Court Information

Court File No.: 18-10779 Date: September 6, 2019 Ontario Court of Justice

Between: Her Majesty the Queen — and — Kria Hinter

Before: Justice G. L. Orsini

Heard: July 26, 2019

Reasons for Judgment Released: September 6, 2019

Counsel

Ms. H. Palin — counsel for the Crown

Mr. B. Daley — counsel for the defendant Kria Hinter

Judgment

ORSINI J.:

Introduction

[1] On September 22, 2018, Kria Hinter was charged with impaired driving and operating a motor vehicle with a blood-alcohol concentration in excess of the allowable limit.

[2] The trial took place on July 26, 2019, after the enactment of amendments to the Criminal Code which had the effect of replacing the regime as it related to drinking and driving offences in force at the time the charges arose.

[3] Accordingly, as it relates to the over 80 charge, this is one of those transitional cases in which the defence urges the court to make the following findings:

(i) that the Crown can no longer rely on the now repealed provisions relating to the presumption of identity and has therefore failed to prove the defendant's blood-alcohol concentration at the time of driving; and

(ii) that the Crown has failed to prove one of the pre-conditions set out in section 320.31(1) of the Code necessary for reliance on the presumption of accuracy.

[4] In the alternative, the defence also filed an application seeking the exclusion of the breath readings based on alleged violations of the defendant's rights under sections 8 and 10(b) of the Charter. By agreement, the Charter application and the trial proceeded on a blended basis.

[5] With respect to the impaired driving charge, the defence submits that the evidence falls short of proof beyond a reasonable doubt.

Evidence

Constable Porter

[6] At approximately 11 pm on September 22, 2018, Constable Porter, who was operating a fully marked police cruiser, observed a vehicle being operated by the defendant as it made a wide left hand turn from Dixie Road onto Second Street. The vehicle ended up crossing over into the driveway entrance to a housing complex on the opposite side of Second Street. It had to reverse back onto Second Street in order to complete its turn. Constable Porter described it as a three-point turn.

[7] Thereafter, Constable Porter began following the defendant's vehicle as it made its way towards the intersection of Second Street and Oxford Street. The vehicle's left turn indicator came on as it proceeded into the left turn lane. It then moved back into the right curb lane before coming to a stop at the intersection. Its left-turn indicator was still flashing. When the light at the intersection turned green, the vehicle turned left onto Oxford Street from the right curb lane of Second Street.

[8] Due to the driving behaviour, Constable Porter attempted to pull the vehicle over. He did so by activating the emergency roof lights on his cruiser as he turned left onto Oxford Street. He was immediately behind the defendant's vehicle.

[9] The defendant did not immediately pull over. As a result, after following directly behind the vehicle for approximately one block with the cruiser lights on, Constable Porter activated the siren on his cruiser. He continued to follow the vehicle for several blocks with his cruiser lights and siren activated.

[10] Again, the vehicle did not pull over. As a result, Constable Porter decided to pull up beside the defendant's vehicle. He agreed that he and the defendant locked eyes and that the defendant then pulled over at the intersection of Oxford Street and Highbury Avenue. Constable Porter positioned his vehicle in front of the defendant's vehicle in order to prevent it from proceeding any further. Constable Hadgembes, who was in the immediate area and had observed the interaction between Constable Porter's vehicle and that of the defendant, positioned his vehicle immediately behind the defendant's vehicle.

[11] Both officers approached the driver's side of the vehicle to speak with the defendant. There was a second female seated in the front passenger seat.

[12] Constable Porter asked the defendant why she didn't stop her motor vehicle. He testified he believed there was a response but did not know what that response was. It is unclear from his evidence whether he didn't understand the response when it was made or could not now remember the response given the passage of time.

[13] Constable Porter detected an extremely strong presence of alcohol coming from both inside the vehicle and specifically from the defendant. Based on the odour of alcohol and previously described driving behaviour, he formed the belief that the defendant's ability to operate the motor vehicle was impaired by the consumption of alcohol. He asked her to step out of the vehicle in order to arrest her.

[14] At 11:03 pm, the defendant exited the vehicle as requested and was immediately placed under arrest for the offence of impaired driving.

[15] Constable Porter acknowledged that he did not provide the defendant her rights to counsel until 11:08 pm. In the intervening time, he performed the following tasks:

(i) he searched the defendant and placed her into the rear of his police cruiser;

(ii) he spoke to the passenger in order to obtain the identity of the defendant including her driver's license;

(iii) he notified dispatch that he had stopped a vehicle with another officer and the "type of occurrence we required" and that he needed a breathalyser technician to attend cells in anticipation of the defendant's arrival at the police station.

[16] In cross-examination, Constable Porter confirmed that his training taught him to provide rights to counsel as soon as practicable. He indicated that he generally reads rights to counsel "forthwith, as soon as is practicable". When it was put to him that the law requires rights to counsel be provided immediately upon arrest, absent some kind of safety concern, he indicated, "I haven't had those exact words put that exact way. I can't recall."

[17] Constable Porter then provided the defendant with a breath demand pursuant to section 254 of the Criminal Code. The defence takes no issue with the wording of the demand. Instead, the defence submits that the officer lacked the necessary reasonable and probable grounds to believe that the defendant had committed the offense of impaired driving.

Constable Hadgembes

[18] Constable Hadgembes testified as to his observations while standing with Constable Porter at the driver side door of the defendant's vehicle.

[19] He indicated that the defendant appeared to be nonchalant about what was happening. He smelled an odour of alcohol coming from her breath and said that when she exited her vehicle she was unsteady on her feet and her speech was laboured - that she was slurring words. He also indicated that her eyes seemed "pretty glassy" and "seemed to be kind of rolling around as she spoke".

[20] Constable Hadgembes testified that Constable Porter was engaged in conversation with the defendant and her passenger regarding the defendant's identification. In contrast to the evidence of Constable Porter, he indicated this occurred prior to the defendant's arrest.

[21] In cross-examination, the officer agreed that he could provide no details with respect to slurred speech or unsteadiness and that he was testifying as to his "general impressions" in this regard. He specifically acknowledged that the defendant didn't stumble or require assistance in getting out of her vehicle. He said his general impression was that "she didn't look comfortable standing or exiting".

Constable Loizides

[22] Following her arrest, the defendant was transported to the London Police Station where she was introduced to Constable Loizides, a qualified breathalyzer technician. The defence conceded the officer's qualifications in this regard.

[23] Constable Loizides testified that the defendant had an odour of an alcoholic beverage on her breath and her eyes appeared watery and glassy. He indicated that her face was normal, that he detected no slurring or hesitation in her speech and that she responded appropriately to questions put to her. He described her speech as good.

[24] As indicated by the Certificate of a Qualified Technician filed as an exhibit in these proceedings, the defendant provided two samples of her breath into an approved instrument which registered readings of 170 and 160 mg of alcohol in 100 mL of blood.

[25] Constable Loizides testified that the approved instrument was in proper working order. He based this conclusion on the internal workings of the instrument and the various checks employed by it. This included a system calibration check which ensures that the machine is taking accurate results by measuring a sample of an alcohol standard solution suitable for use within the instrument.

[26] Constable Loizides indicated that the Certificate of an Analyst, also filed as an exhibit in these proceedings, formed the basis for his belief that the alcohol standard solution was suitable for use within the instrument. He believed the machine was properly calibrated because the standard solution produced a result that was within 10% of the alcohol standard solution's concentration of 100 mg of alcohol in 100 mL of solution.

[27] In cross-examination, the officer agreed that the analyst's certificate makes no reference to the concentration of alcohol in the alcohol standard solution. He did indicate however his belief that the analyst's certificate ensures that the solution being put into the machine meets the above-noted parameters - that it is calibrated at 100 mg of alcohol in 100 mL of solution.

[28] The officer also provided a sample of his own breath into the approved instrument which produced a reading of 0 mg of alcohol per 100 mL of blood. This matched the officer's expectation and further confirmed his belief that the machine was in proper working order.

Analysis

The Impaired Driving Charge

[29] While the Crown need only prove the defendant's ability to operate a motor vehicle was slightly impaired by the consumption of alcohol, it must nevertheless prove its case beyond a reasonable doubt. Accordingly, evidence of slight impairment should not be confused with slight evidence of impairment. In this regard, the Court must consider the evidence as a whole in determining whether the Crown has proven the required degree of impairment beyond a reasonable doubt.

[30] Having reviewed the evidence in its entirety, I am not satisfied beyond a reasonable doubt that the defendant's ability to operate a motor vehicle was slightly impaired by the consumption of alcohol.

[31] While there is evidence of bad driving and a strong odour of alcohol on the breath of the defendant, there is conflicting evidence with respect to other observations made at the time of the defendant's arrest. Constable Porter noted that the defendant did not slur her words and had no difficulty walking. This was in contrast to the evidence of Constable Hadgembes who testified as to a "general impression" that the defendant was slurring her speech and was unsteady on her feet. In addition, there is no evidence as to the defendant's motor skills or any difficulty following the direction of the arresting officer.

[32] With respect to the driving evidence, I note that apart from failing to pull over in a timely fashion, there is no evidence of bad driving once the defendant's vehicle turned onto Oxford Street. In addition, there is evidence that the defendant provided an explanation to Constable Porter for not immediately pulling over. The court is unable to determine the reasonableness of that explanation given the absence of any evidence as to what that explanation was. In this context, given the absence of evidence, I am unable to conclude that the failure to stop was a consequence of impairment.

[33] As a result, the defendant will be found not guilty on the charge of impaired driving.

The Over 80 Charge

(i) The Presumption of Identity

[34] I find that the presumption of identity in the former s. 258 of the Criminal Code applies to allegations that pre-date the amendments thereto. In this regard, I adopt the reasoning of Justice Duncan in R. v. Chuk as well as that of Justice Latimer in R. v. McAlorum.

(ii) The Presumption of Accuracy

[35] By virtue of the transitional provisions contained in Bill C-46, the presumption of accuracy in section 320.31(1) of the Code apply to cases that predate the enactment of that section.

[36] To satisfy the presumption, subsection (a) provides, among other things, that the qualified technician conduct a system calibration check, the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst.

[37] I agree with the decisions of Justice Parry in R. v. Flores-Vigil and Justice Duncan in R. v. Chuk that the word "calibrate" means to test or adjust a tool or instrument against a known standard and that a calibration check that yields a certain result is meaningless unless the value of the standard is known.

[38] I also adopt the reasoning of Justice Duncan in Chuk that the Crown may establish the preconditions necessary for reliance on the presumption of accuracy by viva voce evidence, including hearsay based on "learned knowledge".

[39] In this case, Constable Loizides ultimately testified as to his reliance on the analyst's certificate for his belief that the alcohol standard solution was calibrated at 100 mg of alcohol per 100 mL of solution. He testified to his understanding that the analyst's certificate ensures that the solution meets these parameters.

[40] While the officer did not expressly state the basis for his understanding, he was clearly giving technical evidence throughout, based on the training and experience he had received as a qualified breathalyzer technician. His qualifications had been conceded by the defence at the outset. I am satisfied that his evidence with respect to the calibration of the alcohol standard solution was based on learned knowledge and satisfies requirements of 320.31(1)(a).

(iii) The Charter Application

Section 8 – The Breathalyzer Demand

[41] Section 8 of the Charter provides that everyone has the right to be free from unreasonable search and seizure. The Crown bears the burden of showing, on a balance of probabilities, that the warrantless seizure of the defendant's breath was reasonable.

[42] The defence submits that the seizure of the defendant's breath was unreasonable because the officer did not have the requisite reasonable grounds to believe that the defendant's ability to operate a motor vehicle was impaired by alcohol - that the search was not reasonable because it did not comply with the requirements of section 254(3) of the Code pursuant to which the demand was made.

[43] No issue was taken that the officer subjectively believed the defendant had committed the offense of impaired driving. However, the defence submits that the officer's subjective belief was not objectively reasonable in the circumstances.

[44] "Reasonable grounds" is not to be confused with "with more likely than not" or a "51% probability". It does equate with a "reasonably based probability" which is something less than the prima facie case. It has been said that the test is not an onerous one and that the facts underlying the officer's belief in reasonable grounds need not be overwhelming.

[45] The objective component involves an assessment of whether a reasonable person placed in the position of the officer would conclude that there were indeed reasonable grounds.

[46] In this case, Constable Porter based his grounds for arrest on a combination of the observed driving behaviour and an extremely strong odour of alcohol on the defendant's breath. In my view, this evidence satisfies the objective component. Having reviewed all of the evidence, I find that a reasonable person placed in the position of Constable Porter would conclude that there were indeed reasonable grounds to believe that the defendant had committed the offense of impaired driving even though that evidence, as discussed above, does not amount to proof beyond a reasonable doubt.

[47] Accordingly, I find that there was no breach of the defendant's rights under section 8 of the Charter.

Section 10(b) of the Charter

[48] Section 10(b) of the Charter provides an arrestee the right to retain and instruct counsel without delay and to be informed of that right.

[49] The words "without delay" mean that officers have an obligation to inform the detainee of their right to counsel "immediately", subject to concerns for officer or public safety or reasonable limitations prescribed by law or otherwise justified under section 1 of the Charter.

[50] I find it was reasonable for Constable Porter to delay providing rights to counsel until the defendant was removed from the roadway. He had legitimate safety concerns given their position on a roadway at a busy intersection at the time of the night in question.

[51] Thereafter, however, the officer had an obligation to provide the defendant with her rights to counsel immediately. This, I find, he did not do. While the delay caused by the officer contacting dispatch may have been brief, there is simply no explanation for why the officer could not have provided rights to counsel prior to this time. If anything, the officer was of the mistaken belief that he could delay providing rights to counsel provided they were given "as soon as practicable". He was certainly not familiar with the concept of providing rights to counsel immediately as outlined by the Supreme Court more than 10 years ago.

[52] In all the circumstances, I find that the defendant's rights under section 10(b) were breached.

Section 24(2) of the Charter

[53] The question remains as to whether the breath readings should be excluded from the trial process. 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.

[54] I find the seriousness of the breach in this case to be in the moderate range. While it was neither prolonged nor deliberate, it cannot be said to have been done in good faith.

[55] Officers should know that such rights are to be provided immediately, subject to the above-noted exceptions. There is no excuse for the belief that "without delay" means "as soon as practicable" or whenever the officer feels it is most convenient. In my view, this factor favours excluding the breath readings.

[56] I find that the breach had virtually no impact on the defendant and that this factor favours admission of the breath readings. No questioning occurred during the approximately five-minute delay and there is no evidence of any utterances being made during this time. There is no evidence that the delay impacted defendant in deciding whether to speak to counsel or whom she should speak to.

[57] The third factor to be considered is society's interest in the adjudication of the case on its merits. Breath readings are reliable evidence and excluding them would effectively "gut" the Crown's case. The truth seeking function of a trial would be seriously undermined. This factor favors admission of the breath readings.

[58] I am mindful of the growing list of cases where a section 10(b) Charter violation has resulted in the exclusion of breath readings and where courts have distinguished the result in R. v. Jennings on the basis that it involved a less serious s. 8 Charter violation. I am also mindful that each case is dependent on its own facts and that not all 10(b) Charter violations are alike.

[59] Many of the 10(b) Charter cases resulting in exclusion of breath readings involved a violation of the right to counsel of choice, where the impact on the Charter protected interest was more significant than is the case here.

[60] There is no evidence in this case of a systemic problem in providing rights to counsel by local police services. This is not a case where the defendant was deprived of her right to counsel of choice. The delay in providing rights to counsel had no impact on her ability to obtain legal advice prior to providing her breath samples.

[61] Given the reliability of the breath readings, and the public's interest in adjudicating impaired driving cases on their merits, I find that the admission of the breath readings would not bring the administration of justice into disrepute.

Conclusion

[62] For all the above reasons, I find the defendant guilty of operating a motor vehicle with a blood alcohol level in excess of 80 milligrams of alcohol per 100 milliliters of blood, contrary to section 253(1)(b) of the Criminal Code of Canada.

Released: September 6, 2019

Signed: Justice G. L. Orsini