Court Information

Ontario Court of Justice

Date: 2016-05-10

Court File No.: Ottawa 14-0161

Parties

Between:

Her Majesty the Queen

— AND —

Stephan Muller

Judicial Officer and Counsel

Before: Justice Doody

Heard on: April 14, 2016

Reasons for Judgment released on: May 10, 2016

Counsel:

• John Semenoff, counsel for the Crown
• Michael Smith, counsel for the defendant Stephan Muller

Judgment

Doody J.:

Introduction

[1] The defendant Stephan Muller is charged with driving with over 80 milligrams of alcohol in 100 millilitres of his blood. The only issues raised by Mr. Smith, Mr. Muller's counsel, are based on alleged breaches of sections 8 and 9 of the Charter of Rights and Freedoms. He submits that the officer who stopped Mr. Muller and tested his breath by an approved screening device (ASD) at the roadside did not have a reasonable suspicion that he had alcohol in his body, as required by s. 254(2) of the Criminal Code. Consequently, he submits, the ASD test was a warrantless search not authorized by law and a breach of s. 8.

[2] Mr. Smith also submits that the delay in advising Mr. Muller that he was under arrest after he failed the ASD test constituted a breach of s. 9 of the Charter.

[3] Mr. Smith initially had another argument – that the demand by the arresting officer under s. 254(3) of the Criminal Code that Mr. Muller provide a sample of his breath to be tested by an intoxilyzer was not made "as soon as practicable", as required by that subsection, so that the result of the intoxilyzer test was a warrantless search not authorized by law. During the course of submissions he abandoned that argument, conceding that it had been established by a number of cases, including R. v. Guenter [2011] O.J. No. 2233, that where the breath technician makes a second demand as soon as practicable after he has obtained reasonable and probable grounds from the arresting officer, the statutory requirements are met even if an earlier demand was not made as soon as practicable. I should also note that although the Notice of Application filed by Mr. Smith prior to trial included a submission that Mr. Muller's s. 10(b) right to counsel had been breached, but that was abandoned at trial.

Facts

[4] On November 1, 2014, Cst. David Abuya of the OPP set up a RIDE program on the on-ramp to westbound Hwy 417 at Innes Road in Ottawa. He had with him an ASD. At 12:01 p.m. (i.e. one minute after noon) he flagged down Mr. Muller, who was alone in his vehicle. He was not speeding. There was nothing abnormal in his driving.

[5] Cst. Abuya stood at the front seat passenger window to speak with Mr. Muller, who was seated in the driver's seat. As soon as the window was lowered, he smelled alcohol. Cst. Abuya testified that there are different kinds of alcohol smell, and what he detected was the odour given off by the body of a person who had been drinking rather than the odour of alcohol from a person's breath. He told Mr. Muller that he could smell alcohol and asked him when he had last had a drink. Mr. Muller responded that he had not drunk any alcohol. Cst. Abuya then asked him to explain the smell of alcohol from inside the car and whether he had recently dropped off passengers who had been drinking. Mr. Muller responded that he had dropped off two passengers who had been drinking.

[6] Cst. Abuya testified that he did not believe this response – that it was too vague, and that Mr. Muller's "jumping on" his suggestion seemed too convenient. He testified that the time of day contributed to his disbelief – that the smell of alcohol was more typical in the evening. Cst. Abuya then asked Mr. Muller to pull his vehicle onto the shoulder, in front of his cruiser, so that he could administer an ASD test. Cst. Abuya testified that the only basis for his decision to administer the AST test at that time was the smell of alcohol which was, as his notes indicated, "from inside the car".

[7] Mr. Muller did not slur his speech. His face was not flushed. He was very cooperative. His clothing was not disordered. Mr. Muller left his vehicle after pulling onto the shoulder and walked over to the cruiser. He was not unsteady on his feet.

[8] At 12:07 p.m. Cst. Abuya made a formal demand, in proper form, that Mr. Muller provide a sample of his breath for the ASD test. After that demand was made, he asked Mr. Muller when he had last drunk alcohol. Mr. Muller told him that he had wine at 1:00 a.m. that day – i.e. the night before. Cst. Abuya then noted that Mr. Muller had watery eyes and that there was an odour of alcohol emanating from his breath. He testified that he had not detected alcohol emanating from Mr. Muller's breath, or watery eyes, until 12:10 p.m., when Mr. Muller was standing beside the passenger window of the cruiser in which Cst. Abuya was in the driver's seat.

[9] At 12:11 p.m. Mr. Muller blew into the ASD. The result was a "fail", indicating that Mr. Muller's blood alcohol level was 100 mg per 100 ml of blood or higher.

[10] At that point, Cst. Abuya had reasonable and probable grounds to believe that Mr. Muller had been operating a motor vehicle with more than 80 mg of alcohol in 100 ml of blood, and could have formally arrested Mr. Muller for that offence. Instead, he told Mr. Muller that he was under "investigative detention" for "operating a motor vehicle with over 80 mg of alcohol in 100 ml of blood". He testified that he was not sure why he did that. He said that, looking back, he had enough to arrest him but simply decided to "start with" investigative detention.

[11] At 12:13 p.m. Cst. Abuya requested a tow truck to secure the vehicle. Mr. Muller's dog was in the vehicle. Ultimately, the dog remained in the vehicle while it was towed to the police detachment. This caused some delay while arrangements were made to have the dog picked up by a friend from the station, and to await the tow truck (which did not arrive until 12:32 p.m.) so that the dog did not have to remain in the vehicle alone at the side of the road.

[12] At 12:22 p.m. Mr. Muller was in the rear seat of the police cruiser. At 12:24 he was formally arrested for driving with more than 80 mg of alcohol in 100 ml of blood.

[13] Between 1:12 p.m. and 1:19 p.m., Cst. Abuya met with Cst. Vigent, the breathalyzer technician, and told him the grounds upon which he had arrested Mr. Muller. The most important reason was that he had failed the ASD test.

[14] At 1:19 p.m. Cst. Vigent made the formal intoxilyzer demand to Mr. Muller. He had reasonable and probable grounds to do so, because of what he had been told by Cst. Abuya.

[15] The first intoxilyzer test was administered at 1:31 p.m. It measured 111 mg of alcohol in 100 ml of blood. The second test was administered at 1:54 p.m. It measured 95 mg of alcohol in 100 ml of blood.

Section 8 Analysis: Whether Cst. Abuya had reasonable grounds to suspect that Mr. Muller had alcohol in his body

[16] The issue is whether Cst. Abuya had "reasonable grounds to suspect that [Mr. Muller had] alcohol … in his body" at the time he made the ASD demand, as required by s. 254(2).

[17] Mr. Semenoff, Crown counsel, submitted that Cst. Abuya had two bases for such grounds – the odour of alcohol emanating from inside the car, and his lack of belief in Mr. Muller's positive response to Cst. Abuya's question as to whether Mr. Muller had just dropped off a passenger.

[18] In my view, the latter point cannot be an objective basis for the necessary suspicion. That would result in the officer bootstrapping his suspicion on the basis of evidence he created in a way which could only have one result. If Mr. Muller had denied dropping off a passenger, the inference that the odour of alcohol emanating from the car came from Mr. Muller would be stronger. If Cst. Abuya's disbelief in his statement that he had done so could be used as the basis for the officer's reasonable suspicion that there was alcohol in Mr. Muller's body, the result would be that the asking of the question guaranteed the creation of the objective basis – no matter Mr. Muller's response, the officer's grounds would be strengthened. In the absence of objective grounds for his disbelief, that cannot be so.

[19] I conclude that the only basis for the ASD demand at the time it was made was the odour of alcohol from Mr. Muller's vehicle (and not from his breath). Furthermore, that odour was of the type emanating from one's body rather than one's breath. The issue is whether that (when considered, as part of the total circumstances, with Mr. Mullers' denial that he had consumed alcohol that day and his affirmative response to Cst. Abuya's question whether he had dropped passengers off) is enough to establish reasonable grounds for the required suspicion.

[20] In R. v. Rasheed, 2009 ONCJ 41, [2009] O.J. No. 631, the defendant told the arresting officer that he had not been drinking. His eyes were extremely glassy and bloodshot, he spoke in a slow manner with a bit of an accent, and he had a slight slur in his speech. His female passenger told the officer that she had consumed alcohol. The officer smelled alcohol inside the car, but acknowledged that it could have emanated from the passenger rather than the driver. There was no evidence of inappropriate driving.

[21] The trial judge held that there were no "objectively justified grounds on which to base a reasonable suspicion that Mr. Rasheed had alcohol in his body", so that he did not have authority to make the s. 254(2) demand. He held that the evidence of glassy and bloodshot eyes, slow speaking and slurred speech, odour of alcohol coming from the car, and the statement from the defendant's passenger that they had come from a restaurant where she had consumed alcohol, were "not unequivocal indicators of the consumption of alcohol." He wrote:

In these circumstances, the fact that the passenger said that they were coming from a restaurant where she had consumed alcohol does not allow for the inference that because the passenger consumed alcohol at the restaurant so must have Mr. Rasheed. And even if it could be said to raise a suspicion based on the assumption that persons usually mutually imbibe over meals, this set of circumstances would not permit for a conclusive suspicion of this without further objective factors to support it. [emphasis added]

[22] In R. v. Marchionne, 2013 ONSC 569, Healey J. allowed a summary conviction appeal and excluded the results of the ASD test under s. 24(2). The officer had detected an odour of alcohol from inside the vehicle (which carried the defendant and one passenger) and noted that the defendant had red-rimmed eyes. The trial judge had held that these were inadequate grounds for a s. 254(2) demand but did not exclude the evidence. The Summary Conviction Appeal Court dealt only with the s. 24(2) issue. The issue of whether there were adequate grounds for the s. 254(2) demand was only dealt with in the Ontario Court of Justice.

[23] The Court of Appeal has twice held that an odour of alcohol on a driver's breath is sufficient to ground a s. 254(2) demand. In R. v. Lindsay, [1999] O.J. No. 870, 134 C.C.C. (3d) 159, the Court noted that the fact that there may be an explanation for the smell of alcohol does not take away from the fact that there exists a reasonable suspicion within the meaning of the section. In R. v. Carson, [2009] O.J. No. 660, 2009 ONCA 157, the Court affirmed the correctness of that decision.

[24] Mr. Smith submits that these decisions can be distinguished because Cst. Abuya noted only an odour of alcohol from the vehicle and not from the defendant's breath. In my view, however, that submission fails to appreciate the distinction between a reasonable suspicion of a certain fact and reasonable and probable grounds to believe that fact. Only the former is required.

[25] As Binnie J. held in R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, a "reasonable suspicion" is something more than a mere suspicion – an expectation that a person is possibly engaged in some criminal activity – and something less than a belief based upon reasonable and probable grounds. In order for a court to find that a reasonable suspicion is present, the officer's suspicion must be "supported by factual elements which can be adduced in evidence and permit an independent judicial assessment". What distinguishes "reasonable suspicion" from the higher standard of "reasonable and probable grounds" is the degree of probability demonstrating that a person is involved in criminal activity.

[26] The Supreme Court shed more light on the meaning of "reasonable suspicion" in R. v. Chehil, [2013] 3 S.C.R. 220, 2013 SCC 49, a case dealing with a canine smell search for drugs at an airport, which requires reasonable suspicion. Karatkasanis J., writing for the Court, held at paragraph 32:

Much as the seven stars that form the Big Dipper have also been interpreted as a bear, a saucepan, and a plough, 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.

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. As Doherty J.A. found in R. v. Golub (1997), 34 O.R. (3d) 743 (C.A.), at p. 751, "[t]he officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable."

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.

[27] If a person's breath smells of alcohol, there are reasonable and probable grounds to believe that there is alcohol in his body. If a confined space in which that person is located, particularly if he is alone, smells of alcohol, it is reasonable to suspect that there is alcohol in his body. It may not be reasonable to conclude that there is probably alcohol in his body, but that is not the test. As the Supreme Court has said, the test is possibility not probability.

[28] The distinction is clearly made in R. v. Mason, [2013] O.J. No. 2822. Justice Duncan wrote:

8 In short, suspicion is a belief in a mere possibility of criminal activity; a reasonable suspicion is one that has some objective facts to support it, as opposed to some purely subjective hunch or gut feeling. In Kang-Brown Binnie J went on to hold that the suspicion in that case was not reasonable or objectively supported because it was substantially if not solely based on the fact that the defendant made repeated eye contact with the officer. The Court pointed out that the exact opposite -- avoiding eye contact -- had also been used to support suspicion in other cases. Accordingly, making eye contact was not logically probative or indicative of anything.

9 By contrast, the smell of alcohol is indicative of the presence -- and therefore possible consumption -and therefore presence in the body -- of alcohol. The odour of alcohol on the driver's breath is sufficient to support the required suspicion: R. v. Lindsay (1999), 134 C.C.C. (3d) 159 (Ont C.A.). The odour of alcohol coming from within a vehicle with the driver being the sole occupant is also sufficient: R. v. Pozniak infra; R. v.Kokkinakis [1999] O.J. No. 1326. The next question is whether the smell of alcohol coming from a vehicle with more than one occupant is a sufficient basis for reasonable suspicion in relation to the driver. Much of the able argument of defence counsel in this case was directed to this point and there are a number of decisions that support his submission. To mention only the Ontario cases: R. v. Marchione 2013 ONSC 569; R. v. Rasheed 2009 ONCJ 4; R. v. White 2008 ONCJ 437; R. v. Pozniak [2008] O.J. No. 687; R. v. Rodrigues [2005] O.J. No. 1551. There are undoubtedly others. None of these decisions is binding upon me and, with respect, I take a different view.

10 First, it seems to me that the reasoning, either express or implied in these cases is encapsulated in this passage from Rodrigues para 13:

The officer, in order to objectively form a reasonable suspicion, would be obliged to eliminate the possibility that the odour came from the passenger, or to determine that the odour came from both the passenger and the accused before he could reasonably suspect that the accused had alcohol in his body.

11 But the Court of Appeal in R. v. Bush 2010 ONCA 554, [2010] O.J. No. 3453 made it clear that this reasoning is not appropriate in the context of assessing reasonable and probable grounds for an Intoxilyzer demand. There the summary conviction appeal court judge, [2008] O.J. No. 5947, reversed the trial judge's finding, [2006] O.J. No. 5828, that grounds existed by reasoning that many of the indicia relied upon by the trial judge were also consistent with the effects of the accident in which the defendant had been involved. Therefore, the lower Court reasoned, those indicia should have been ignored in the assessment of grounds because there could be other explanations.(para 50) On appeal by the Crown to the Court of Appeal, the conviction was restored, the Court holding:

... that there might be another explanation for some of the factors the officer properly took into account in forming his opinion of impairment to drive did not eliminate the indicia or render them unreliable.

12 The Bush decision must, a fortiori apply to the lower standard of reasonable suspicion. Accordingly, it is conclusive authority against the reasoning applied in the cases cited above, such as Rodrigues and against the submission urged by counsel for the defendant in this case. That a smell of alcohol coming from a confined space that includes the driver could be attributable to the passenger (or spilled alcohol, or an open bottle) does not deprive it of its ability to support a suspicion related to the driver. If it could be the driver or it could be the passenger, in my view there is a reasonable suspicion in respect of each of them.

13 To require the elimination of other possibilities in my view is to misconstrue the meaning of "suspicion" and to effectively equate it with a standard of "reasonable grounds to believe" -- or higher. In fact it approaches the old rule in Hodges case, applicable to proof beyond a reasonable doubt on circumstantial evidence -- consistent with guilt and inconsistent with any other rational alternative conclusion. [emphasis in original, footnotes omitted]

[29] I agree with Justice Duncan's analysis. It is consistent with the Supreme Court's decision in Chehil, released 5 months later. The requirement for a "conclusive suspicion" and "unequivocal indicators" of the presence of alcohol, as set out in Rasheed, is inconsistent with both Chehil and Kang-Brown. The requirement of s. 254(2) is for a "reasonable suspicion", not a "conclusive suspicion". I respectfully decline to follow Rasheed and the trial decision in Marchionne. Cst. Abuya was not required to eliminate other possibilities once he detected the odour of alcohol from Mr. Muller's car. His suspicion that there was alcohol in Mr. Muller's body was reasonable.

[30] Mr. Muller's denial that he had consumed alcohol that day, and affirmative response to Cst. Abuya's query as to whether he had dropped off passengers, does not change the situation. As the Supreme Court held in Chehil, Cst. Abuya was not required to undertake further investigation to rule out potentially innocent explanations.

[31] Since Cst. Abuya had a reasonable suspicion that there was alcohol in Mr. Muller's body, there is no breach of s. 8. The positive result of the ASD test provided the breath technician with the necessary reasonable and probable grounds to make the s. 254(3) demand for samples of breath to be tested in the intoxilyzer. The results of the ASD test are admissible. It is not necessary for me to consider s. 24(2).

Section 9 Analysis – Whether Cst. Abuya's delay in advising Mr. Muller that he was under arrest breached his Charter rights

[32] Cst. Abuya had grounds to arrest Mr. Muller at 12:11 p.m., when he failed the ASD test. He did not advise him that he was under arrest until 12:24 p.m. Instead, he told him that he was under "investigative detention". Had Cst. Abuya told Mr. Muller at 12:11 p.m. that he was under arrest, there would have been no s. 9 breach. Mr. Smith submits that between 12:11 p.m. and 12:24 p.m. Mr. Muller was arbitrarily detained, and that as a result either or both of the ASD test and the intoxilyzer test should be excluded under s. 24(2).

[33] Mr. Muller's liberty would have been interfered with no more if he had been told he was under arrest than it was when he was told he was under detention. He was being detained after the ASD test because he had failed the test. He was under de facto arrest, even though he had been told that he was under detention.

[34] A de facto arrest in circumstances where the police officer has reasonable and probable grounds that the person being detained has committed a criminal offence is lawful even if the person is being told he is being detained and not that he is being arrested. Such an arrest cannot be an arbitrary detention for the purposes of s. 9. (R. v. Latimer, [1997] 1 S.C.R. 217 at paras. 22-25)

[35] Cst. Abuya had reasonable and probable grounds to arrest Mr. Muller. He was not arbitrarily detained.

Conclusion

[36] There being no basis to exclude evidence under s. 24(2), and all elements of the offence having been proven beyond a reasonable doubt, the defendant is found guilty.

Released: May 10, 2016

Signed: "Justice Doody"