Ontario Court of Justice

Date: February 16, 2017

Court File No.: Newmarket 15-05998

Between:

HER MAJESTY THE QUEEN

— AND —

KARL FREDERICK VANIDERSTINE

Before: Justice Joseph F. Kenkel

JUDGMENT

February 16, 2017.

Mr. Martin Dionne ................................................................................... counsel for the Crown

Mr. Steven Stauffer ........................................................................... counsel for the defendant

KENKEL J.:

Introduction

[1] York Regional Police received a citizen complaint about a green pickup truck that was "all over the road". The citizen who followed the truck provided police with the license plate number. Constable Zheng located a truck matching that description with the same license plate. He stopped the truck and spoke with the accused. He smelled the odour of alcohol on the accused's breath but the accused denied drinking. PC Leibold arrived to take over the investigation as PC Zheng was the Acting Sergeant with other duties that evening. Constable Leibold spoke with the accused and then made a demand for an Approved Screening Device (ASD) test. It's conceded that the failure of that test led to further testing at the station which showed that the accused's blood alcohol level exceeded the legal limit at the time of driving. The sole issue at trial was whether Constable Leibold had the required reasonable suspicion to make the s.254(2) demand.

Submissions of Counsel

[2] The defence submits that Constable Zheng's evidence that he smelled alcohol on the accused's breath and relayed that observation to PC Leibold wasn't credible as it wasn't noted. Constable Leibold did not detect the odour of alcohol so the demand was not based on a reasonable suspicion as required by s.254(2). The section 8 Charter breach was serious as the officer disregarded the statutory requirements for a demand so the breath test evidence should be excluded.

[3] The Crown submits that the evidence as a whole shows the officer had the required reasonable suspicion. In the alternative, exclusion of the evidence pursuant to s.24(2) would not be appropriate where the accused's action in continuing smoking despite the officer's instruction masked the odour of alcohol and the constable later smelled the odour of alcohol on the accused's breath before administering the ASD test.

The Evidence

[4] The accused finished a cigarette before speaking with Constable Zheng. There was a strong odour of tobacco but PC Zheng detected an odour of alcohol coming from the accused's breath. Constable Zheng testified that he told PC Leibold that he'd smelled alcohol on the accused's breath but he did not instruct Leibold to act on his observation. He understood that Constable Leibold would do his own investigation. Constable Zheng did not record his conversation with PC Leibold in his notes. That was reasonably explained – he was handing off the investigation and did not intend or expect that PC Leibold would act solely on the information he provided.

[5] Constable Leibold did not recall anything specific about his conversation with PC Zheng other than he was to continue an investigation for driver sobriety. When PC Leibold spoke with the accused, he was smoking another cigarette. The officer told him to put out the cigarette. Constable Leibold observed a case of beer in the back of the pickup truck. The accused's eyes were glassy.

[6] The accused started smoking yet another cigarette contrary to the officer's instruction. He continued to smoke despite being told not to by the officer. Constable Leibold was unable to determine whether there was an odour of alcohol on the accused's breath given the accused's smoking. Constable Leibold suspected the accused driver had alcohol in his body and made an ASD demand based on the following evidence:

• The citizen report that the accused's truck had been "all over the road"
• The case of beer in the back of the truck. One can was open but not accessible to the driver.
• The accused's glassy eyes which the officer took as an indicium of alcohol consumption
• The accused's relaxed physical demeanor
• The fact that the accused continued to smoke after police direction to stop, from which the officer inferred that he was trying to mask the odour of alcohol on his breath

[7] The officer handed the accused the ASD mouthpiece and had him blow through it to check for obstructions prior to administering the test. The accused blew through the mouthpiece and the officer noted a "strong odour of alcoholic beverage" on his breath. The officer made that observation after the demand but prior to conducting the ASD test.

[8] In cross-examination, Constable Leibold agreed that his note about observing the odour of alcohol on the accused's breath was added on a later page. He explained he'd added that back at the station when he had time and wasn't directly dealing with the accused. He confirmed that he didn't smell alcohol prior to the demand given the smoking. The officer disagreed that he'd lied about smelling alcohol on the accused's breath. He explained that when the accused blew into the mouthpiece he blew directly towards the officer's face and it was then, away from the smoke in the car, that he smelled alcohol.

Reasonable Suspicion

[9] Section 254(2) provides that a police officer may by demand require a driver to perform physical tests or provide a breath sample where there are "reasonable grounds to suspect" that the person has alcohol or a drug in their body. Reasonable suspicion is a lower standard than reasonable grounds. Reasonable suspicion requires objective facts which engage the possibility not probability of an offence – R v Chehil 2013 SCC 49 at para. 27.

[10] The Crown bears the burden of proving that the officer met the s.254(2) requirements for a lawful demand – R v Haas, [2005] OJ No 3160 (CA).

Analysis

[11] The defence submits that Constable Leibold did not detect an odour of alcohol on the accused's breath and therefore with no odour and no observed driving he did not have the required reasonable suspicion for the demand.

[12] An odour of alcohol coming from the accused's breath is sufficient to support a reasonable suspicion of alcohol in the body – R v Schouten 2016 ONCA 872. That doesn't mean that an odour of alcohol is a pre-requisite to an ASD demand or required in every case. An officer must consider the totality of the circumstances and in some cases there will be other evidence that reasonably provides the required suspicion even in the absence of an observed odour of alcohol. – R v Hryniewicz [2000] OJ No 436 (CA). Smoking that can mask the odour of alcohol is one circumstance that courts have considered where there is no odour of alcohol detected on the accused's breath – R v Defend 2010 ONCJ 206.

[13] Even though Constable Leibold did not observe the accused's driving, he was entitled to take into account the information about the accused's driving that was provided to police by the citizen who called police. In determining whether there are objective facts which give rise to a reasonable suspicion an officer is entitled to rely on hearsay information provided by others – R v Bush 2010 ONCA 554 at para 61.

[14] Constable Leibold conducted his own investigation and did not recall or rely upon the information provided by PC Zheng. That's consistent with PC Zheng's evidence that their discussion was brief and PC Leibold was not meant to act solely upon the information provided. The accused's smoking interfered with PC Leibold's ability to determine whether there was an odour of alcohol on the accused's breath. When the accused persisted despite clear instruction to stop where he knew that the officer was investigating drinking and driving, the officer reasonably inferred that the purpose of the accused's action was to mask his breath with smoke.

[15] The accused's persistence in smoking along with information that the accused's driving had been "all over the road", the presence of beer in the back of the truck, the accused's glassy eyes which can be an indicator of alcohol consumption, and the accused's relaxed physical demeanor all led the officer to reasonably suspect that the accused had alcohol in his body. The fact that the accused had been driving and was stopped by PC Zheng was relayed by that officer and shown by the circumstantial evidence at the roadside.

[16] The officer's suspicion was not based on generalized indicia (such as nervousness) that could apply to a large group of persons. On the contrary, the facts relied upon were particular to this accused and the totality of the circumstances provided an objectively reasonable basis for the officer's suspicion.

Section 24(2) – Exclusion of Evidence

[17] In the alternative, if the officer's suspicion was not reasonable, the breach would be less serious where the officer turned his mind to the correct statutory criteria, proceeded in good faith but where his judgment fell just short of the required standard. There would be little impact on the accused's s.8 Charter protected interests where the officer who stopped the accused smelled alcohol on his breath and the only reason the arresting officer did not make the same observation is that the accused purposely masked the odour with smoke. Further, the arresting officer did smell the odour of alcohol from the accused's breath prior to administering the ASD albeit after the demand was made. I accept Constable Leibold's evidence as credible – that once the accused was away from the smoke and blew directly towards the officer PC Leibold detected the odour of alcohol. The fact of an odour on the accused's breath is consistent with the evidence of PC Zheng and consistent with the admitted fact of the Approved Instrument test results which show the accused did have alcohol in his body that evening. The brief ASD test and the Approved Instrument test at the station were both minimally intrusive. The accused's detention for testing pursuant to an insufficient initial demand would favour exclusion, but society's interest in the adjudication of the case on the merits would outweigh the minimal nature of this breach. Considering all of the factors, exclusion of the breath test evidence in these circumstances would bring the administration of justice into disrepute.

Conclusion

[18] I find that the Crown has proved that Constable Leibold had the required reasonable suspicion for the s.254(2)(b) ASD demand. The application to exclude the breath test results from the trial evidence is dismissed. The parties agree that the Crown has otherwise proved the count alleged. There will be a finding of guilt.

Released: February 16, 2017

Justice Joseph F. Kenkel