Court Information

Ontario Court of Justice

Her Majesty the Queen v. Bryon Moore

Reasons & Judgment

Before the Honourable Mr. Justice D. Harris

Date: April 7, 2016 Location: Burlington, Ontario Courtroom 12

Appearances

Ms. L. Bandini – Counsel for the Crown

N. Schachter, Esq. – Counsel for the Accused

Table of Contents

• Reasons for Judgment
• Judgment
• Ruling

Reasons for Judgment

Thursday, April 7, 2016

HARRIS, J. (Orally):

Bryon Moore is charged with operating a motor vehicle in the Town of Oakville on June 19, 2015, when:

i) his ability to operate a motor vehicle was impaired by alcohol; and

ii) his blood/alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of blood.

Crown Counsel elected to proceed summarily. Mr. Moore pled not guilty and a trial was held.

Mr. Moore applied for an Order that all evidence of the results of any Intoxilyzer tests should be excluded pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms.

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.

Evidence

Police Constables Nicholls, Proulx, Willis and Bryant and Staff Sergeant Dunham testified for the Crown. No evidence was led by the Defence.

There is no issue that Mr. Moore was operating his motor vehicle in Oakville on June 19, 2015 or that the two Intoxilyzer tests showed results of 140 milligrams of alcohol in 100 millilitres of his blood.

Issues Before the Court

The issues before me are:

i) whether the evidence referred to above should be excluded pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms, and

ii) whether the Crown has proven beyond a reasonable doubt that Mr. Moore's ability to operate a motor vehicle was impaired by alcohol.

More particularly, with respect to the Charter application, Counsel for Mr. Moore argued that the evidence should be excluded on the basis that the Police did not have reasonable and probable grounds necessary to make the breath demand, thereby violating Mr. Moore's right to be secure against unreasonable search and seizure as guaranteed by s. 8 of the Charter, and his right not to be arbitrarily detained as guaranteed by s. 9.

Originally it was further argued that the Police violated Mr. Moore's rights by video-monitoring and recording his activities in his holding cell including his use of the toilet. This argument was, however, abandoned during the trial and I need not address it.

Analysis of Reasonable and Probable Grounds

I will deal with the reasonable and probable grounds issue first.

I am satisfied that Constable Nicholls subjectively believed on reasonable and probable grounds that Mr. Moore had been operating his motor vehicle within the previous three hours while his ability to operate that motor vehicle was impaired by alcohol.

I am not, however, satisfied that his belief was objectively reasonable.

Legal Test for Reasonable and Probable Grounds

In reaching those conclusions I note the following. The legal test for reasonable and probable grounds is not a high one. It is more than a mere suspicion and less onerous than a prima facie standard. It is a fact-based analysis of the totality of the circumstances the arresting officer had in mind.

The officer is entitled to disbelieve and disregard any evidence disbelieved. However, the officer must balance any circumstance detracting from the conclusion of impairment to those suggestive of impairment and the totality of circumstances must be sufficient that a reasonable person in the position of the arresting officer would be able to conclude that reasonable and probable grounds existed. The grounds need only amount to evidence of slight impairment of alcohol as opposed to gross impairment.

There is no minimum time for the investigation, nor any mandatory minimum number of circumstances in order to amount to an objective review.

I will note that this summary of the law regarding reasonable and probable grounds can be found in R. v. Outri, [2015] O.J. No. 391 (OCJ) per Wakefield, J., at paras 13 & 14. I also have referred to R. v. Censoni, [2011] O.J. No. 5189 (SCJ) per Hill, J., at paras 23–43.

Facts Regarding the Stop

In this case, Constable Nicholls testified that he was on duty on June 19, 2015, operating a R.I.D.E. program in Oakville. He stopped a vehicle that was driven by Mr. Moore. He had a conversation with Mr. Moore. He advised him of the nature of the R.I.D.E. program and why he was being stopped. He noted that Mr. Moore had red, glossy eyes. He was asked where he was coming from. Mr. Moore indicated he was coming from work and that he was tired.

Constable Nicholls noted the odour of alcohol coming from the breath of Mr. Moore. He asked whether Mr. Moore had consumed any alcohol and was told no.

Constable Nicholls was concerned that Mr. Moore had consumed alcohol and asked him to pull over because he had a reasonable suspicion and intended to demand that a sample of breath be provided into an approved screening device.

There is an indication that before telling him to pull over he asked for some identification and Mr. Moore fumbled in his attempts to comply with this. In the end he failed to produce identification. Constable Nicholls directed him to pull ahead and over to the side so that he could get out of the way of any other traffic.

He then asked Mr. Moore to turn off the vehicle and come to the side of the road so that he could read a demand for an approved screening device. He noted at this time that Mr. Moore walked fine. He noted, however, that Mr. Moore started swaying as he stood there.

He asked Mr. Moore for his name. Mr. Moore replied that he did not have to provide that. Constable Nicholls informed him that he was wrong and that he could be arrested if he did not identify himself. He then identified himself as Bryon Moore.

Constable Nicholls read the demand that a sample of breath be provided into an approved screening device but based on the observations of slight swaying during the reading of the demand he decided that he now had reasonable and probable grounds to believe that Mr. Moore's ability to operate a motor vehicle was impaired by alcohol. He based this on the odour of alcohol, the red, glossy eyes, the fumbling and now the swaying.

Cross-Examination of Constable Nicholls

During cross-examination, Constable Nicholls elaborated that while Mr. Moore fumbled with the cards and cash that he was taking from his pockets he did not believe that Mr. Moore dropped anything. He indicated that it appeared to him that Mr. Moore was not recognizing exactly what he was holding in his hands. He agreed, however, that all of this took place in what he described as a very short time, which I interpreted to mean a matter of seconds.

He confirmed that when he told Mr. Moore to move the motor vehicle over to the side of the road he did not think that Mr. Moore's ability to operate the motor vehicle was impaired yet. He indicated that Mr. Moore had been and continued to be cooperative throughout.

He noted that whenever he was walking either behind or beside Mr. Moore there were no balance issues. It was after they stopped and were standing beside the cruiser that he noted some unsteadiness. He described it as weight being shifted back and forth or from leg to leg, unable to square-up. He indicated that Mr. Moore never moved his feet, he never fell or stumbled. He acknowledged that nervous people might not stay still. He said, however, that the sway was enough, that his belief progressed from a suspicion of alcohol in the body to reasonable and probable grounds to believe that Mr. Moore's ability to operate a motor vehicle was impaired by alcohol.

Finally, during cross-examination he indicated that Mr. Moore's initial refusal to identify himself occurred before the approved screening device had been made. He would have observed the swaying during this conversation so there had been some swaying noted prior to commencing the approved screening device demand.

Evidence of Constable Proulx

Constable Proulx was also present for much of this. He was standing right next to Constable Nicholls at these times which included Mr. Moore's initial refusal to identify himself. Constable Proulx did not see any balance issues or swaying. On the other hand, he testified that Mr. Moore was definitely slurring his words while speaking at that time. Constable Nicholls, on the other hand, did not detect any slurred speech.

Court's Findings on Reasonable and Probable Grounds

So in summary, Constable Nicholls had noted the odour of alcohol, red, glossy eyes and fumbling with documents and was not satisfied on the basis of those observations that he had reasonable and probable grounds to believe that Mr. Moore's ability to operate a motor vehicle was impaired. As a result he had Mr. Moore drive his motor vehicle ahead and off to the side and had him get out of his motor vehicle so that he could read an approved screening device demand based on his reasonable suspicion that Mr. Moore had been drinking.

He did read that demand. It was only during the reading that he noticed Mr. Moore sway to such a degree that Constable Nicholls then believed that Mr. Moore's ability to operate a motor vehicle was impaired by alcohol.

My problem with this is twofold. First, he noted the swaying when Mr. Moore refused to identify himself and that had occurred before he read the approved screening device demand suggesting that this initial swaying was not enough to tip the balance towards reasonable and probable grounds.

The second problem is that the second Police officer, Constable Proulx, watching the same actions did not see it to be swaying or a balance issue. In light of that I am not satisfied that the swaying as perceived by Constable Nicholls could objectively justify the progression of Constable Nicholls' belief from reasonable suspicion of alcohol in the body to reasonable and probable grounds to believe that Mr. Moore's ability was impaired.

I will note here that this may well be one of those cases supporting an argument in favour of body cameras on Police officers. An audio/video recording would certainly make it possible for me to determine whether Constable Nicholls' perceptions or those of Constable Proulx were the accurate ones.

On the evidence before me, however, I am not satisfied that the demand made was reasonable. I must therefore go on to determine whether or not to exclude the breath results pursuant to s. 24(2) of the Charter.

Section 24(2) Analysis

The Test

The test with regard to that section is set out by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32. The Supreme Court directs me to assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to:

i) the seriousness of the Charter infringing conduct;

ii) the impact of the breach on the Charter protected interests of the accused; and

iii) society's interest in the adjudication of the case on its merits.

I must balance the assessment of 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.

Factor 1: Seriousness of the Charter Breach

With respect to the first factor, the Charter breach here is serious, albeit not as serious as many others.

An approved screening device demand is somewhat intrusive. It requires that the person be detained long enough to provide a sample of his breath into the approved screening device.

An Intoxilyzer demand is significantly more intrusive. It leads to the individual being arrested, handcuffed and driven to the police station where he will be detained for upwards of an hour or more, while the breath testing process is completed there. It is therefore important that Police officers make the appropriate demands in any given case.

Constable Nicholls knew that. He knew the difference between the two demands. In addition, he had an approved screening device readily available to him and could have conducted a test using that device in very short order. I have found that he made the more intrusive demand without sufficient justification.

Accordingly, I find that the degree of seriousness of the Charter infringing conduct here favours exclusion of the evidence.

Factor 2: Impact on the Accused's Charter Protected Interests

With respect to the second factor, the ensuing breath tests were minimally intrusive both in terms of what took place and the evidence obtained. In reaching that conclusion I have taken note of the obiter comments in R. v. Grant, at paragraph 111:

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 of 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.

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.

However, I also note as I mentioned earlier that the degree of detention that resulted from the demand that was ultimately made was significantly more intrusive than that which would have followed a simple approved screening device demand.

Factor 3: Society's Interest in Adjudication on the Merits

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.

I must also consider the fact that the evidence which Mr. Moore seeks to have excluded is reliable. I quote from a decision of Hill, J., in R. v. Bryce, [2009] O.J. No. 3640, at paras 64 & 65:

Subject to other evidence in any given case breath samples and their testing by ASD's and Intoxilyzers are generally considered reliable evidence.

I note further that the Intoxilyzer test results are certainly presumptively reliable by virtue of the Criminal Code provisions.

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

Balancing the Factors

So, as is often the case in any s. 24(2) analysis, the final decision is a difficult one.

A good argument can certainly be made for inclusion of the evidence. I note, however, the comments of Duncan, J., at paragraph 34 in R. v. Beattie, [2009] O.J. No. 3646 (OCJ):

Yet the focus must be long term on the big picture. Viewed in that way the balance shifts towards favouring exclusion in order to restore the intent of public interest/individual liberties balance and underscore the limits of statutory powers that are permitted to encroach upon Charter rights.

I conclude after much anguished consideration that the long term interests of the administration of justice are better served by exclusion in this case.

In R. v. Mehta, [2012] O.J. No. 5587, at paragraph 21, Lipson, J., wrote:

Yet it is also true that the overriding purpose of s. 24(2) is to maintain the good repute of the administration of justice by both upholding the Rule of Law and Charter rights. The focus is both on the long term and the prospective, not on the immediate reaction to admission or exclusion in a particular case. The purpose of s. 24(2) is to further the long term interests of society in the justice system.

I recognize that this is the overriding purpose of s. 24(2). It is not to punish the Police or compensate the accused.

I conclude, however, that the long term interests of the administration of justice are better served by exclusion in this case. The results of the breath test will be excluded from evidence.

Disposition of Charges

Over 80 Charge

In the absence of the results of the breath test there is no evidence to support a conviction with respect to the Over 80 offence and that charge is dismissed.

Impaired Operation Charge

With respect to the Impaired Operation charge, I am mindful of the direction of the Ontario Court of Appeal and Supreme Court of Canada in R. v. Stellato:

Impairment may be established where the Prosecutor proves any degree of impairment from slight to great.

I note, however, that while everyone seems to quote that one sentence, the entire quote reads as follows:

In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the judge with a reasonable doubt as to impairment the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great the offence has been made out.

This can be found in the Reasons of the Ontario Court of Appeal in R. v. Stellato, [1993] O.J. No. 18, at paragraph 14.

Evidence of Impairment

In this case Mr. Moore had red, glossy eyes. There was an odour of alcohol on his breath. There was some fumbling during his search for identification documents. One Police officer said he swayed slightly. Another Police officer did not notice that. Mr. Moore apparently never again had any problems with his balance according to the Police witnesses. He walked fine. He was driving fine.

One Police officer indicated that he had no doubt in his mind that Mr. Moore was slurring his speech. On the other hand, no one else noticed any problems with Mr. Moore's speech.

Further, Mr. Moore was responsive to questions that were put to him. He was polite and cooperative.

There were some occasions with respect to his unwillingness to identify himself but much has been made about the right to remain silent and the fact that someone thinks that this includes the right to not identify themselves is not something that I would hold against an individual.

In this particular case once he was told that his view of the law was incorrect he promptly identified himself to the police, so I read nothing into that particular matter as detracting from the overall observations of all police officers that he was polite and cooperative throughout.

In the videos that were viewed by me, including both the booking area and the breath testing area he was walking and talking just fine. I did note and in fact wrote down that in my view his speech and his posture deteriorated over time during the breath testing procedures but not to the point that I was satisfied beyond a reasonable doubt that his ability to operate a motor vehicle was impaired by alcohol.

Acquittal on Impaired Charge

After considering all of the evidence in this case I find that the Crown has failed to prove its case to the requisite degree. The charge of Operating a Motor Vehicle while his ability to do so was Impaired by Alcohol is also dismissed.

Judgment

MS. BANDINI: Thank you, Your Honour.

THE COURT: Thank you. Now, Mr. Schachter, while you were absent I suggested to Ms. Bandini that she speak to you for input as to the wording of any Order I should be making at this time.

MR. SCHACHTER: She did have that conversation with me. I think we're in agreement that the Exhibit, I believe it was 3 or 4 be sealed. I don't remember the number at the moment. The wording of that I will leave up to Your Honour.

THE COURT: I'm content with that, Your Honour.

CLERK OF THE COURT: Exhibit 4.

MS. BANDINI: Yes, the first DVD.

MR. SCHACHTER: It was the first DVD, yes.

CLERK OF THE COURT: That's Exhibit 4.

MS. BANDINI: Thanks.

MR. SCHACHTER: Thanks.

THE COURT: This is the one that includes the several files. The only one of which we actually viewed in court was the file setting out what happened in the booking area.

MR. SCHACHTER: Yes.

Ruling

The DVD will be placed in a sealed envelope. I am making an Order:

i) The sealed envelope may only be opened by Order of a judge of the Ontario Court of Justice or an appropriate Appeal Court, and

ii) Information shall be written on the envelope to make it clear that the contents are subject to such an Order.

THE COURT: Is that satisfactory, Counsel?

MR. SCHACHTER: Yes, thank you very much.

THE COURT: And as far as any existing copies of the DVD go, I'm simply relying on the discretion of the parties who have them to keep them private.

All right, anything further, Counsel?

MS. BANDINI: No thank you.

MR. SCHACHTER: No thank you, Your Honour.

THE COURT: Okay.

Dates

Date Ordered: April 18, 2016

Date Completed: April 18, 2016

Ordering Party Notified: April 19, 2016

Certificate of Transcript

I Brenda Sears, certify that this document is a true and accurate transcript of the recording made by Court Reporter, Ms. Sarah Romao of the matter of R. v. Bryon Moore, in the Ontario Court of Justice, at Milton Courthouse, 491 Steeles Avenue East, Milton, taken from Digital Recording:

1213_12_20160407_083936 6_HARRISDAV.dcr

which has been certified in Form 1.