Court File and Parties
Ontario Court of Justice
Date: 2018-12-06
Court File No.: Welland F17-0921
Between:
Her Majesty the Queen
— and —
Gordon Johnston
Before: Justice M.M. Rahman
Heard: July 25, October 23, 2018
Reasons for Judgment released on: December 6, 2018
Counsel:
Alex Burns — counsel for the Crown
Douglas Lent — for the defendant Gordon Johnston
RAHMAN J.:
1. Overview
[1] The defendant, Gordon Johnston, is charged with impaired driving and driving with excess blood alcohol (over 80).
[2] On November 21, 2017, Mr. Johnston drove to a border inspection checkpoint on the Peace Bridge. Canadian Border Services Agency (CBSA) Officer Jeffrey Dodd spoke to Mr. Johnston as part of the primary inspection process. Mr. Johnston told Officer Dodd that he had been at a Buffalo Sabres hockey game. Officer Dodd knew the game had ended two hours before and grew suspicious when Mr. Johnston told him that he had not been doing anything since the game ended. Based on his observations of Mr. Johnston, Officer Dodd said he had suspicion that he had alcohol in his body and demanded that Mr. Johnston perform an approved screening device (ASD) test.
[3] Officer Dodd and his colleague, Officer Emond-Larivee, escorted Mr. Johnston to a nearby interview room where they planned to administer the ASD test. As Officer Dodd prepared the ASD, Mr. Johnston asked to speak to another CBSA officer, Superintendent Baskerville, who was waiting nearby. Based on Mr. Johnston's apparent inability to understand what Superintendent Baskerville was explaining to him, Officer Dodd believed that Mr. Johnston was impaired. He arrested Mr. Johnston for impaired driving. Mr. Johnston was eventually transported to a Niagara Regional Police division where a qualified breath technician administered two Intoxilyzer tests that revealed Mr. Johnston's blood alcohol content was in excess of the legal limit.
[4] Mr. Johnston applied to exclude his breath samples and resulting Intoxilyzer test results under s. 24(2) of the Charter. Mr. Johnston alleged that his rights under ss. 8, 9 and 10(b) of the Charter had been violated. On the trial proper, Mr. Johnston argued that the Crown had not proven beyond a reasonable doubt that his Intoxilyzer tests were conducted as soon as practicable. He also argued that there was insufficient evidence of impairment to find him guilty of the impaired driving count.
[5] Mr. Johnston's trial proceeded as a blended one, with evidence from the voir dire applying to the trial proper. These are my reasons on both the Charter application and the trial proper.
2. Charter Application
2.1. Sections 8 and 9: Lack of Reasonable Suspicion and Reasonable Grounds
2.1.1. Facts
[6] As mentioned above, Officer Dodd became suspicious because Mr. Johnston told him he had been at a hockey game which ended two hours earlier. The officer asked Mr. Johnston to step out of the car and open the trunk. As Mr. Johnston walked to the back of the car, Officer Dodd said he smelled alcohol coming from him and noticed that Mr. Johnston appeared unsteady on his feet. Officer Dodd also said he noticed Mr. Johnston having difficulty opening his trunk. All of this led Officer Dodd to suspect Mr. Johnston had alcohol in his body.
[7] Officer Dodd said he brought Mr. Johnston into an interview room to perform the ASD test. Mr. Johnston asked if he could contact a lawyer. Officer Dodd told Mr. Johnston that he was not detained and did not have the right to call a lawyer. Mr. Johnston asked to speak to Officer Dodd's superintendent.
[8] Superintendent Baskerville entered the room and explained that if Mr. Johnston blew into the ASD and blew below ".1" he would be released, and if blew over that he would be arrested for driving with ".08." He also said that, if he refused to blow, he would be arrested for refusing to provide a breath sample on demand. Mr. Johnston pointed to Superintendent Baskerville and said "I'd like to go with his option." [1] Officer Dodd said that it was explained to Mr. Johnston a few more times that there were two options. Mr. Johnston did not appear to understand there were two options and kept saying he wanted to go with Superintendent Baskerville's option.
2.1.2. Parties' Positions
[9] Mr. Lent, on behalf of Mr. Johnston, argued that Officer Dodd lacked both reasonable suspicion that Mr. Johnston had alcohol in his body and reasonable grounds to believe that he was impaired. Mr. Lent argued that one of the bases for Officer Dodd's suspicion and belief was that Mr. Johnston was impaired was an unsteady gait. Mr. Lent said that the video evidence of Mr. Johnston walking contradicts Officer Dodd's testimony about the way his client was walking. He also noted that Officer Dodd did not say he smelled the odour of alcohol from Mr. Johnston's breath, just that he smelled it from him.
[10] Crown counsel, Mr. Burns, argued that, in deciding the s. 8 issue, the court should consider the lower expectation of privacy that people have crossing international borders. He said that because Mr. Johnston was crossing a border, his expectation of privacy was too low for any police procedures to constitute a search. Mr. Burns argued that the video quality may not be good enough to pick up the unsteadiness that Officer Dodd saw in person that evening. He argued that Officer Dodd had reasonable suspicion based on the odour of alcohol, Mr. Johnston's bloodshot eyes, difficulty opening the trunk, and his unsteadiness on his feet. He argued that Officer Dodd had reasonable grounds based on the foregoing and Mr. Johnston saying he wanted to go with Superintendent Baskerville's option.
2.1.3. Analysis
[11] I will first dispense with the Crown's argument that the reduced expectation of privacy at the border has any bearing on the s. 8 analysis here. It does not. A search is only constitutional if it is authorized by law. [2] The only lawful authority for seizing breath samples is statutory. That authority is found under s. 254 of the Criminal Code. That section requires a peace officer to have either reasonable suspicion that a driver has alcohol in his or her body (for an ASD test) or reasonable grounds to believe the person's ability to drive is impaired (for an Intoxilyzer test). Nothing in the Criminal Code says that this statutory threshold is reduced at the border. If a peace officer seizes breath samples without reasonable suspicion or grounds, the seizure is not authorized by law and is therefore unreasonable within the meaning of s. 8 of the Charter. The fact that it takes place at a border crossing is irrelevant for the purposes of s. 8.
[12] As for the issue of reasonable suspicion, I find that the Crown has shown that Officer Dodd had reasonable suspicion that Mr. Johnston had alcohol in his body. Reasonable suspicion requires only a reasonable possibility, rather than a reasonable probability. [3] Although the officer may not have specified that he smelled alcohol from Mr. Johnston's breath, it is reasonable to infer that, in the circumstances, the officer believed that the alcohol smell came from his breath because he testified that he smelled the odour as Mr. Johnston got out of his car and while Mr. Johnston was at the back of his car opening his trunk. He also observed that Mr. Johnston's eyes were bloodshot and that Mr. Johnston had some difficulty opening his trunk. Those factors are sufficient to establish a reasonable suspicion.
[13] I also find that Officer Dodd had reasonable grounds to believe Mr. Johnston was impaired. The standard of reasonable grounds requires an objectively reasonable belief. It is not a high threshold, and does not require proof on a balance of probabilities or even a prima facie case. [4] It is often described as the point at which credibly-based probability replaces suspicion. [5]
[14] I accept Mr Lent's argument that the video evidence contradicts Officer Dodd's evidence that Mr. Johnston was unsteady on his feet. I cannot accept Mr. Burns' submission that the video is not clear enough to capture what the officer saw. I say that because, when Officer Dodd was shown the video in court he said it accurately depicted the unsteadiness he had seen. Having seen the video both in court, and having reviewed it after the trial ended, I cannot see any unsteadiness.
[15] However, I am satisfied that Mr. Johnston's confused answer to the officers about which "option" he wanted to exercise was evidence that he was impaired. Although Officer Emond-Larivee did not have exactly the same recollection of the conversation as Officer Dodd, what both of them were clear about is that Superintendent Baskerville provided two options and that Mr. Johnston did not seem to understand that. The video of their interaction in the interview room seems to confirm that Mr. Johnston was confused because it shows Superintendent Baskerville leaving and re-entering the room as if to repeat what he had been saying. I do not agree with Mr. Lent that Superintendent Baskerville's explanation about what constituted a fail was likely the source of his client's confusion. What both witnesses here were clear on is that Mr. Johnston did not understand the fact that he was being given two options, even when those options were repeated.
[16] I am satisfied that Officer Dodd had reasonable grounds to believe Mr. Johnston was impaired given his confusion over two simple options, combined with the odour of alcohol, bloodshot eyes, and his difficulty opening the latch of his trunk. I find that there was no breach of ss. 8 or 9 of the Charter.
2.2. Section 10(b): Breach of Implementational Duty
2.2.1. Facts
[17] Officer Dodd arrested Mr. Johnston for impaired driving at 12:30 am. He advised Mr. Johnston of his right to retain and instruct counsel without delay. Mr. Johnston said that he wanted to call a lawyer. Officer Dodd said that he would contact duty counsel for Mr. Johnston. At 12:36 am, Officer Dodd contacted duty counsel. He left a message and requested that duty counsel call back at the Niagara Regional Police division. Officer Dodd explained that he left the Niagara Regional Police number because he was mindful about conducting the breath tests within the "two-hour limit." For that reason, he did not want to wait at the CBSA office until duty counsel called back.
[18] As it turned out, they did not leave the detachment immediately. Mr. Johnston remained in the interview room sitting handcuffed for 18 minutes. Officer Dodd testified that, after calling Niagara Regional Police to arrange for a breath technician, he spent the time getting a car prepared to transport Mr. Johnston. He said that it took about 10 minutes to get Mr. Johnston comfortable in the back of the car, because he had complained about his handcuffs being uncomfortable. Officer Dodd testified that they left the CBSA office at 1:10 am and arrived at the Niagara Regional Police division at 1:30 am.
[19] There was no evidence about what time Mr. Johnston ultimately did speak to counsel. It could not have been before 1:30 am when he arrived with the CBSA officers at the police division.
2.2.2. Parties' Positions
[20] Mr. Lent argued that the delay in allowing his client to speak to counsel violated s. 10(b) of the Charter. Mr. Lent said an hour passed between the time of his client's arrest and their arrival at the Niagara Regional Police division. Therefore, Mr. Johnston was required to wait over an hour before he had the opportunity to speak with counsel.
[21] Mr. Burns argued that there was no 10(b) breach. He argued the onus was on Mr. Johnston to establish that his s. 10(b) rights were violated. He said that, because Mr. Johnston called no evidence on the application, the Crown's evidence was insufficient to make out a breach.
2.2.3. Analysis
[22] I agree with Mr. Lent that the police breached Mr. Johnston's rights under s. 10(b). The police are required to facilitate access to counsel at the "first reasonably available" or "earliest practical" opportunity. [6] That did not happen here.
[23] Officer Dodd's decision to have duty counsel call back at the Niagara Regional Police division rather than the CBSA office was based on a desire to comply with the Criminal Code's two-hour limit within which to conduct the first Intoxilyzer test. Implicit in this desire to move things along would be an intention to leave the CBSA office for the police station relatively quickly. Instead, after being informed of his s. 10(b) rights, Mr. Johnston was left sitting handcuffed in the interview room from 12:30 am when he was placed under arrest, until about 1:00 am when he was taken out of the room to the cruiser. There was a further delay of about 10 minutes placing Mr. Johnston in the cruiser. The drive to the Niagara Regional Police division took another 20 minutes.
[24] Officer Dodd's decision to have Mr. Johnston wait until he arrived at the Niagara Police Division was not a reasonable one, even if he believed that they would be leaving the CBSA office sooner. Officer Dodd had no idea when duty counsel would call back. In his view, it would take some time. However, it was entirely possible that duty counsel would call back while there were enroute to the Niagara Detachment. There would have been no harm in having duty counsel call back the CBSA office and leaving Niagara Police as an alternate number. Officer Dodd's main concern was not prompt compliance with Mr. Johnston's right to counsel, as it should have been. His main concern was getting the first test done in the two-hour limit. The Charter, not the Criminal Code, ought to have been his principal concern after arresting Mr. Johnston. [7]
[25] I recognize that the onus is on Mr. Johnston to establish that his s. 10(b) rights were violated. However, just because Charter claimants bear the onus of proof does not mean they must call their own evidence. The evidence before me established that Mr. Johnston was arrested at 12:30 am and that the police did not facilitate contact with counsel for over an hour. The Charter required them to facilitate contact with counsel at the earliest practical opportunity. As I have explained, the evidence establishes that they failed in that duty. It does not matter that Mr. Johnston met his onus using the Crown's witnesses. That is a common occurrence at a blended trial.
[26] Consequently, I find that Mr. Johnston's rights under s. 10(b) were breached.
2.3. Section 24(2) of the Charter
[27] Having found a breach of Mr. Johnston's Charter rights, I must consider whether the evidence of his breath samples ought to be excluded under s. 24(2) of the Charter.
[28] On the first branch of the R. v. Grant [8] inquiry, I find that the breach of Mr. Johnston's rights was serious. In short, the police did not appear to give much importance to Mr. Johnston contacting counsel promptly. As mentioned above, Officer Dodd did not prioritize Mr. Johnston's right to prompt consultation with counsel. Instead, Mr. Johnston was left, essentially incommunicado, handcuffed and sitting on a bench in an interview room. He had to wait about another 30 minutes before arriving at the police division where he would finally have an opportunity to contact counsel. The police's failure to prioritize Mr. Johnston's contact with counsel constitutes a serious breach of his Charter rights.
[29] On the second branch of the Grant inquiry, I find that the breach in this case had a significant impact on Mr. Johnston's Charter-protected interests. The Court of Appeal recently confirmed the importance of facilitating contact between counsel and detained persons.
The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated. [9]
[30] In my view, the unreasonable delay in facilitating Mr. Johnston's contact with counsel had a serious enough impact on his Charter-protected interests to favour exclusion. As I have already mentioned, Mr. Johnston was left handcuffed, sitting on a bench in an interview room from the time of his arrest until leaving the CBSA office for Niagara Regional Police division. The video shows that he was essentially left alone during that time, with the officers occasionally checking in on him. It was important that Mr. Johnston be able to consult counsel during that lengthy period of detention.
[31] The third step of the Grant inquiry clearly favours admission. The evidence from the Intoxilyzer tests is reliable and is essential to the Crown's case on the over 80 charge. However, as Doherty J.A. observed in R. v. McGuffie, [10] where the first and second steps of the Grant inquiry favour exclusion, the third step will seldom, if ever, tip the balance in favour of admission. This is not one of those rare cases where the third step of the Grant inquiry can save the evidence from exclusion.
[32] I would exclude the breath samples and Intoxilyzer results under s. 24(2) of the Charter.
[33] There being no evidence of Mr. Johnston's blood alcohol content, he is not guilty of driving over 80.
3. Trial Proper: Impaired Driving
[34] On the impaired driving count, Mr. Lent relied on his arguments that the Crown had failed to establish reasonable grounds for the breath demand. Mr. Burns made no submissions on the impaired driving count.
[35] I agree with Mr. Lent that there is insufficient evidence to prove that his client's ability to drive was impaired.
[36] As mentioned above, I cannot rely on Officer Dodd's evidence that Mr. Johnston was unsteady on his feet. All that is left when that observation is removed is an odour of alcohol, bloodshot eyes, fumbling with the trunk latch, and some confusion over directions that were being explained to him. These indicia may have been sufficient to establish reasonable grounds that Mr. Johnston was impaired. They might even suggest that Mr. Johnston was probably impaired. However, they are insufficient to prove, beyond a reasonable doubt, that Mr. Johnston's ability to drive was impaired. When I consider all the factors that do show impairment, I cannot say that the only reasonable inference is that Mr. Johnston was impaired by alcohol.
[37] Consequently, I must find Mr. Johnston not guilty of impaired driving.
Released: December 6, 2018
Justice M.M. Rahman
Footnotes
[1] Mr. Johnston also referred to it as the "Baskerville option."
[2] R. v. Collins, [1987] 1 SCR 265 at p. 278 ("A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable.")
[3] R. v. Chehil, 2013 SCC 49 at para. 27.
[4] R. v. Debot, [1989] 2 S.C.R. 1140
[5] Hunter v. Southam, [1984] 2 S.C.R. 145 at p. 167
[6] R. v. Taylor, 2014 SCC 50 at paras. 24 and 32.
[7] This is not to say that the Criminal Code's timeliness concerns are never important or relevant. There are circumstances where they may be a relevant consideration, such as where a detained driver is not being diligent in contacting counsel.
[9] R. v. Rover, 2018 ONCA 745 at para. 45.