardly controversial to state that each assessment of reasonable suspicion depends upon the specific facts of each case. However, R. v. Marchionne 2013 ONSC 569 is a recent summary conviction appeal case which, in my view, is quite instructive of both reasonable suspicion and exclusion of evidence. The trial judge found a Charter violation, but admitted the breath readings. The defendant's appeal involved his analysis of s. 24(2). Like this case, the arresting officer detected the odour of alcohol emanating from Marchionne's vehicle. Like this case there was a passenger. Unlike this case, Marchionne admitted that he consumed alcohol that morning. And unlike this case, after forming reasonable suspicion, the officer could detect the odour of alcohol coming from the breath of the defendant after he exited his vehicle.

[16] In my view, the background indicia available to the officer in Marchionne were stronger, and more supportive of reasonable suspicion, than in this case. Nonetheless, s. 8 and s. 9 Charter violations were found by the trial judge. The issue at appeal involved s. 24(2). Did the trial judge err in law by failing to exclude the evidence?

[17] Of course, it is well established that a trial judge must assess and balance three distinct concepts (R. v. Grant) in determining if it has been established that the admission of evidence would bring the administration of justice into disrepute. They are:

1. the seriousness of the Charter-infringing state conduct;
2. the impact of the breach on the Charter-protected interests of the defendant;
3. society's interest in the adjudication of the case on its merits.

[18] Justice Healey in Marchionne deals with the first two concepts at paragraphs 15-17, and 23. In my view, those reasons are applicable to this case.

[15] The first point made by the appellant is that, although Crawford J. found that the seriousness of the police conduct militated "slightly" in favour of exclusion of the approved instrument readings on the first branch of the test, his analysis minimizes the gravity of the conduct in relation to the appellant's constitutional rights, and therefore affected the balancing that had to be undertaken. I agree. Section 254(2) gains its constitutional validity by stipulating the minimum threshold that police officers must meet before being permitted to interfere with a person's liberty. A demand for a breath sample made under that section, prior to the officer having the basis to form the suspicion on reasonable grounds that a driver has alcohol in his or her body, is an unlawful demand: R. v. Woods, 2005 SCC 42. The comments of LeGrandeur, Prov. Ct. J. in R. v. Perry, 2010 ABPC 350, at paras. 46 and 48 underscore why such a breach should be considered at the serious end of the scale:

A roadside sample of breath that is taken with valid suspicion and leads to a "fail" result will, more than likely, lead to a conviction for being over .08. It is therefore a step of fundamental importance in the drinking and driving legislative scheme, and is the first available step in the process whereby the accused is required to provide potential evidence against himself. Therefore, the failure of the police officer to meet the evidentiary and constitutional standard necessary to demand a roadside breath sample is a significant breach given the role that sample plays in the legislative scheme and the potential conviction of the accused.

Therefore, both reasonable suspicion of alcohol in the body and reasonable and probable grounds for belief of impairment or being over .08 are fundamental to the operation of the legislative scheme. The proof of either, or both, is also fundamental to justifying the interference with an individual's rights. The failure to meet the requisites for either of these demands is a serious breach, which goes to the root of the right of police authorities to interfere with an individual's liberty. Parliament has specified when and with what evidential base such demand may be made, and failure to meet those standards, which are both statutory and constitutional, are serious breaches.

[16] Justice Ducharme's comments in R. v. Au-Yeung, 2010 ONSC 2292, at paras. 61 and 62, also explain the seriousness of the contravention:

But that should not end the matter, because the demands placed on a driver to facilitate these tests are often not minimally intrusive. In this case, the appellant was arrested, handcuffed, placed in the rear of the police car and taken to a police station, a sixteen minute trip, and, once at the station, he was kept in police custody for another hour and fifty minutes. Thus, while the trial judge was correct in saying that the treatment of the appellant was not "oppressive" that is not the test. Certainly, such an interference with the appellant's personal liberty cannot be dismissed as minor. Thus, where the police lack the requisite grounds for the s. 254(3) demand, these aspects of the appellant's treatment constitute a significant violation of section 9.

While the public are supportive of the legislative scheme in place to combat drinking and driving, this support cannot be presumed to extend to police actions that involve the detention and arrest of drivers without the requisite statutory and constitutional grounds. To condone or excuse the behaviour in this case would send a message to the public that, despite their Charter rights under sections 8 and 9 of the Charter, the police can ignore these and detain and arrest any driver. Thus, despite the minimal intrusiveness of the breath-testing procedures themselves, the second branch of Grant also weighs in favour of exclusion of the evidence.

[17] Unlawful searches, into which category an unlawful demand made under s. 254(2) falls, have consistently been held by the courts to constitute an inherently serious violation of s. 8: R. v. Bartle, at para. 50; R. v. Simmons, at para. 47; R. v. Haas, at para. 40.

[23] Section 8 of the Charter guarantees a broad right to be secure from unreasonable search and seizure, which protections go at least as far as protecting an individual's reasonable expectations of privacy. In this case, in the face of an unlawful detention, the appellant underwent not only one, but two, procedures of some level of intrusion, being required to give a breath sample both for the purposes of the ASD and the intoxilyzer. While in Grant it was observed that the state conduct involved in obtaining breath samples is "relatively non-intrusive" in relation to the appellant's privacy, bodily integrity, and human dignity (at para. 111), it must be remembered that this was not the only Charter-protected right that was affected by Constable Loos' course of action that night. From the moment that she formed her deficient grounds to make the ASD demand, the appellant's detention was arbitrary and therefore not authorized by law, in clear violation of s. 9. This breach is not dealt with in the Reasons of the trial judge in his consideration of the impact on the appellant's interests. The resulting interference with the appellant's liberty interests that flowed cannot be considered minimally intrusive. He was arrested, searched, transported to a police station, and then placed in a jail cell until processed. The entire experience lasted in excess of two hours. Accordingly, the impact on the appellant's s. 9 rights was significant and cannot properly be assessed as minimally intrusive. In these circumstances, the deprivation of liberty and the arbitrary detention and imprisonment, while not falling within the egregious end of the spectrum, certainly represent a significant intrusion on the appellant's Charter-protected interests.

[19] As a result, an unlawful demand which puts into motion a process where the defendant is detained at a police station for hours, and required to provide potentially self-incriminating evidence is both serious and impactful upon that citizen's rights.

[20] In my view, both factors militate strongly in this case for exclusion. When factoring in adjudication on the merits, which always allows for breath readings to be accepted as reliable evidence, I conclude the evidence ought to be excluded, because the defendant has established that admission would bring the administration of justice into disrepute.

Other Submissions

[21] The defendant's second and fourth arguments regarding no evidence that the machine used by PC Spencer was an "approved screening device", and that the officer had the wrong number attributable to an "F" reading, can be met by reference to one paragraph in the Ontario Court of Appeal case of R. v. Gundy, 2008 ONCA 284, at paragraph 50:

…In the absence of credible evidence to the contrary, the officer's testimony that he or she made a demand with an approved screening device is sufficient evidence that the officer had the requisite reasonable belief. The officer is not required to give the particular model number or otherwise identify the device. Obvious errors such as incomplete reference to the model number do not undermine the officer's testimony that the device was an approved screening device.

[22] Here, Blair testified that he did not have training on the "newer" devices, so PC Spencer administered the test. Blair believed Spencer was using an approved device that was in proper working order since he observed him conduct a self-test which yielded a reading of zero milligrams of alcohol.

[23] Blair conceded that he forgot to read the formal 254(3) demand until they were en route to 41 Division (which was about 13 minutes after the arrest). However, when one views Exhibit 2, it is clear that a demand was made as soon as practicable. It wasn't a formal demand on scene, but at 2:07 Ms. Shaw was told that she must provide samples of her breath into a machine at the station, and that they were taking her there for that purpose. No more is required.

Conclusion

[24] The breath reading evidence shall be excluded pursuant to s. 24(2) and the defendant will be found not guilty.

Released: April 7, 2016

Signed: "Justice Blouin"