ONTARIO COURT OF JUSTICE

CITATION: R. v. Campbell, 2022 ONCJ 571

DATE: 2022 12 07

COURT FILE No.: Hamilton 21-2081

BETWEEN:

HIS MAJESTY THE KING

— AND —

CURTIS CAMPBELL

Before Justice J.P.P. Fiorucci

Heard on August 18 and 19, 2022

Reasons for Judgment released on December 7, 2022

V. McDougall....................................................................................... counsel for the Crown

R. Tsang ……………….…………………….counsel for the defendant Curtis Campbell

FIORUCCI J.:

INTRODUCTION

[1] On December 11, 2020, at approximately 7:40 p.m., the accused, Curtis Campbell, was driving at a very high rate of speed when he passed P.C. Matthew Raponi’s police cruiser. P.C. Raponi initiated a traffic stop at 7:47 p.m. At 7:53 p.m., the officer made a demand that the accused provide a sample of his breath into an approved screening device (ASD).

[2] The accused failed the ASD test at 7:55 p.m. and was arrested at 7:59 p.m. Subsequent breath testing at the police station revealed that the accused’s blood alcohol concentration within two hours after ceasing operation equalled or exceeded the legal limit. The accused was charged with the 80 and Over offence.

[3] The accused alleges violations of his s. 8 and s. 9 Charter rights and seeks exclusion of the breath readings. The accused submits that the officer lacked the reasonable suspicion necessary to make the ASD demand pursuant to s. 320.27(1)(b) of the Criminal Code. Although P.C. Raponi was in possession of an ASD in his cruiser when he conducted a lawful traffic stop, the officer did not make a mandatory alcohol screening demand under s. 320.27(2). Since there is no evidence that the officer turned his mind to the police power to make a mandatory demand under s. 320.27(2), the accused says that the Crown cannot rely on this subsection to validate the demand which was made without a reasonable suspicion.

[4] The trial proceeded as a blended voir dire and trial. I heard the evidence pertaining to the alleged Charter breaches blended with the evidence relating to the trial issues. If his Charter application to exclude the breath test results is unsuccessful, the accused concedes that a conviction for the offence of 80 and Over will follow since the Crown has established all of the requisite elements of that offence.

ANALYSIS

[5] The accused submits that P.C. Raponi lacked the reasonable suspicion necessary to make an ASD demand under s. 320.27(1)(b) of the Criminal Code which resulted in infringements of his s. 8 and s. 9 Charter rights.

[6] On December 18, 2018, all Criminal Code driving provisions were repealed and replaced with a new regime. The alcohol ASD demand on reasonable suspicion in s. 320.27(1)(b) essentially mirrors the test that existed in s. 254(2) of the previous legislation.[^1] The new legislative scheme added a mandatory alcohol screening demand in s. 320.27(2) which permits a peace officer, who is acting in the lawful execution of his or her duties and who has an ASD in his or her possession, to make an ASD breath demand of a person who is operating a motor vehicle.[^2] Section 320.27(2) does not require the officer to have any grounds.

[7] The accused takes no issue with the lawfulness of P.C. Raponi’s traffic stop of his vehicle. P.C. Raponi was, therefore, acting in the execution of his duties when he stopped the accused’s vehicle and engaged in the initial screening process which included speaking with the accused and his passenger and making other observations at the roadside.

[8] P.C. Raponi was in possession of an ASD when he conducted the traffic stop. He testified that he had an ASD in his cruiser on this shift because he was working in a rural area which was further away from the police station. Since he was engaged in the lawful execution of his duties, P.C. Raponi could have made a mandatory alcohol screening demand to the accused, pursuant to s. 320.27(2). However, P.C. Raponi’s testimony reveals that, instead, he made the ASD demand based on his suspicion that the accused had been drinking.

[9] I asked counsel to make submissions on the applicability of s. 320.27(2) in this case. Defence counsel argued that an officer must subjectively turn his mind to the police power to make a mandatory demand under s. 320.27(2) if the Crown seeks to justify the warrantless search under that subsection.[^3] Since there is no evidence that P.C. Raponi made the demand pursuant to his power to do so under s. 320.27(2), the Defence says that, if the officer lacked the reasonable suspicion necessary to make the demand under s. 320.27(1)(b), the Crown cannot rely on s. 320.27(2) to validate the ASD demand.

[10] The Crown submits that the objectively discernable facts in this case support P.C. Raponi’s subjective suspicion, which he articulated in his evidence at trial, that the accused had been drinking. Crown counsel went on to argue that s. 320.27(2) provides an independent basis to validate the ASD demand since P.C. Raponi was acting in the lawful execution of his duties and was in possession of an ASD, which the Crown says are the only prerequisites of a valid demand under s. 320.27(2).

[11] Having considered the evidence and the submissions of counsel, I find that it is unnecessary for me to resolve the issue of whether an officer must subjectively turn his mind to the police power to make a mandatory ASD demand under s. 320.27(2) for the Crown to rely on that subsection to meet its onus of establishing a reasonable search on a s. 8 Charter application. Based on my assessment of the objectively discernible facts, I find that P.C. Raponi made a valid ASD demand pursuant to s. 320.27(1)(b). I have decided the case on that basis.

[12] To lawfully make the ASD breath demand, pursuant to s. 320.27(1)(b), the officer must have "reasonable grounds to suspect" that the person has alcohol in their body and that the person has, within the preceding three hours, operated a conveyance.

[13] The authors of Impaired Driving and Other Criminal Code Driving Offences, A Practitioner’s Handbook note that “[t]he reasonable suspicion must be established on both a subjective and objective basis”.[^4] An officer’s testimony that he had an honestly held suspicion that the person had alcohol in his or her body satisfies the subjective standard, and “[t]he objective standard is satisfied when the Crown can point to factors that establish that this suspicion was reasonable”.[^5]

[14] The jurisprudence which interpreted the reasonable suspicion standard set out in the now repealed s. 254(2) is instructive and applicable to the reasonable suspicion required for a valid ASD demand pursuant to s. 320.27(1)(b) of the Criminal Code.

[15] The Supreme Court of Canada reviewed the reasonable suspicion standard in R. v. Chehil.[^6] Karakatsanis J., for the Court, noted that Parliament has employed the reasonable suspicion standard when authorizing certain searches in legislation, including s. 254(2) of the Criminal Code which authorized obtaining a breath sample to test for the presence of alcohol.[^7]

[16] Reasonable suspicion is a lower standard than reasonable and probable grounds, “as it engages the reasonable possibility, rather than probability, of crime.”[^8] Reasonable suspicion is “assessed against the totality of the circumstances”.[^9] This “inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation”.[^10] It “must be fact-based, flexible, and grounded in common sense and practical, everyday experience”.[^11]

[17] Karakatsanis J. cited American jurisprudence to explain when a constellation of factors is insufficient to establish a reasonable suspicion:

A constellation of factors will not be sufficient to ground reasonable suspicion where it amounts merely to a "generalized" suspicion because it "would include such a number of presumably innocent persons as to approach a subjectively administered, random basis" for a search: United States v. Gooding, 695 F.2d 78 (4th Circ. 1982), at p. 83. The American jurisprudence supports the need for a sufficiently particularized constellation of factors. See Reid v. Georgia, 448 U.S. 438 (1980), and Terry v. Ohio, 392 U.S. 1 (1968). Indeed, the reasonable suspicion standard is designed to avoid indiscriminate and discriminatory searches.[^12]

[18] It is important to recognize that “reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors.”[^13] However, Karakatsanis J. stated the following in Chehil:

Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors. The totality of the circumstances, including favourable and unfavourable factors, must be weighed in the course of arriving at any conclusion regarding reasonable suspicion. As Doherty J.A. found in R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743 (C.A.), at p. 751, "[t]he officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable". This is self-evident.[^14]

[19] While the police are obliged to take all factors into account, they are not required “to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations.”[^15]

[20] The after-the-fact review conducted by the court to protect against arbitrary state action was described by Karakatsanis J.:

Rigorous judicial scrutiny is an independent review that ensures that the suspicion relied on by the police is supported by factors that are objectively ascertainable, meaning that the suspicion is based on "factual elements which can be adduced in evidence and permit an independent judicial assessment": P. Sankoff and S. Perrault, "Suspicious Searches: What's so Reasonable About Them?" (1999), 24 C.R. (5th) 123, at p. 125. The constellation of facts must be based in the evidence, tied to the individual, and capable of supporting a logical inference of criminal behaviour. If the link between the constellation and criminality cannot be established by way of a logical inference, the Crown must lead evidence to connect the circumstances to criminality. This evidence may be empirical or statistical, or it may be based upon the investigating officer's training and experience.[^16]

[21] Karakatsanis J. cautioned that “[a] police officer's educated guess must not supplant the rigorous and independent scrutiny demanded by the reasonable suspicion standard.”[^17]

[22] At 7:40 p.m., P.C. Raponi was patrolling the area of Regional Road 97 and Highway 6 in Flamborough. The officer was stopped at a stop sign facing eastbound when he observed the accused’s vehicle going southbound “at a very high rate of speed”. P.C. Raponi testified that the accused’s vehicle stood out because there was moderate traffic and the accused’s vehicle was going much faster than the other vehicles.

[23] P.C. Raponi followed the accused’s vehicle, which turned eastbound onto Concession 10. The officer stated that he had to drive quite fast to catch up to the vehicle but did not feel that he was in a pursuit. P.C. Raponi did not make any observations about the accused’s driving other than the excessive rate of speed. P.C. Raponi initiated a traffic stop. The accused stopped his vehicle about three to five kilometres from the location where P.C. Raponi first observed the vehicle.

[24] After stopping the vehicle at approximately 7:47 p.m., P.C. Raponi entered the traffic stop into his cruiser’s computer system to create a call and ensured that the vehicle came back clear. For instance, he confirmed that the registered owner was not wanted or a suspended driver. P.C. Raponi then exited his cruiser and approached the driver’s side of the accused’s vehicle. Almost immediately, P.C. Raponi saw an open case of beer behind the driver’s seat which was in plain view. The case had about half of the cans missing. P.C. Raponi did not see any open cans of alcohol.[^18]

[25] P.C. Raponi observed two occupants in the vehicle; the accused, who was the driver, and a passenger who was seated in the front passenger seat. In cross-examination, Defence counsel suggested to P.C. Raponi that there was nothing noteworthy from his interaction with the accused at the driver’s side window when the accused gave the officer his driver’s licence. P.C. Raponi replied that, although there was nothing noteworthy regarding the driver’s licence, the accused was unable to find his insurance and handed the officer an invoice for car work instead. P.C. Raponi stated: “I thought that was odd at the time”.

[26] P.C. Raponi observed that the accused had a freshly lit cigarette. In addition to smelling the cigarette, P.C. Raponi detected an odour of alcohol coming from within the vehicle. In cross-examination, the following exchange occurred between Defence counsel and P.C. Raponi:

Q. Okay. You also testified to in-chief that you smelled the alcohol coming from within the vehicle, correct?

A. That’s correct.

Q. Neither set of your notes say that the smell of alcohol was coming from Mr. Campbell, is that correct?

A. That’s correct.

Q. You had two chances to note, in your written notes and also in your will-say statement, where the alcohol was coming from; why didn’t you note that?

A. It wasn’t noted because at that point I wasn’t sure. A small vehicle.

[27] In cross-examination, Defence counsel asked the officer why he recorded in his notes and will say that he had observed the half empty case of beer:

Q. You noted it in both sets of notes. Why was it important to note that?

A. I felt that it was important to note because the alcohol was in arm’s reach of the driver, that it was evidence that alcohol was accessible, and in connection with the odour of alcohol that drinking had happened.

[28] P.C. Raponi testified that the above observations led him to ask if any drinking had taken place. He believes that the accused said no. However, according to P.C. Raponi, “the passenger indicated that he had had several drinks after work, they were coming home from work, and that Mr. Campbell was the designated driver”.

[29] P.C. Raponi made no notes regarding the accused telling him that he and his passenger worked together. However, during cross-examination, P.C. Raponi testified that he recalled the accused telling him this during the initial traffic stop, when P.C. Raponi was asking about alcohol and drinking.

[30] In cross-examination, the following exchange occurred between Defence counsel and P.C. Raponi:

Q. So, let me ask you this; so, you see a half-empty case of beer in the backseat that the driver could reach onto, yet you don’t see any open cans. So, how does that assist you in believing that the driver may have consumed alcohol?

A. Well, the passenger had made an utterance to me that after work a few of their colleagues were drinking and Mr. Campbell was the designated driver. I noticed that there was a case of beer in the backseat that looked about half-empty and I had my suspicions that Mr. Campbell took part in the drinking.

[31] P.C. Raponi testified that, “at that point, I had reasonable suspicion that Mr. Campbell had been drinking so I advised that I would be making an ASD demand”. Defence counsel suggested to P.C. Raponi that he formed his reasonable suspicion after the passenger admitted to drinking since it was the notation he made in his will say immediately after he recorded the passenger’s admission to drinking. P.C. Raponi acknowledged that it was the next notation. He went on to say, “[b]ut as I said, the totality of all my observations”.

[32] P.C. Raponi’s testimony satisfies the subjective standard of reasonable suspicion.[^19] I find that P.C. Raponi was a credible and reliable witness. In fact, Defence counsel did not take issue with P.C. Raponi’s credibility or the reliability of his evidence, but rather argued that the officer’s observations belie a reasonable suspicion that the accused had alcohol in his body.

[33] Certain principles have emerged from the jurisprudence in this area. The odour of an alcoholic beverage on the driver’s breath is not a precondition to a valid ASD demand.[^20] An officer does not have to accept the accused’s denials regarding the consumption of alcohol.[^21] It is not necessary that an officer observe signs of impairment “to found a basis for making a roadside breath demand”.[^22] Nor is it necessary that a police officer suspect that the person is committing a crime.[^23] The officer’s suspicion “need not be the only conclusion available, and the presence of innocent possibilities does not negate the suspicion”.[^24]

[34] The constellation of facts that support the officer’s suspicion that the accused had alcohol in his body includes: i) the accused was driving at a very high rate of speed, going much faster than the other vehicles on the roadway at that time; ii) the odour of alcohol coming from within the small vehicle. In his submissions, Defence counsel made much of the fact that P.C. Raponi was not sure that the smell of alcohol was coming from the accused. The passenger’s admission that he consumed alcohol and the accused’s denial of consumption do not remove the smell of alcohol from the assessment of the totality of the circumstances. The smell of alcohol from the vehicle within which the accused was seated is one factor to be considered in assessing the reasonableness of P.C. Raponi’s suspicion that the accused had consumed alcohol; iii) the half empty case of beer that was located within reach of the accused contributed to the suspicion that the accused had consumed alcohol, notwithstanding his denial; iv) the passenger indicated that he had several drinks after work, that they (he and the accused) were coming home from work, and that the accused was the designated driver. I accept P.C. Raponi’s evidence that, based on his conversations with the accused and the passenger, he believed that the accused and the passenger worked together, and he suspected that the accused may have participated in the drinking. On the totality of the evidence, this was reasonable. Just as the officer was not required to believe the accused’s denial that he had consumed alcohol, the officer was not required to believe the passenger’s assertion that the accused was the designated driver; v) the accused was unable to find his insurance and handed the officer an invoice for car work instead, which P.C. Raponi found odd at the time; and vi) the accused was smoking a freshly lit cigarette when P.C. Raponi approached the vehicle which could be indicative of an attempt by the accused to mask the smell of alcohol on his breath.

[35] I find that an assessment of the objectively discernible facts establishes that P.C. Raponi’s suspicion that the accused had alcohol in his body was reasonable. Accordingly, the ASD demand was valid and there were no violations of sections 8 and 9 of the Charter.

[36] If I have erred in finding that the officer had the requisite reasonable suspicion to make the ASD demand pursuant to s. 320.27(1)(b), in the circumstances, even if the officer’s conduct amounted to a breach of the accused’s Charter rights, I would not have excluded the breath readings.

[37] The first prong of the Grant analysis requires an evaluation of the seriousness of the state conduct that led to the breach.[^25] In Grant, the Supreme Court of Canada held that “[t]he main concern is to preserve public confidence in the rule of law and its processes”.[^26] The touchstone of the analysis for this first inquiry of Grant is whether the admission of the evidence would bring the administration of justice into disrepute by sending a message that the courts “effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of the unlawful conduct”.[^27]

[38] The admission of evidence “obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute”.[^28] The court must dissociate itself from this serious state misconduct and must not “condone ignorance of Charter standards and a casual approach to the protection of Charter values”.[^29]

[39] In this case, P.C. Raponi had an ASD in his possession. Pursuant to s. 320.27(2), he did not require a reasonable suspicion to make the ASD demand. Once he had conducted the lawful stop of the accused’s vehicle, he could have made the mandatory alcohol screening demand. Instead, he conducted an initial screening process by speaking with the accused and his passenger and by making other observations which led him to make the ASD demand pursuant to s. 320.27(1)(b). This demand was made within the "forthwith window".[^30] As Jennis J. stated in R. v. Skuse, “[i]f the officer had fallen short of meeting the requisite standard, he did not fall short by very much and there was no bad faith on his part”.[^31]

[40] Furthermore, if I am in error in finding that the requisite reasonable suspicion existed for the ASD demand to be made pursuant to s. 320.27(1)(b), the existence of a statutory basis under s. 320.27(2) to make the demand without any grounds in these circumstances attenuates the seriousness of the Charter breach. The seriousness of the breach would be at the inadvertent or minor end of the spectrum. P.C. Raponi subjectively believed that he had grounds to make the ASD demand based on his suspicion that the accused had consumed alcohol and he acted on that belief. The officer’s conduct in this case would not bring the administration of justice into disrepute, requiring the court to dissociate itself from the fruits of the conduct. The first Grant factor favours admission of the breath readings.

[41] The second Grant factor addresses the impact of the breach on the interests of the accused. If P.C. Raponi made an ASD demand without the requisite reasonable suspicion, it would constitute an infringement of the accused’s s. 8 Charter rights.

[42] However, the administration of the breath sample procedure is minimally intrusive.[^32] In R. v. Jennings, the Ontario Court of Appeal rejected the R. v. Au-Yeung[^33] line of cases that held that the impact of roadside breaches is always amplified by the procedure faced by the accused after arrest, including “the initial detention,… being placed in the back of a police cruiser and transported to a police station, and detention at the police station for a substantial period of time”.[^34]

[43] In Mr. Campbell’s case, the impact of a s. 8 breach, founded on an ASD demand made without the requisite reasonable suspicion, would have been minimal, favouring admission of the breath samples.

[44] The third prong of the Grant analysis relates to society’s interest in the adjudication of the case on its merits.[^35] Breath samples are reliable and necessary evidence in an 80 and Over prosecution. The truth-seeking function of the criminal trial process would be undermined by an order excluding the breath readings. It would result in the Crown being unable to prove the allegation that the accused’s blood alcohol concentration exceeded the legal limit within two hours after ceasing to operate a conveyance.

[45] This Grant factor requires courts to “consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence”.[^36] As the Supreme Court of Canada stated in Grant, “the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution”.[^37] The breath samples are reliable evidence that is indispensable to the Crown’s case. This factor strongly favours admission of the evidence.

[46] Therefore, each of the Grant factors would weigh in favour of admission of the evidence if a Charter breach was found in this case.

CONCLUSION

[47] The accused’s Charter application is dismissed. I find Mr. Campbell guilty of the 80 and Over offence, contrary to s. 320.14(1)(b) of the Criminal Code.

Released: December 7, 2022

Signed: Justice J.P.P. Fiorucci

[^1]: Section 254(2) stated:

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol….in their body and that the person has, within the preceding three hours, operated a motor vehicle…..the peace officer may, by demand, require the person…..:

(b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

Section 320.27(1) states:

(1) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (b) in the case of alcohol or ….:

(b) to immediately provide the samples of breath that, in the peace officer's opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose.

[^2]: Section 320.27(2) reads:

(2) If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer's opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.

[^3]: In making this submission, Defence counsel relied on R. v. Caslake, 1998 CanLII 838 (SCC), [1998] S.C.J. No. 3 (S.C.C.).

[^4]: Impaired Driving and Other Criminal Code Driving Offences, Karen Jokinen and Peter Keen, Emond Montgomery Publications Limited, 2019, Toronto, ON, Chapter 16, p. 248.

[^5]: Ibid, at p. 248.

[^6]: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220.

[^7]: Ibid, at para. 23.

[^8]: Ibid, at para. 27.

[^9]: Ibid, at para. 29.

[^10]: Ibid, at para. 29.

[^11]: Ibid, at para. 29.

[^12]: Ibid, at para. 30.

[^13]: Ibid, at para. 32.

[^14]: Ibid, at para. 33.

[^15]: Ibid, at para. 34.

[^16]: Ibid, at para. 46.

[^17]: Ibid, at para. 47.

[^18]: P.C. Raponi testified: “….on the initial traffic stop I did not notice any open cans of alcohol. That wasn’t until after”. P.C. Raponi stated that he observed empty cans of beer on the passenger floor after Mr. Campbell was arrested. Therefore, the open cans of beer did not factor into P.C. Raponi’s decision to make the ASD demand.

[^19]: R. v. Eastmond, 2018 ONCJ 867; R. v. Bromfield, 2007 ONCJ 36; R. v. Hayward, 2013 NBPC 11.

[^20]: R. v. Zoravkovic, [1998] O.J. No. 2668 (Ont. C.A.); R. v. Singh, [2006] O.J. No. 5133 (Ont. S.C.J.).

[^21]: R. v. Carson, 2009 ONCA 157.

[^22]: R. v. Schouten, 2016 ONCA 872, at para. 26.

[^23]: Ibid, at para. 26.

[^24]: Impaired Driving and Other Criminal Code Driving Offences, Karen Jokinen and Peter Keen, Emond Montgomery Publications Limited, 2019, Toronto, ON, Chapter 16, p. 248; R. v. Mitchell, 2013 MBCA 44, at para. 21.

[^25]: R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32 (S.C.C), at para. 73.

[^26]: Ibid, at para. 73.

[^27]: Ibid, at para. 72.

[^28]: Ibid, at para. 74.

[^29]: R. v. Wong, 2015 ONCA 657, at para. 88.

[^30]: R. v. Quansah, 2012 ONCA 123, [2012] O.J. No. 779 (Ont. C.A.).

[^31]: R. v. Skuse, 2004 ONCJ 91, at para. 14.

[^32]: R. v. Jennings, 2018 ONCA 260, at paras. 27-32.

[^33]: R. v. Au-Yeung, 2010 ONSC 2292.

[^34]: R. v. Jennings, supra, at para. 27.

[^35]: R. v. Grant, supra, at para. 79.

[^36]: R. v. Grant, supra, at para. 79.

[^37]: R. v. Grant, supra, at para. 83.