Court Information
Court: Ontario Court of Justice
Court File No.: Halton 3621/17
Date: August 8, 2018
Before: Justice Lesley M. Baldwin
Heard: June 11, 2018
Reasons for Judgment Released: August 8, 2018
Parties
Between:
Her Majesty the Queen
— And —
Aaron S. Brouwer
Counsel
For the Crown: M. Godinho
For the Defendant: B. Ducharme
BALDWIN J.:
Introduction
[1] Aaron Brouwer is charged with operating a motor vehicle with a BAC Over 80 on November 16th, 2017 at the Town of Milton.
[2] Mr. Brouwer alleges violations of ss. 8, 9, 10(a) and 10(b) of the Charter and seeks exclusion of the breath readings pursuant to s. 24(2).
[3] The trial and Charter evidence proceeded in a blended fashion.
[4] Officer Scott Fettes was the arresting Officer and the only witness for the Crown.
[5] Mr. Brouwer testified on the Charter Applications only.
Testimony of Officer Scott Fettes
[6] Officer Fettes testified that he has been an officer with the HRPS since 2014.
[7] On November 16, 2017 he was conducting a 'pro-active RIDE program' outside the Ivy Arms Pub in Milton.
[8] At 10:40 p.m., he observed a black pick-up truck leaving the rear parking lot of the Ivy Pub and travel eastbound on Mill Street, then northbound on Martin Street.
[9] Officer Fettes initiated a traffic stop at 97 Martin Street and spoke to the lone occupant driver, Mr. Brouwer, at 10:45 p.m.
[10] The driver's licence, ownership and insurance documents were requested and provided with no issue.
[11] Officer Fettes asked Mr. Brouwer if he was leaving the Ivy Pub and Mr. Brouwer said 'yes'.
[12] The Officer asked if he had consumed any alcohol tonight and Mr. Brouwer said 'that he was'. Mr. Brouwer said that he had consumed 3 to 4 beers and had a beer spilled on him by a friend.
[13] Officer Fettes testified that he could smell alcohol coming from the vehicle.
[14] During this conversation with Mr. Brouwer, which occurred between 10:45 and 10:49, Officer Fettes testified that he formed the reasonable suspicion that Mr. Brouwer had been consuming alcohol and told Mr. Brouwer that he would be requesting an ASD.
[15] Officer Fettes went back to his cruiser and made a general request for the closest unit to bring an ASD to his location.
[16] He was advised that Officer Lean was in the area of the station located at 490 Childs Drive and would be coming.
[17] Officer Fettes testified that the station was only a 3- to 4-minute drive away at that time of the night.
[18] Officer Lean attended at 10:56 p.m. with a Drager 7410 Serial Number ARKB-0045 which he has been trained to use.
[19] Officer Lean advised him that she had self-tested the device at 10:35 p.m. and it registered a PASS.
[20] Officer Fettes testified that he was aware of the 15-minute wait if he had reason to believe there was residual mouth alcohol. He was not concerned about that in this case. Mr. Brouwer told him in their initial conversation that he had his last drink at 10:40 p.m. and he would have waited 15 minutes after that to conduct an ASD test.
[21] Officer Fettes testified that the device had been last calibrated on November 5, 2017 and he was aware that the device was calibrated to FAIL at a reading of 100 milligrams of alcohol in 100 millilitres of blood.
[22] At 11:00 p.m. Mr. Brouwer provided a proper sample which registered a FAIL.
[23] Having formed RPG that Mr. Brouwer's ability to 'operate a motor vehicle was impaired by alcohol and his BAC was over 80', Officer Fettes arrested Mr. Brouwer for operate Over 80 at 11:01 p.m.
[24] Mr. Brouwer was cuffed to the rear, searched, and placed in the back of Officer Fettes' cruiser.
[25] At 11:07 p.m., Officer Fettes read the standard RTC from the back of his police issued notebook. When asked if he understood, Mr. Brouwer replied 'yes'. When asked if he wished to call a lawyer now, Mr. Brouwer replied 'yes' and provided the name of his lawyer – Brian Ducharme.
[26] The formal Breath Demand was read at 11:11 p.m. and understood.
[27] Officer Fettes departed the scene for 12 Division at 11:15 p.m. and arrived at 11:20 p.m.
[28] Officer Fettes testified that he did not implement the RTC at the scene because he knew the ASD was nearby and the delay would not be excessive.
[29] Mr. Brouwer was paraded before the Staff Sergeant in the usual course.
[30] Officer Fettes called Mr. Ducharme's office number at 11:40 p.m. He was directed to another number and Mr. Ducharme picked up.
[31] Mr. Brouwer spoke to his lawyer in private. The call ended at 11:50 p.m.
[32] Officer Fettes provided his grounds for the arrest to the breath technician, Officer Lean, and turned over custody of Mr. Brouwer to her at 11:50 p.m.
[33] Officer Fettes served a true copy of the Certificate of a Qualified Technician upon Mr. Brouwer at 1:10 a.m.
[34] The Certificate was filed as Exhibit 'A' subject to the Charter rulings. It showed readings of 130 and 120.
[35] Mr. Brouwer was released from the station at 1:18 a.m.
[36] In cross-examination Officer Fettes testified that he did tell Mr. Brouwer why he had stopped him. He might have said he stopped him because he had just left a licensed liquor establishment. He has no note of what he said.
[37] He told Mr. Brouwer that he would be administering an ASD but he does not recall if Mr. Brouwer was inside or outside of his own vehicle at the time.
[38] Officer Fettes agreed that he did not ask Dispatch where the ASD was physically located or what officer would bring it.
[39] At 10:49 p.m. he asked if an ASD was available. He does not recall the exact response to that request and has no note of that.
Testimony of Aaron Brouwer – Charter Applications Only
[40] He lives in Wallaceburg, Ontario and owns an Electrical Contracting business. He had a contract in Milton that he was working at during this time period.
[41] He had dinner and drinks at the Ivy Pub that evening and someone in the Pub spilled a drink on his lap.
[42] He left the Pub and was driving his truck back to his hotel when the officer pulled him over.
[43] He was asked where he was headed and to produce his driving documents. He produced them and the officer took them back to his cruiser.
[44] The officer did not tell him the reason he had been stopped. He has never heard the words 'pro-active RIDE program' before. Mr. Brouwer could not recall if any other words were used for the stop.
[45] He waited in his truck for about 10 minutes before the ASD Demand was read to him.
[46] During that time he was not given his RTC. If he had been he would have called Mr. Ducharme on his cell phone that he had with him in his truck to get some answers as why he had been stopped. It would have taken less than a minute to make this call.
[47] In cross-examination Mr. Brouwer agreed that the officer had asked him if he had anything to drink.
[48] He told the officer he had a couple of pints.
[49] The officer asked when his last drink was and he said at 10:40 p.m.
[50] He agreed with Crown counsel's suggestion that when the officer asked him about consuming alcohol he was aware that he was being investigated for a drinking and driving offence.
[51] The officer asked him to exit his vehicle and then told him to get back in. The officer told him that he (Mr. Brouwer) was a big guy and he wanted back-up.
[52] The officer did not tell him that he was waiting for an ASD.
Charter Issues
Section 8 – Onus on Crown
[53] The Applicant submits that the ASD Demand was not made forthwith. There was no formal reading while the Applicant waited in his truck at the scene. The officer has no note of what he told the Applicant and the Applicant has testified that he was not told the reason for the wait.
[54] The officer testified that he formed a reasonable suspicion that the Applicant had been consuming alcohol. He smelled the odour of alcohol coming from the vehicle. He did not testify that the Applicant had the odour of alcohol on his breath. The officer was aware that the Applicant had a beer spilled on him. The officer did not say that he formed a reasonable suspicion that the Applicant had alcohol in his body and he could not say precisely when he formed his suspicion.
[55] The Crown submits that the officer had a reasonable suspicion to support the ASD demand. The officer saw the Applicant exit a bar. The officer smelled alcohol coming from the vehicle and there was admission as to alcohol consumption.
[56] The officer requested the ASD at 10:49 p.m. and it arrived 7 minutes later. The ASD test was performed 4 minutes later, so it falls within the forthwith window.
No Such Device
[57] The Applicant submits that there is no ASD known as a Drager 7410 Serial Number ARKB-0045.
[58] The officer claimed he was trained on this non-existent ASD and could not recall when that training took place.
[59] The officer did not say that he believed the device to be an approved screening device.
[60] The Applicant submits that this is distinguishable from the facts noted in R. v. Gundy, 2008 ONCA 284 at paragraphs 44 through to 48, where an officer has given an incomplete description of the device or has transposed a number:
44 In determining whether the particular device was approved, the court must consider all the evidence, including any circumstantial evidence. The court is entitled to draw reasonable inferences from the evidence. Thus, in my view, if the officer in his or her testimony refers to the device as an "approved screening device", the trial judge is entitled to infer that the device was indeed an approved device. As such, the officer is entitled to rely upon the "fail" recorded by the device to find that there were reasonable and probable grounds to make the breath demand.
45 The officer is not required to refer to the device by its particular brand and number such as "Alcotest 7410 GLC". Further, references to a part only of the identification such as "Alcotest" or "Alcotest GLC" do not rebut the reasonable inference from the officer's reference to the device as approved that it is indeed an approved screening device. The addition of the manufacturer's name, for example "Drager Alcotest 7410 GLC", is likewise not fatal: see R. v. Neziol (2001), 22 M.V.R. (4th) 299 (Ont. S.C.J.). Further, in my view, the context in which the officer refers to the device as approved is of no particular moment. Thus, if the officer testifies that he or she used an approved screening device, or agrees with the suggestion that it is an approved screening device, such testimony is direct evidence upon which the trial judge can rely: see e.g. R. v. Latulippe (2005), 26 M.V.R. (5th) 97 (Ont. S.C.J.).
46 Where, as here, the officer states that she made a demand that the motorist provide a sample for analysis by the approved screening device, surely the trier of fact can reasonably infer that the officer used an approved device. That was the holding of the trial judge in this case and I agree with that decision. As Langdon J. said in R. v. James, [1995] O.J. No. 190 (Gen. Div.) at para. 5, "what is the likelihood that the O.P.P. would supply its constables with an unapproved device with which to enforce the R.I.D.E. programme?"
47 In my view, cases holding that the officer did not have reasonable and probable grounds because, although the officer referred to the device as an approved screening device, he or she used a shorthand reference to the device or transposed some of the numbers or letters are wrongly decided. In the absence of some credible evidence to the contrary, it is not reasonable to infer that an officer who says that he or she used an approved screening device actually used an unapproved device. That was the holding of this court in R. v. Kosa (1992), 42 M.V.R. (2d) 290 at 291:
• We are of the view that the manufacturer's model number given by the officer in evidence as Model JA3 rather than Model J3A as set forth in the regulations was no more than an innocent transposition of a number and letter and that the unchallenged assertion by the officer that it was an approved screening device is sufficient proof thereof. If such is the case, there is no need to look further to justify the finding of reasonable and probable grounds. [Emphasis added.]
48 Of course the question of whether the officer had reasonable and probable grounds depends on the circumstances of each case. My only point here is that the trial judge is not confined to direct evidence and is entitled to and should draw reasonable inferences from the proven facts.
[61] The Applicant submits that the officer's belief he was using an approved screening device must be both subjectively held and objectively variable. Neither requirement was met in this case.
[62] The Crown submits that the officer's failure to correctly identify the approved screening device he used is a minor matter and, like in R. v. Gundy (supra), it does not affect the reasonable and probable grounds for the breath demand.
[63] The Crown submits that the important point is that the officer knew what the device was calibrated to FAIL at.
Section 10(a)
[64] The officer has no note of telling the Applicant he was conducting a 'pro-active RIDE program'. The Applicant testified he was not told this and has not heard the term before. The Applicant testified that he was not told the reason for the stop.
[65] The Crown submits that in cross-examination the Applicant testified that he was aware he was being investigated for a drinking and driving offence when the officer asked him about alcohol consumption.
Sections 9 and 10(b)
[66] The Applicant was detained at the scene while the officer was waiting for the ASD.
[67] The officer had no direct knowledge of when the ASD would be arriving or where it was coming from. The officer had no basis to not advise the Applicant of his RTC during this wait period. The officer needed to know how long the wait would be to make this determination, which is information he did not have. The Applicant relies upon the judgment in Regina v. Steele, [2014] ONCJ 583 at paragraph 32, a decision by OCJ Justice Paciocco, as he then was:
The problem is that her belief that Cst. Todd would not be long was not a reasonable one on the information available to Cst. Laska. Ottawa is a large city and Cst Laska did not seek or receive any information about where Cst. Todd was. She therefore had no reasonable basis for estimating the length of time it would take and decide whether to accommodate section 10(b). Moreover, she contributed modestly to the overall delay by not calling for the ASD device immediately, something that she should have done given that her obligation was to administer the test "forthwith." Instead, she ran Mr. Steele's details and made her notes before making that call. She did not take reasonable steps; once she had reasonable grounds to suspect that Mr. Steele had alcohol in his body, she should have made the ASD demand, called for an ASD device immediately, and acquired the means to make a real as opposed to speculative assessment as to how long it would take the device to arrive. If the delay was going to be short, she could have delayed giving the right to counsel otherwise she should have facilitated Mr. Steele's right to call.
[68] The Crown submits that the officer believed that it would not take long for the ASD to arrive and that is sufficient.
[69] The Crown relies upon the case of R. v. Rienguette, [2015] O.J. No. 4647 a decision of the SCJ affirmed by the OCA 2016 ONCA 450, where a 13-minute delay waiting for the ASD did not result in a section 10(b) breach because there was no realistic opportunity to contact counsel.
[70] The Applicant submits that this case is distinguishable from the matter before this Court and refers to paragraph 21 in Rienguette (supra) in this regard:
It is not clear from the reasons of the trial judge that he considered the length of time it would have taken Mr. Rienguette to consult counsel from the roadside notwithstanding that evidence had been led at trial suggesting it would take not more than five minutes to do so. Ordinarily, it might be expected that a trial judge would, in his reasons, touch upon evidence tendered at trial on a contested issue. However, a fair reading of the trial judge's decision is that regardless of the time required to consult counsel, such time did not exist in this case. His decision, when read as a whole, indicates that during the 13 minutes of delay the officer was not simply standing around waiting for the ASD to arrive, but was involved in the discharge of his duties to an extent that made it unrealistic for him to implement the Appellant's section 10(b) rights, even if to do so were to take only five minutes.
Section 24(2)
[71] The Applicant submits that given the numerous breaches of Charter rights in this case, based on the 3-pronged Grant analysis, and the approach adopted in R. v. Steele (supra) "that the long-term interest of the repute of the administration of justice is best served by excluding the ASD results and the Intoxilyzer results they led to." (paragraph 61)
[72] The Crown submits that there have been no Charter violations, and if the Court finds otherwise, they are very minor ones and do not warrant the exclusion of evidence as breath testing has been held to be minimally intrusive.
Rulings
Section 8
[73] Section 8 of the Canadian Charter of Rights and Freedoms provides that everyone has the right to be secure against unreasonable search or seizure.
[74] As I stated above, in most cases, an accused bears the burden of persuading the court on a balance of probabilities that his or her Charter rights have been infringed, but in the section 8 context, once the accused has demonstrated that the search or seizure was a warrantless one, the burden of persuasion shifts to the Crown to show that on a balance of probabilities the search or a seizure was reasonable. To demonstrate compliance with s. 254(3) the Crown must show that the police officer making the breath demand had the necessary reasonable and probable grounds to do so.
[75] The relevant portions of section 254(3) of the Criminal Code provide that:
(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person ...
(a) to provide, as soon as practicable,...
(i) samples of breath that, in a qualified technician's opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood,...
[76] So, to demonstrate compliance with section 254(3), the Crown must show that the police officer making the breath demand had the necessary reasonable and probable grounds to do so.
[77] 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.
[78] 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.
[79] There is no minimum time period. Further, there is no mandatory questioning that must occur before an officer can objectively have reasonable and probable grounds.
[80] A trained police officer is entitled to draw inferences and make deductions drawing on experience. A trial judge is entitled to take that experience and training into account in assessing whether he objectively had reasonable and probable grounds.
[81] It is trite to say that Officer Fettes' RPG to arrest for Over 80 and make a breath demand arise from the FAIL on the ASD.
[82] It is concerning that Officer Fettes has testified that he was conducting a 'pro-active RIDE patrol' that evening without being equipped with an ASD.
[83] Once provided with a device, this Officer was not able to tell the Court that he used an approved screening device. A Drager 7410, Serial Number ARKB-0045 is not an approved screening device. He was reading from his notebook as he gave this flawed evidence.
[84] The Crown's Charter materials state that the ASD was a Drager 6810, S/N ARKB-0045. It is reasonable to infer that this correctly identified ASD was in the officer's disclosure material and the Crown just ran over it – as if it was an insignificant detail to check. This information would have been in front of the Crown as he took his witness through examination in-Chief at high speed despite requests by me in this, and other cases, to please slow down.
[85] Gundy (supra) directs that the Court is to look at all the circumstances in the case in determining whether an approved screening device was used. Unlike in Gundy where innocent half descriptions or a misplaced number were used, I find that the presentation of evidence on this issue was unacceptably sloppy.
[86] The Officer went further and testified twice that he had been specifically trained to use this non-existent device and could not say when, even though he has been an officer since only 2014.
[87] I am not prepared to reasonably infer that this was an approved screening device. That would be akin to mopping up a mess made by the officer and the Crown and that is not my function as the trier of fact.
[88] For this reason alone, there has been a violation of s.8 – but there is more.
[89] Officer Fettes testified that he formed a reasonable suspicion that the Applicant had consumed alcohol sometime between 10:45 and 10:49 when he was speaking to him.
[90] Officer Fettes did not say that he formed a reasonable suspicion that the Applicant had alcohol in his body. Officer Fettes could not say exactly when he formed this suspicion and did not say if the Applicant was inside or outside of his vehicle at the time. As I will find in other areas of his evidence, he has no notes with respect to details like this.
[91] Similarly with the requirement that the demand be made forthwith submissions, which means immediately or without delay, is a question of the circumstances present in each case. This submission is tied up with the s. 9 and s. 10(a) submissions.
[92] The Applicant was not told the reason he was stopped according to his evidence which I have no reason to reject.
[93] Officer Fettes has no notes of what he told the Applicant – maybe it was because he was conducting a 'pro-active RIDE patrol', or perhaps it was because he had seen the Applicant leaving a bar – I have no way to know because he has no notes.
[94] The Applicant testified that he was left sitting in his truck waiting for the officer to return. He was not told about the wait being for the arrival of an ASD.
[95] The Applicant agreed with the Crown's suggestion that he believed he was being investigated for a drinking and driving offence because he had been asked questions about his alcohol consumption. That was an honest answer based on his reasonable assumption in the circumstances he found himself in. That does not equate with being told the reason for your detention which the police are required to do.
[96] This same poor investigative recording issue arises on the s. 10(b) Application.
[97] Officer Fettes dispatched for an ASD to be brought to his location. He did not inquire as to where it was or when it was to arrive. He assumed it would not be an excessive delay in the circumstances. Too much assuming was going on here.
[98] As in Steele (supra), the officer is required to have this information in order to determine if RTC need to be given at the scene awaiting the arrival of an ASD.
[99] I accept the Applicant's testimony that if he had been advised of his RTC at the scene during the wait period, he would have contacted Mr. Ducharme on his cell phone.
[100] Finally, once Officer Fettes obtained the FAIL reading on the device, he testified that he formed RPG to arrest the Applicant for impaired operation and over 80. Although the arrest was properly for operate over 80, there were zero grounds to form RPG for impaired operation in this case. This is another example of unacceptable sloppiness in the presentation of this particular case.
[101] Accordingly I find that there have been breaches of the Applicant's rights under s. 8, 9, 10(a) and 10(b) of the Charter and, for the same reasons outlined in Steele (supra) on the s. 24(2) analysis, the results of the ASD testing and the Intoxilyzer test results are excluded from the evidence.
[102] The charge is dismissed.
Conclusion
Released: August 8, 2018
Signed: Justice Lesley M. Baldwin
Obiter Dicta
These should be straightforward cases for the police and Crown to present to the Court. Perhaps a checklist could be prepared by a Senior Crown Attorney and used by the police in their investigation and by Crown Attorneys in their Court presentations.