Court Information
Ontario Court of Justice
Date: 2018-12-11
Court File No.: 17-9740
Parties
Between:
Her Majesty the Queen
— And —
Colin Findlater
Judicial Officer and Counsel
Before: Justice G.L. Orsini
Heard on: October 30, 2018
Reasons for Judgment released on: December 11, 2018
Counsel:
- Ms. L. Ducharme — counsel for the Crown
- Mr. R. Venables — counsel for the accused Colin Findlater
Judgment
ORSINI J.:
Introduction
[1] Colin Findlater is charged with operating a motor vehicle with a blood-alcohol concentration in excess of the allowable limit.
[2] He says the arresting officer violated his rights under s. 8 of the Charter to be free from unreasonable search and seizure by making an Intoxilyser demand in circumstances that were not objectively reasonable. He argues the breath readings should not be admitted into evidence, as to do so would bring the administration of justice into disrepute.
[3] As no other defence was advanced, the case rises or falls on the Charter application.
[4] For the reasons that follow, I find that the officer's grounds for the arrest and Intoxilyser demand in this case were objectively reasonable and that there was no violation of Mr. Findlater's rights under s. 8 of the Charter. Accordingly, there is no basis for excluding the breath readings and Mr. Findlater will be found guilty.
Evidence
[5] The Crown called two witnesses in support of the charge namely, Constable Fluit and Constable Janicus. The defence called no evidence.
[6] At 11:44 p.m. on the evening of September 17, 2017, Mr. Findlater was operating a motor vehicle as it approached a RIDE Program that was being conducted by the above-noted officers.
[7] Mr. Findlater was the only occupant of the vehicle. While speaking to Constable Fluit, he said he was coming from a house near Fanshawe College where he had been consuming alcohol. Constable Fluit observed Mr. Findlater to have "red glassy eyes". He could detect an odour of alcohol coming from within the vehicle, which he said was "strong enough that I could smell it coming out of the vehicle".
[8] At 11:47 p.m., he made a demand for sample of Mr. Findlater's breath into an Approved Screen Device (ASD).
[9] At 11:49 p.m., five minutes after the stop, Mr. Findlater complied with the officer's demand and registered a fail on the ASD. The officer was of the view that a fail meant that Mr. Findlater had a blood-alcohol concentration in excess of 80 mg per 100 ml of blood i.e., over the legal limit.
[10] At 11:54 p.m., having arrested Mr. Findlater and provided him his rights to counsel and caution, Constable Fluit made a demand for sample of Mr. Findlater's breath pursuant to section 254(3) of the Criminal Code.
[11] Mr. Findlater was transported to the police station where he provided two suitable samples of his breath into an Intoxilyzer 8000C. Constable Janicus was the Breathalyzer technician. Both breath samples registered identical readings of 204 mg of alcohol per 100 mL of blood. It is these readings that the defence seeks to exclude.
[12] Constable Fluit testified that Fanshawe College was a 5 to 10 minute drive from the location of the stop. Based on this, and the five minutes that had elapsed since the stop, he determined that there would be no residual alcohol present in Mr. Findlater's mouth when the ASD sample was provided.
[13] In cross-examination, Constable Fluit expressed the view that he was required to wait 10 minutes from the time of last consumption for residual mouth-alcohol to dissipate. He agreed that the test taken within this period of time could produce a false positive or "fail".
[14] The Crown conceded that a 15 minute wait time was required to ensure that residual mouth alcohol had dissipated. Constable Fluit's understanding was clearly incorrect. This was also confirmed by the evidence of Constable Janicus, the qualified Breathalyzer technician.
[15] In any event, Constable Fluit had no evidence as to when Mr. Findlater last consumed alcohol.
[16] In cross-examination, it was put to Constable Fluit that he would not have had grounds to arrest Mr. Findlater, and make a subsequent demand for a sample of his breath, if he was in fact required to wait 15 minutes from the time of last consumption before administering the ASD. This was clearly based on the assumption that the arrest and subsequent demand were based solely on the "fail" registered on the ASD. Constable Fluit gave the following response:
A. Well, I had the admission of alcohol, I had red glassy eyes, I had an odour of alcohol… Then he blew a fail… All those, all those in totality then yes if I have, if I don't have all those factors involved then that would not allow me to arrest, but the amount of the grounds that I had, coupled together and put together, in my opinion led me to arrest him… Even if I made a mistake by being under the limit.
[17] While at the police station, Mr. Findlater told Constable Janicus that he started consuming alcohol that day at 5 p.m. and that his last drink was at 9 p.m., which took him one hour to consume. When asked how long he was driving prior to being stopped, he answered "10 minutes". These answers were in response to questions put to him by Constable Janicus as part of the Alcohol Influence Report. The defence conceded that the answers were voluntary.
Position of the Parties
[18] The defence submits there was no objectively reasonable basis for relying on the "fail" result on the ASD as justification for the arrest and subsequent breathalyzer demand in this case. The defence points to the officer's incorrect understanding that one is required to wait only 10 minutes, as opposed to 15 minutes, from the time of last consumption before administering the ASD. As a result, the defence says it is conceivable that the ASD was administered within a period of time that would have rendered the results unreliable.
[19] The defence submits that the officer's reliance on the ASD in these circumstances is objectively unreasonable and resulted in an unlawful search and seizure of the breath samples in this case.
[20] The defence submits that the seriousness of the breach and its impact should result in the exclusion of the breath readings.
[21] The Crown submits that at the time of administering the ASD, there was no actual evidence as to when Mr. Findlater had last consumed alcohol. The Crown says there is no obligation to question the suspect in this regard and that the mere possibility that a suspect consumed alcohol within 15 minutes does not preclude reliance on the "fail" result. Accordingly, the Crown says the officer's misapprehension was irrelevant and does not impact on whether his reliance on the ASD result was objectively reasonable.
[22] In the alternative, should this court find a breach of section 8 of the Charter, the Crown submits that the evidence should not be excluded under section 24(2). The Crown points to Mr. Findlater's subsequent statements at the police station as evidence that he finished his last drink at 10 p.m.; well before being stopped by the police, and not even close to within 15 minutes of the ASD demand.
Analysis
[23] In R. v. Mastromartino, Justice Durno reviews the Supreme Court of Canada decision in R. v. Bernshaw and the subsequent decision of the Ontario Court of Appeal in R. v. Einarson in arriving at the following principles related to ASD demands:
Officers making ASD demands must address their minds to whether or not they would be obtaining a reliable reading by administering the test without a brief delay.
If officers do not, or reasonably could not, rely on the accuracy of the test results, the results cannot assist in determining whether there are reasonable and probable grounds to arrest.
Officers making ASD demands may briefly delay administering the test if, in their opinion, there is credible evidence which causes them to doubt the accuracy of the test result unless the test was briefly delayed.
Officers are not required to wait before administering the test in every case where a driver may have been in a bar shortly before being stopped. The mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on the accuracy of the screening device.
Whether or not officers are required to wait before administering the screening test is determined on a case-by-case analysis, focusing on the officer's belief as to the accuracy of the test results if the tests were administered without delay, and the reasonableness of that belief.
The fact the driver is observed leaving a bar is a relevant circumstance in determining whether it was reasonable for the officer to delay the taking of the test in order to obtain an accurate sample. However, officers are not required to ask drivers when they last consumed alcohol.
If the officer decides to delay taking the sample and that delay is challenged at trial, the court must decide whether the officer honestly and reasonably felt that an appropriately short delay was necessary to obtain a reliable reading.
If the officer decides not to delay taking the sample and that decision is challenged at trial, the court must decide whether the officer honestly and reasonably believed that he could rely on the test result if the sample was taken without delay.
[24] At the time of making the ASD demand, the only evidence Constable Fluit had available to him was that Mr. Findlater had left the location from which he had been drinking 10 to 15 minutes earlier. He had no information as to when Mr. Findlater had last consumed alcohol. That information raised no more than the mere possibility that he could have consumed alcohol 10 to 15 minutes earlier.
[25] The mere possibility that Mr. Findlater could have consumed alcohol 10 to 15 minutes earlier does not, in my view, make it objectively unreasonable for officer to rely on the "fail" result in forming his belief that Mr. Findlater had been committing an offence under section 253 of the Code.
[26] A similar conclusion was reached in R. v. Notaro, 2018 ONCA 2537 where the officer knew that Mr. Notaro may have left a bar approximately ten minutes before taking the ASD test but had no information about when he had taken his last drink. As indicated by D. Paciocco J.A., "The information known to her raised no more than a mere possibility that Mr. Notaro could conceivably have consumed alcohol immediately before departing the bar. This mere possibility did not make it objectively unreasonable for her to rely on the ASD fail result to form the belief that Mr. Notaro had committed the offence."
[27] The Court in Notaro went on to emphasize at paragraph 6, that while a diligent officer will turn his or her mind to the possible presence of residual mouth-alcohol, a failure to do so is "not a self-standing Charter violation".
[28] In my view, it is irrelevant that the officer, having considered the issue of mouth-alcohol, was of the mistaken view that he had to wait 10 minutes after the time of last consumption before administering the ASD. It does not change the fact that he did not know when Mr. Findlater had consumed his last drink. It makes no sense to say that this mistake makes his reliance on the ASD any less objectively reasonable than would otherwise have been the case had he not consider the issue at all.
[29] As a result, I find it was objectively reasonable, and not a violation of section 8 of the Charter, for Constable Fluit to rely on the "fail" result on the ASD in forming his grounds to arrest Mr. Findlater and demand a sample of his breath pursuant to section 254(3) of the Code.
[30] Even if I am wrong in this regard, I would find that the breath readings are nevertheless admissible under section 24(2) of the Charter.
[31] In R. v. Grant, 2009 SCC 32, the Supreme Court set out the test for determining whether a Charter breach should result in the exclusion of evidence. This requires an assessment of the impact of admitting the evidence on public confidence in the administration of justice, having regard to the seriousness of the Charter infringing conduct, its impact on the Charter-protected interest and society's interest in adjudicating cases on their merits.
[32] With respect to the first Grant factor, the seriousness of the breach, I find that this favours the admissibility of the breath readings. The fact remains that Constable Fluit was under no obligation to consider the issue of residual mouth-alcohol in the absence of any evidence as to when alcohol was last consumed. If having done so incorrectly amounts to a breach, it could not, in my view, be said to have been done deliberately or in bad faith. In my view, the breach would best be described as a technical one.
[33] With respect to the second Grant factor, the impact of the breach on the Charter protected interest, this factor also favours the admissibility of the breath readings. As indicated in R. v. Jennings, 2018 ONCA 260, breath sample procedures are minimally intrusive.
[34] With respect to the third Grant factor, society's interest in an adjudication of the case on its merits, this factor also favours admission of the breath readings. In this regard, the reliability of the ASD result is underscored by Mr. Findlater's subsequent statements at the police station. In short, the statements establish that Mr. Findlater had not consumed alcohol for more than 1 ½ hours prior to the ASD demand.
Conclusion
[35] For all the above reasons, I find Mr. Findlater guilty of operating a motor vehicle with a blood alcohol level in excess of 80 milligrams of alcohol per 100 millilitres of blood, contrary to section 253(1)(b) of the Criminal Code of Canada.
Released: December 11, 2018
Signed: Justice G.L. Orsini