Court File and Parties

Date: October 11, 2018 Court File No.: 170084 Ontario Court of Justice

Her Majesty the Queen v. Gary Ennis

Reasons for Judgment

Before the Honourable Mr. Justice P. Wright

On October 11, 2018 at Perth, Ontario

Appearances

• A. Macdonald, Counsel for the Crown
• M. Mavraganis, Counsel for the Accused

Thursday, 11th October 2018

WRIGHT, J: (Orally)

So, on the 19th of January 2017, the Ontario Provincial Police had set up a RIDE program at the intersection of Tennyson and the 7th Line of Beckwith. At 3:15 p.m. Constable Stapleton deals with Mr. Ennis. He is directed to where she is standing at which point she observes an odour of alcohol on his breath. He informs that he had a drink at 12:30. His eyes are bloodshot, his face is red. The Constable develops a reasonable suspicion of alcohol in his body and makes a demand for the roadside test, which produces a failure. This gives the grounds for arrest and Mr. Ennis is to be transported to the detachment for an Intoxilyzer.

The Constable is asked what happens between 3:20 and 3:27 and I gather that she stands by while others search the Ennis vehicle. She also tells us that she was involved in relaying the request for a tow and a qualified technician, but she also tells us that Sergeant Poirier performs both of these functions. So, from the evidence it would appear that Constable Stapleton was not doing anything for that period of time.

Before leaving the scene she is made aware of open alcohol in the vehicle of which Mr. Ennis is the sole occupant. There is no evidence that it was cold, but again, it is January. The 18-year experience officer advises that she is aware of the risk of an unreliable result if mouth alcohol is present. She is aware of the so called 15-minute rule, but that she did not turn her mind to it when advised of the open alcohol.

As they depart to the detachment she provides right to counsel. On reading the caution she says the accused states, "I had one at lunch and one in the car," ...that he was drinking as he was stopped by her. She says that she saw this as confirmatory of the information received earlier of the open alcohol. She is asked by the Crown a couple of times did you believe him in relation to the consumption of alcohol at the time of the stop and the answer is "yes, that she had no reason not to."

Sergeant Poirier's evidence is similar except he says on route to the detachment he has Constable Stapleton confronting the accused about the open alcohol and asking him "why did you lie to me," i.e. about the earlier drink? None of the RIDE team, the arresting officer, the sergeant and the officer finding the open alcohol apparently turned their minds to the issue of mouth alcohol.

Defence was able to find a decision called Beckers, which was released in May 2017, a decision of Justice Boxall in Ottawa, which surprisingly is on very, very similar factual grounds. In that decision the factor which was the determining issue for Justice Boxall was the discovery of alcohol, open alcohol, a beer that was cold to the touch. Justice Boxall at paragraph 41 says,

Therefore, by analogy, objectively reasonable grounds would be lacking if a reasonable person in the place of the officer based on credible evidence would doubt the accuracy of the test.

At paragraph 46 and 47,

The evidence in this case is of a half full bottle of beer in immediate proximity of the driver. Furthermore, there is other alcohol in the vehicle. In addition, the driver is alone in the vehicle and the open half empty beer is cold to the touch. There is also a statement made by the accused at the outset that an hour earlier he had one drink at the Cheshire Cat.

Paragraph 47,

Apart from the accused's statement the evidence is clearly reliable and credible in the sense that there is no reason to doubt any of the officer's evidence on these points. The question is what inference or inferences arise from this circumstantial evidence? The accused's statement in these circumstances is of questionable reliability by the arresting officer is still entitled to consider it.

The court went on to conclude that the decision of the officer not to proceed with a second test in the circumstances was on the totality unreasonable. The police must turn their mind to the issue of mouth alcohol, especially when there is a RIDE program. We have a wealth of experience. The arresting officer with 18 years of experience who is aware of the risks of mouth alcohol, the sergeant who is also present, and in circumstances not only where there is open alcohol found but an accused after the fail advising that he is consuming alcohol as approaching and where the officer believes him.

There must be an ongoing obligation on the police to ensure that the reasonable and probable grounds continue to exist as new information unfolds, failing which what we have is a checklist. The requisite grounds are checked off and we ignore any subsequent relevant information. Surely there is an obligation as or we countenance continued detention even after the grounds are no longer reasonable.

In Beckers there is as I have indicated open alcohol, beer, its cold. That is significant in the Beckers case because it is a warm day. And Justice Boxall comes to the logical conclusion that a reasonable person would assume consumption in these circumstances and in doing so he applies an objective test. Open alcohol obviously will not always lead to a reasonable person drawing such a conclusion.

In this case we have the open alcohol together with the subsequent admission which created a positive belief on the part of the arresting officer. When that crystalized, there was an obligation to conduct another test. Failure to do so removes what would have been reasonable and probable grounds arising from the initial failure and the absence of which creates a detention and seizure not in accordance with the Charter.

I would reflect that this is a much stronger defence case than the facts relied upon by Justice Boxall who imparts an objective standard. In the case before me the arresting officer actually believed that there was recent consumption. In addition, right to counsel is not provided forthwith. We have no explanation of what was happening, why the officer could not have provided right to counsel between 3:20 and 3:27. It is clear the other officers were conducting the searches, calling for the tow and arranging for the technician while the arresting officer apparently stands by. This provides a second Charter breach.

The Court of Appeal in Jennings makes it very clear that not all Charter breaches are going to result in an exclusion, that there is no such thing as an automatic exclusion. Likewise, Jennings does not suggest that inclusion is automatic either. The first breach is serious in that it involves a decision to ignore the obvious in relation to an issue that the officers tell us they are alert to. We all make mistakes, however, for so many to make the same mistake certainly raises questions. Unlike Jennings, in the case before me there is more than one breach, so we have in addition to the reasonable and probable grounds issue a s.10(b) failure. The two would suggest a pattern which is a concern and, in my view, argues against admission.

Dealing with the test as soon as practicable, notwithstanding the right to counsel issue, it is apparent things were being done reasonably quickly. By the Intoxilyzer printout the first test is 37 minutes give or take from the approach at the RIDE. There is a discrepancy with respect to the technician's time and the instrument time for the first test and then we have 26 minutes from the first to the second test. We know that the Intoxilyzer is set for 17 minutes, that the setup is conducted by the instrument and there is no evidence of any human delay in these circumstances. So, I would reject the defence argument with respect to the test being taken as soon as practicable.

We are left with the two breaches. Indifference or carelessness cannot be equated with good faith according to Mitchell. Lack of good faith is not to be equated with bad faith, but society clearly has an interest in seeing matters dealt with on the merits. Society also has a strong interest in seeing that our police deal with detained persons properly and in accordance with the Charter and for those reasons I would exclude the readings and therefore the accused will be acquitted.

WRIGHT, J