Court File and Parties
Court File No.: 160746 Date: June 19, 2017 Ontario Court of Justice
Between: Her Majesty the Queen — and — Alane Duchesne
Before: Justice J. Peter Wright
Heard on: May 18, 2017
Ruling released on: June 19, 2017
Counsel: Roberto Corbella for the Crown James McGillivary for the accused Alane Duchesne
WRIGHT, J.:
Ruling
[1] This is a Ruling of an interim nature in relation to the Duchesne matter.
[2] The factual background is as follows:
[3] On the 23rd of October, 2016, Constable Nicholas is on patrol in the Town of Perth. At that time, he observes a motor vehicle operated by the accused southbound from Mary Street onto Wilson, which cuts off the cruiser. As a result, the lights are activated and the vehicle pulls over. Upon approaching the vehicle the accused said "I did turn right", the Officer notes that the turn had been left. The Constable detects an odour of alcohol from the accused's breath. She is asked if she consumed alcohol, she says "do I have to declare"? The Constable observes a dark red substance on her lip area and he asks again and is told "I declare no." At 11:38 the approved screening device demand is read; 11:39 there is a demonstration and a reading of 0. At 14:40 the accused is given a fresh mouth piece, there is an error result, a fresh mouth piece is provided and a suitable sample obtained at 11:41 as a fail.
[4] There follows a breath demand and then at 11:51 they are at the detachment; Ms. Duchesne is put in touch with Duty Counsel. She indicates that she is satisfied with the consultation. There are two tests resulting in readings of 201 and 194. The defence position is that the Constable should have followed a Memo of Direction dated the 26th of November, 2013 from Deputy Commissioner Blair of the Ontario Provincial Police. The Memo provides that "further investigation revealed that any hand sanitizing product with an alcohol base, fruit juices, sugary foods/drinks and bread products will affect the readings of the ASD." The Memo goes on to indicate that members are to "please ensure no food or drink is consumed fifteen minutes before a test is commenced. This includes alcohol free self-breath tests".
[5] Constable Nicholas testified that he was unaware of this Memo. He did not adopt the conclusions of the Memo per se but he did say that if he had been made aware of it he would have followed it as it is a directive from a superior officer.
[6] It is important to remember that the results of the approved screening device are such as to provide reasonable and probable grounds to make an Intoxilyzer demand. We are not at the proof beyond a reasonable doubt stage, merely reasonable and probable grounds. There are, of course, two components to reasonable and probable grounds – a subjective belief which viewed objectively must be reasonable. It is established that, if an officer has reason to believe that the test may be inaccurate because of mouth alcohol, then the officer needs to delay the administration of the test. That an officer is entitled to delay where there are grounds to believe that a delay is necessary, R v Dewald, [1994] 92 CCC 3rd 160, but that the mere possibility of alcohol being consumed within the same time frame does not automatically render test results as invalid. R v Einarson, [2004] 183 CCC 3rd 19. Constable Nicholas has stated that he was unaware of the Memo or of the suggestion of the concerns contained within it.
[7] The defence relies upon the decision in R v. Wong [2016] O.J. No. 6043, a decision delivered in November, 2016, by my sister, Justice Greene. The facts are very much on point with the case before me. The same Memo indeed is a key factor in that decision:
[8] "26. At first thought, I found the Crown's argument very compelling. Firstly, there was no evidence that Mr. Wong consumed anything in the 15 minutes prior to the test. I agree with the Crown that the officer's evidence that he cannot recall there being an open can of Red Bull in the vehicle but allowed for the possibility that it was there and he either did not notice it or no longer recalls it, is not evidence that the can of Red Bull was in fact in the car or that Mr. Wong drank from this can in the minutes preceding the test. Secondly, it seems difficult to believe that police officers must wait 15 minutes before administering an ASD at a RIDE location where the expectation is that the detention is short. Thirdly as an Ontario Court of Justice judge who has heard many over 80 trials since this memorandum was issued, I have never been provided with this memorandum before nor have I ever heard an officer testify that food or sugary drinks can reasonably affect the reliability of the dragger 6810. In relation to this latter point, I am mindful that just because it has never been presented to me before is not a basis to reject the validity of this document. Moreover, the Crown conceded that the document is valid, was provided to commanders and was operative at the time of this offence. Moreover, P.C. Saini, while not able to recall details of this memo per se, did recall seeing it at some point in time.
[9] 27. It is only after some reflection, that I have concluded that P.C. Meyer's belief that the results of the ASD was reliable is not objectively reasonable given his failure to advert to the potential effect of recent consumption of food or drink on the reliability of the test.
[10] 28. …Finally, given that the officer did not even know about this memorandum and as a result did not take note of the presence or absence of food or drink in the vehicle nor did he ask Mr. Wong about any recent consumption of these products, I cannot conclude that P.C. Meyer would not have done things differently. In fact, in light of the fact that this was a directive from high up within the OPP, it is reasonable to conclude that had P.C. Meyer known of this directive, he would have made the relevant inquiries.
[11] 29. I therefore find that the officer's belief that the ASD result was reliable is not objectively reasonable and that his belief in the reliability of the result is grounded by his lack of knowledge about this memorandum and his failure to follow the protocol articulated in this memorandum. Since the officer had no other basis other than the fail to make the second demand, I find that the subsequent demand and arrest was unlawful and that compelling Mr. Wong to provide two samples of his breath into an approved device violated his rights as guaranteed by section 8 of the Charter."
[12] Greene J. went on to conclude that there was a Charter violation in that the subsequent demand and arrest were unlawful.
[13] The Crown in both the case before me and before Greene J. concedes that the Memo was valid in that it came from the Deputy Commissioner, as opposed to the contents being accurate.
[14] The Court is, of course, bound to find a decision of a brother or sister justice as persuasive and also, in the interests of comity and consistency, I think the Court should wherever possible attempt to follow decisions of the same Court. This Court is, however, not bound by a decision of the same level of Court.
[15] With the greatest of respect, however, I am unable to follow the decision in R v. Wong.
Reasons for Distinguishing R v. Wong
Is the writer of the "Memo" in any way qualified to offer scientific guidance and, if so, what is the basis for this "Memo"?
I think I should no more accept such a Memo as being capable of setting out an evidentiary concern than if the Memo had taken an opposite tack. If, for example, in light of the jurisprudence which I have discussed with respect to the issue of mouth alcohol, would one expect to have the Courts rely upon a Memo from a senior officer advising that members "need no longer be concerned with mouth alcohol"?
I think it may well be unreasonable for this Court to hold that Constable Nicholas should be bound to follow a Memo which he was unaware of. R v. Einarson
Perhaps most importantly, there must obviously be a foundation for any factual findings of the Court. Greene J. accepts, without question, the underlying premise of the Memo as providing an evidentiary foundation for the decision, without which there is no evidentiary basis for the conclusions upon which the decision rests. A Memo of this sort does not become evidence with respect to the content of the Memo. There might have been some evidentiary value had the Memo been acknowledged and adopted by the witness. There are no exceptions to the hearsay rule which permit the document to be entered in evidence as to its contents.
There cannot be any suggestion of taking judicial notice when the experience of this Court and indeed the Court in Wong is to the contrary with respect to the contents of the Memo in question.
[16] For these reasons, I am of the view that it would be an error for me to follow the decision in R v. Wong.
[17] I have taken the unusual step of allowing the defence, should they choose to do so, to call evidence as I felt that to do otherwise would be unfair given that defence counsel in this case was relying entirely upon the decision in R v. Wong, which as I have indicated is on point with the matter before me.
[18] I had indicated on the first day of trial that I would reserve the right to provide more detailed reasons and in the interests of guiding both Crown and defence I am releasing those Reasons now.
Released: June 19, 2017
Justice J. Peter Wright