Court File and Parties
DATE: 2023·06·20 COURT FILE No.: 19-45004375 ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
ANTHONY FANONE
Before: Justice David Porter
Heard on: November 4, December 2 and 5, 2022 and January 9 and March 27, 2023
Reasons for Judgment
Released on: June 20, 2023
Counsel: K. Nedelkopoulos / C. Chapin..................................................................................... for the Crown P. Genua................................................................................................................... for the Accused
Porter J.:
Overview
[1] Anthony Fanone (“Mr. Fanone”) is charged that on October 19, 2019 he operated a conveyance while impaired to any degree by alcohol or a drug, or both, contrary to section 320.14(1)(a) of the Criminal Code, and that on the same day, within two hours after ceasing to operate the conveyance, he had a blood alcohol concentration equal to or greater than 80 mg of alcohol in 100 ml of blood contrary to section 320.14(1)(b) of the Criminal Code.
[2] The main issue in this case is the use of a single breath sample, analyzed by an Intoxilyzer 8000 C, as a “rule-out test”, administered by a qualified technician as one of the steps in a DRE examination into alleged impairment by drugs. The Crown submits that the single sample was lawfully obtained as a legitimate screening sample, pursuant to s.320.28(3) of the Criminal Code. The defence asserts that the requirement that Mr. Fanone provide the sample is not founded in law and was therefore an unlawful search.
[3] The defence alleges breaches of ss.8 and 10(b) of the Charter and seeks the exclusion of breathalyzer results obtained by the police based on the “rule-out” sample. The trial proceeded as a blended voir dire.
The Factual Background to the Alleged Charter Breaches
[4] Mr. Fanone’s driving came to the attention of the police at 2:15 a.m. on October 19, 2019 when the truck he was driving southbound on Keele Street was seen by police officers to have sparks flying from the passenger side right front tire. The truck was observed by Police Constable Duran driving southbound on Keele Street, when it turned right to the west on to Murray Ross Parkway. PC Duran’s partner, PC Febbo, activated the lights on their marked police car and drove to where the truck had stopped on the north side of Murray Ross Parkway. PC Febbo testified and acknowledged that the truck turned right on to Murray Ross Parkway, and stopped, before he activated the police car lights.
[5] Shortly after the truck stopped, a passenger was seen leaving the passenger side of the truck, and, as confirmed on the in-car video, was observed leaning over the back of the pickup truck and placing something in the back of the truck at about 2:16 a.m.
[6] In the course of the investigation at about 2:36 a.m., PC Duran located an upright three-quarters full bottle of Bacardi white rum in the back open area of the pickup truck in the area where he had observed the passenger placing something after the truck was stopped. PC Duran testified that the bottle was upright, and expressed the common-sense opinion that it could not have remained upright while the truck was being driven, supporting an inference that this bottle had been placed in the back of the truck by the passenger shortly after the truck stopped. Photographs of the bottle showed it was a 1.75 l bottle labelled as being of 40% alcohol Bacardi rum.
[7] PC Duran made a note of the damage to the truck. He saw that the back wheel on the passenger side of the truck had a flat tire, and the front passenger side wheel was on a rim without a tire. He subsequently observed a dent at the front passenger side of the truck.
[8] The driver of the truck, identified as Mr. Fanone, got out of the truck and PC Duran asked him if everyone was okay, and he indicated that he was. He told PC Duran that the damage to the truck had occurred when he was cut off by another motor vehicle. PC Duran noted an odour of cologne and noted that Mr. Fanone was unsteady on his feet. He described Mr. Fanone as swaying.
[9] PC Febbo, an officer in his first week with the TPS, testified that when he spoke to Mr. Fanone with PC Duran, he observed that Mr. Fanone was unsteady on his feet with glossy eyes. He stated he smelled cigarette smoke and cologne emanating from the driver. He testified that Mr. Fanone appeared somewhat disoriented, although he acknowledged that he had no note to this effect. He testified that Mr. Fanone at times was swaying and at times he stood normally. He acknowledged that Mr. Fanone was not stumbling.
[10] PC Febbo acknowledged that before he and PC Duran spoke to Mr. Fanone, he had left the truck and walked to the passenger side to inspect the damage to the passenger side of the truck. PC Febbo acknowledged that it appeared that Mr. Fanone was looking at the passenger side to see what had happened to the truck. PC Febbo testified that Mr. Fanone had no trouble walking and that he answered the police officer’s questions coherently. He testified that when he made the demand for the ownership, licence, and insurance Mr. Fanone had no difficulty providing these documents. Mr. Fanone also had no trouble understanding the officer’s request.
[11] PC Duran asked Mr. Fanone if he had anything to drink, and he said “no” but, as confirmed on the in-car camera audio played in the course of the trial, Mr. Fanone indicated that he had smoked something 1 to 1½ hours ago, and told PC Duran that what he smoked was “weed - nothing complicated.”
[12] At 2:29 a.m., PC Duran arrested Mr. Fanone for impaired operation of a motor vehicle by drug and at 2:30 a.m. read the Drug Recognition Expert (“DRE”) demand.
[13] At 2:31 a.m., PC Duran read Mr. Fanone his rights to counsel and asked him if he wished to call a lawyer now to which he responded “I don’t have the number now it is in the truck.” PC Duran indicated that they could get Mr. Fanone’s phone and he could call from the station.
[14] The standard caution was read to Mr. Fanone at 2:32 a.m. and PC Duran advised him that his truck would be impounded at 2:32 a.m.
[15] It was at this point the PC Duran left his police car and looked in the back of the pickup truck and located the Bacardi rum bottle as previously described at 2:36 a.m.
[16] PC Duran then located Mr. Fanone’s cell phone in the front of the truck, to provide to Mr. Fanone to access his contact information at the station. At 2:38 a.m., PC Duran requested the closest DRE location on his police radio and he was advised to attend Traffic Services which is located at 9 Hannah Street near the Exhibition grounds in Toronto.
[17] At approximately 2:40 a.m., he went to the front of the truck to obtain Mr. Fanone’s cell phone from the truck and smelled a strong order of cologne in the truck. He noticed liquid on the truck console and the entire truck had a strong order of cologne. PC Duran testified that it appeared to have been sprayed recently.
[18] At approximately 2:50 a.m., he left with Mr. Fanone to attend at Traffic Services and arrived at Traffic Services at 3:21 a.m.
[19] PC Duran remained with Mr. Fanone in the sallyport of Traffic Services as they were delayed in entering the station as a result of a computer problem at the police station. At 3:45 a.m., Mr. Fanone was paraded before the Staff Sergeant on duty, and a Level II search was requested, which consisted of a frisk search for the purpose of removing any weapons or other items which might compromise his safety or officer safety.
[20] At 4:05 a.m., Mr. Fanone was placed in an interview room. He had advised the police that his counsel of choice for the purpose of exercising his rights to counsel was Paul Genua. At 4:09 a.m., PC Duran placed a call to the telephone number of Mr. Genua’s office and received a voicemail giving the cell number of Mr. Genua. He called the cell number and left a voicemail message at 4:10 a.m. At 4:12 a.m., Mr. Genua called PC Duran who transferred the call to the private phone booth provided for Mr. Fanone to consult with counsel in private. The telephone conversation between Mr. Fanone and Mr. Genua ended at 4:19 a.m. and Mr. Fanone was placed in an interview room.
[21] During the parade and booking process, PC Duran could smell an odour of alcohol from Mr. Fanone. PC Duran testified that he advised the Drug Recognition Expert PC Mayer # 11621 that he could now smell an odour of alcohol from Mr. Fanone. P.C. Mayer was the Drug Recognition Expert who was dispatched to Traffic Services to conduct a DRE examination on Mr. Fanone. He testified that he smelled a “moderate odour of liquor” on Mr. Fanone’s breath when standing 3-4 feet away from Mr. Fanone at Traffic Services. PC Febbo testified that he stood beside Mr. Fanone in the booking hall and noticed a very strong odour of alcohol on Mr. Fanone’s breath.
[22] PC Mayer testified that he received his qualifications as a drug recognition expert in November 2017 when he was employed by the Edmonton Police Service. The certification requirements in Ontario, established by the OPP, are the same as the RCMP standards which were applied to his certification in Alberta. The defence conceded his expertise as a Drug Recognition Expert. He testified that the standards for the conduct of drug recognition examinations, and the requirements for certification as a drug recognition expert, were established by the International Association of Chiefs of Police and are uniform throughout many countries.
[23] In Canada, the training program to obtain certification as a drug recognition expert was conducted by the RCMP when he was trained in Alberta, and when he joined the Toronto Police Service, his qualifications as a drug recognition expert were accepted by the Toronto Police Service.
The “Rule-Out Test”
[24] PC Mayer testified that whenever an accused is under arrest for impaired operation of a motor vehicle by drugs, and during the interview portion of the drug recognition test an odour of alcohol is detected, the test protocol established by the International Association of Chiefs of Police requires that a demand be made of the accused to provide a sample of his breath, which is analyzed by an approved instrument, to rule out whether or not the cause of any impairment is alcohol, rather than the other drugs to be assessed in the drug recognition examination. In summary, if a drug recognition expert conducting a test for impairment by drug comes to believe that alcohol may be the cause of impairment, a breath sample must be taken by a qualified technician and analyzed using an approved instrument and this is known as the alcohol “rule-out test”.
[25] According to PC Mayer, the practice in relation to the rule-out test, in his experience, is to make a demand identical to the demand used to require an accused to provide two samples of his breath into an approved instrument, for the purpose of generating breathalyzer results which are admissible in evidence at trial (“the Approved Instrument Demand”). PC Mayer testified that he was trained to use the Approved Instrument Demand to obtain the rule-out sample. He testified that s.320.28(3) of the Criminal Code was the statutory authority for obtaining the rule-out sample.
[26] According to PC Mayer, after making the Approved Instrument Demand, the alcohol rule-out test is conducted by a qualified technician using an “approved instrument”, the same instrument used to obtain breathalyzer results admissible in a criminal trial.
[27] According to PC Mayer, the proper practice for conducting the rule-out test is to make the Approved Instrument Demand, have the qualified technician conduct the test, and if the result of the single test using the approved instrument shows a blood alcohol concentration of 80 mg of alcohol in 100 ml of blood, or more, then the examination of the accused for suspected impairment by drugs is abandoned, and the potential impairment by alcohol becomes the focus of the investigation.
[28] According to PC Mayer, if the reading in the rule-out test is 80 mg of alcohol in 100 ml of blood, or more, the accused will be arrested for impaired operation of a conveyance by alcohol. The accused should then be provided with an opportunity to consult with counsel in relation to this new charge, after which, according to PC Mayer, the proper procedure is to make a second demand that the accused provide suitable samples of his breath for a determination of the concentration of alcohol in his blood by the qualified technician using an approved instrument. Thereafter the breathalyzer samples are taken by the qualified technician in the ordinary course, generating potentially admissible breathalyzer results for the purposes of the trial.
[29] In this case, PC Mayer having detected a moderate odour of alcohol on the breath of Mr. Fanone, and PC Duran having also noted an odour of alcohol on the breath of Mr. Fanone, PC Mayer advised that he would have a “rule-out” test conducted by the breath technician PC Perez #10733. PC Mayer did not conduct the rule-out test himself, as he had transferred from the Edmonton Police Service to the Toronto Police Service only four months before the events in this case, and had not yet received his qualifications in Ontario as a qualified technician.
The Conduct of the Rule-Out Test
[30] At 4:25 a.m., Mr. Fanone was taken to the breath room by PC Duran and the Approved Instrument Demand was read to Mr. Fanone from the back of PC Duran’s memo book. He testified that the demand that he read stated “I demand that you provide suitable samples of your breath into an approved instrument to enable an analysis to be made to determine the concentration, if any, of alcohol in your blood and that you accompany me now for this this purpose. Do you understand?” PC Duran indicated that Mr. Fanone understood the demand.
[31] The evidence was clear that, between 4:25 when the demand was made, and 4:35 when the rule-out breath sample was taken, Mr. Fanone was not given a second opportunity to consult with counsel. PC Duran testified that Mr. Fanone provided a sample of breath. PC Perez conducted the rule-out test and advised PC Duran that Mr. Fanone had failed. PC Perez told Mr. Fanone that he would be brought back for more breathalyzer tests.
[32] At 4:35 a.m., PC Duran advised Mr. Fanone that he was under arrest for impaired operation of a motor vehicle by alcohol and he was given his rights to counsel.
[33] At 4:36 a.m., PC Duran called by telephone to Mr. Genua, and advised Mr. Genua of the new charge of impaired driving by alcohol, and at 4:37 a.m., the phone was transferred to the private booth where Mr. Fanone spoke to Mr. Genua once again.
[34] After the demand read to Mr. Fanone at 4:25 a.m., prior to the rule-out test, no subsequent or repeated demand was made before the breath samples were obtained by the qualified technician PC Perez.
[35] At 4:45 a.m., Mr. Fanone was placed in the breath tech room, and at 4:50 a.m., he provided his first breath sample of .141, well over the legal limit of .08. At 4:51 a.m., Mr. Fanone was placed in room four to await the second breath test, and at 5:11 a.m. returned to the breath room and provided his second sample of breath at 5:13 a.m. which resulted in a reading of .143.
[36] Mr. Fanone received the results of these breath tests from the breath technician and was advised of an additional charge of having a blood alcohol concentration equal to or greater than 80 mg of alcohol in 100 ml of blood within two hours of ceasing to operate a motor vehicle. He was served with the documentation related to the breathalyzer results and released from the station at 7:52 a.m.
The Evidence of PC Perez
[37] In October 2019, PC Perez had been a qualified breath technician for approximately five years. He testified that he had done a “rule-out” test a few times prior to the one he did in this case. He testified he has done a rule-out test a few times since 2019.
[38] He testified that when he completed his training to become a qualified breath technician in May 2014 at the Centre of Forensic Sciences, he received instruction on the conduct of rule-out tests. In addition, he received written materials on the rule-out test as part of the training for qualified breath technicians. In that training, they were instructed to use the Intoxilyzer 8000C for the rule-out test.
[39] PC Perez explained that when the rule-out test is conducted, only one sample is taken, accordingly the sequence for a second sample, which is automatically generated by the Intoxilyzer 8000C, is aborted.
[40] PC Perez testified that the demand that is required to obtain a rule-out sample is the DRE demand. He testified that the rule-out sample is part of the DRE assessment, and accordingly the conduct of the rule-out sample is initiated by the DRE demand.
[41] In the circumstances of this case, he conducted the rule-out sample by having Mr. Fanone provide a single sample of his breath into the Intoxilyzer 8000C. He obtained a reading of 153 mg of alcohol in 100 ml of blood at 4:33 a.m. Based on the results of the sample, he advised PC Duran that there was alcohol present and accordingly, Mr. Fanone should be arrested for impaired by alcohol. He told Mr. Fanone before he left the breath tech room that he would be brought back for further breathalyzer tests.
[42] PC Duran arrested Mr. Fanone for the offence of impaired by alcohol at 4:35 a.m.
[43] PC Perez had a different understanding than PC Mayer on the way in which the results of the rule out-test were assessed. It was his evidence that there was no specific threshold for a conclusion that the investigation should continue as an investigation into impaired by alcohol rather than drug, and it was an exercise of judgment in each case based on the readings and the observation of the accused whether, based on the rule-out test, the cause of impairment was drugs or alcohol. He testified that in this case the reading of 153 mg of alcohol in 100 ml of blood in the rule-out test made it clear that the cause of the impairment observed in Mr. Fanone was alcohol rather than a drug and the investigation continued on that basis.
[44] He testified that based on the results of the rule-out test the breath demand should be made by the officer-in-charge to initiate the taking of 2 samples of breath in the Intoxilyzer 8000C to obtain admissible evidence of the blood alcohol content (“BAC”) of the accused in the investigation.
[45] PC Perez subsequently conducted the breathalyzer tests obtaining a reading of 141 and 4:50 a.m. and 143 at 5:13 a.m. recording truncated readings of 140 mg of alcohol in 100 ml of blood as the two results of the breathalyzer tests in this case.
The Legal Framework of the DRE Investigation of Impairment by Drugs or Drugs and Alcohol
[46] The legal framework for the drug recognition expert’s investigation of alleged impairment by drugs or a combination of alcohol and a drug is established in sections 320.28(2) and (3) of the Criminal Code and by the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations SOR / 2008-196 June 11, 2008, (hereinafter “the DRE Regulations”).
[47] Section 320.28(2)(a) states:
“If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person’s ability to operate it was impaired to any degree by a drug or by a combination of alcohol and a drug, or has committed an offence under paragraph 320.14(1)(c) or (d) or subsection 320.14(4), the peace officer may, by demand, made as soon as practicable require the person to comply with the requirements of either or both of paragraphs(a) and (b):
(a) to submit, as soon as practicable, to an evaluation conducted by an evaluating officer to determine whether the person’s ability to operate a conveyance is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose.”
[48] Section 320.11 defines “evaluating officer” as “a peace officer who has the qualifications prescribed by regulation that are required in order to act as an evaluating officer.” Section 1 of the DRE Regulations provides:
“An evaluating officer must be a certified drug recognition expert accredited by the International Association of Chiefs of Police.”
[49] It was agreed in this case that Officer Mayer, who had received his qualifications as a drug recognition expert, was an evaluating officer within the definition in the Criminal Code.
[50] Section 320.28(3) states:
“An evaluating officer who has reasonable grounds to suspect that a person has alcohol in their body may, if a demand was not made under subsection (1), by demand made as soon as practicable, require the person to provide, as soon as practicable, the samples of breath that, in a qualified technician’s opinion, are necessary to enable a proper analysis to be made by means of an approved instrument.”
The Positions of the Parties
[51] The Crown submits that the testing authorized by s. 320.28(3) is a screening procedure as part of a proper DRE assessment under the Criminal Code. The Crown submits that it was open to the police to use a truncated version of this test to determine whether there were reasonable grounds to believe the accused’s ability to operate a conveyance was impaired by alcohol, in order to determine if breathalyzer tests were lawfully permitted under s.320.28(1).
[52] The defence submits that there is no statutory authority for the single sample “rule-out” test, and that it is clearly unlawful and therefore a breach of s.8 of the Charter. The defence notes that s.320.28(3) was not complied with in this case because the demand was made by PC Duran, not by PC Mayer, the “evaluating officer”, and because only one sample was taken, not 2 samples as required by s. 320.28(3).
Analysis
[53] It is significant in my opinion that the test authorized by statute where an evaluating officer (the DRE expert) has reasonable grounds to suspect that the person has alcohol in their body, is described in the same language as the demand in s. 320.28(1)(a)(i) where a peace officer has reasonable grounds to believe that the person’s ability to operate a conveyance was impaired to any degree by alcohol.
[54] In each instance what is demanded, and permitted by statute, is that the person “provide, as soon as practicable, the samples of breath that, in a qualified technician’s opinion, are necessary to enable a proper analysis to be made by means of an approved instrument.” [emphasis added]
[55] This language, enacted by an amendment to the Criminal Code, in S.C. 2018, c.21. section 15 varies the previous s. 254 (3.3) by changing “sample” to “samples”. The prior section read:
“If the evaluating officer has reasonable grounds to suspect that the person has alcohol in their body and if a demand was not made under paragraph(2)(b) or subsection (3), the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable, a sample of breath that, in the evaluating officer’s opinion, will enable a proper analysis to be made by means of an approved instrument.” [emphasis added]
[56] There is nothing in the DRE Regulations that provides any additional or different authority for the qualified technician to take additional or different breath samples from the accused than is found in s. 320.28(3). Indeed, the DRE Regulations list in paragraph 3 the “tests to be conducted and the procedures to be followed during an evaluation under subsection 254 (3.1) of the Criminal Code” and makes no reference at all to any taking of breath samples by a qualified technician or any “rule-out” test.
[57] The majority decision in the Supreme Court of Canada in R. v. Bingley, 2017 SCC 12, [2017] 1 S.C.R. 170, written by McLachlin C.J.C. describes the DRE Regulations in the following terms at pp.183-184:
“The Regulations set out a uniform evaluative framework that a DRE must follow in order to reach a conclusion regarding drug impairment for the purposes of section 254(3.1). Parliament is entitled to establish such a framework, and in doing so, establish that the 12 step drug evaluation is sufficiently reliable for the purposes of determining impairment.”
[58] It is clear that the only authority for the taking of breath samples in the context of a DRE assessment for possible impairment by drugs or drugs and alcohol, is the statutory authority provided by section 320.28(3).
[59] Accordingly, I conclude that the taking of a single “rule-out” breath sample by a qualified technician, as part of the drug recognition expert evaluation, fails to comply with its sole legal basis, s.320.28(3) of the Criminal Code.
[60] What is permitted, where section 320.28(3) is applicable, in my opinion, is a demand by the evaluating officer and the provision of breath samples in compliance with section 320.28(3). This will require a demand, by the evaluating officer, and the provision of breath samples in the same manner as they are provided in the determination of the blood alcohol content of breath using an approved instrument operated by a qualified technician.
[61] PC Duran stated in his evidence that he understood that the rule-out sample taken pursuant to a demand under section 320.28(3) functioned as a screening mechanism to determine whether there were with reasonable and probable grounds to believe Mr. Fanone’s ability to operate a conveyance was impaired by alcohol. If the sample provided such grounds, he would be arrested for this offence. If the result did not provide a basis for arrest for impaired operation by alcohol, the investigation would continue as an investigation into an allegation of impaired operation by drug alone.
[62] It is significant, in my opinion, that the precondition to a demand under section 320.28(3) is reasonable grounds to suspect that the person has alcohol in their body. It is not reasonable grounds to believe that the person’s ability to operate the conveyance was impaired by alcohol. In this respect, it differs from the demand under section 320.28(1) for breath samples, which is preconditioned on reasonable grounds to believe that the person’s ability to operate the conveyance was impaired to any degree by alcohol, or that the person has committed an offence under s.320.14(1)(b).
[63] It is also significant that a precondition to the demand, and requirement to provide breath samples under s. 320.28(3) includes a requirement that the demand had not been made under s. 320.28(1).
[64] Accordingly, the provision of breath samples demanded pursuant to s.320.28(3) is intended, in my opinion, to permit the police to obtain the reasonable and probable grounds to continue an investigation for impairment by alcohol, when all they have is reasonable suspicion that the person has alcohol in their body, in a context in which the police have already formed reasonable and probable grounds to believe that the person’s ability to operate the conveyance is impaired by drugs (or a combination of drugs and alcohol).
[65] Properly interpreted in my opinion, the rule-out tests contemplated by s. 320.28(3) are intended to assist the police in determining whether the reasonable and probable grounds exist to believe that the person has committed the offence of operating a conveyance while the person’s ability to operate it was impaired to any degree by alcohol, or has committed an offence under s. 320.14(1)(b), to provide the lawful basis for making the breathalyzer demand under s. 320.28(1) to obtain admissible evidence of the person’s blood alcohol concentration.
[66] As the Supreme Court of Canada has summarized in R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527 at para. 13:
“Section 254(3) of the Criminal Code …. requires that an officer have reasonable and probable grounds to believe that the suspect has committed an offence under s.253 of the Code (impaired driving or over 80) before making a breathalyzer demand. As this Court explained in R. v. Bernshaw, [1995] 1 S.C.R. 254, at para. 51: “The requirement in section 254(3) that reasonable and probable grounds exist is not only a statutory but a constitutional requirement as a precondition to a lawful search and seizure under section 8 of the Canadian Charter of Rights and Freedoms”.
[67] In my opinion, there is no legal authority for the procedure employed by the evaluating officer, and the qualified technician in this case, of taking one breath sample using the Intoxilyzer 8000C, and to treat that breath sample as a “rule-out” sample to determine whether the investigation would continue to focus on alleged impairment by alcohol or impairment by drugs.
[68] It is clear that the process employed by PC Perez in this case was not to take samples of breath that are necessary to enable a proper analysis to be made by an approved instrument, as required by s.320.28(3). He acknowledged that he had to abort the analytical process utilized by the Intoxilyzer 8000C to force it to provide a single result, the so-called “rule-out test”, when the Intoxilyzer 8000C is programmed to require two samples to be taken, with a 17-minute time interval between them, in order to provide a reliable reading of an accused’s blood alcohol concentration.
[69] As PC Perez candidly acknowledged, to force the Intoxilyzer 8000C to produce test results for one sample, he had to abort the test process after waiting 17 minutes after the test sample was provided by pressing “R” (which means refuse) in order to receive a test result from the Intoxilyzer 8000C based on one sample only. PC Perez noted by hand on the Intoxilyzer test record “aborted as rule-out only” to correct the automatically generated false statement in the report “subject refused to continue”. PC Perez acknowledged the Intoxilyzer 8000C has no sequence designed for a single sample rule-out test.
[70] A search or seizure will be reasonable if it is authorized by law, the law itself is reasonable, and the manner in which the search or seizure was carried out was reasonable: R. v. Shepherd, supra, at para 15; R. v. Collins, [1987] 1 S.C.R. 265 at p. 278.
[71] In the circumstances of this case, s.320.28(3) provides the requirements of a lawful procedure to obtain breath samples from a person under investigation for operating a conveyance while impaired by drugs, where the evaluating officer has reasonable grounds to suspect that the person has alcohol in their body. The requirements of this section were not met in this case by taking a single sample rather than “samples of breath that, in a qualified technician’s opinion, are necessary to enable a proper analysis to be made by means of an approved instrument” in accordance with the statutory requirement in s.320.28(3).
[72] The “rule-out test” was therefore a breach of the accused’s section 8 Charter rights as the seizure of the breath sample in this case was not authorized by law, and the manner in which it was conducted was unreasonable in obtaining only one sample, rather than the two required, and in failing to comply with the requirements necessary to enable a proper analysis to be made by means of an approved instrument.
The Alleged Breach of Mr. Fanone’s Right to Counsel
[73] Defence counsel submits that, in failing to give Mr. Fanone a second opportunity to speak to counsel after the demand, but before the “rule-out” test was administered, the police breached Mr. Fanone’s s.10(b) Charter rights.
[74] In my opinion, there was no s. 10(b) breach on the part of the police in failing to provide a consultation with counsel after the s. 320.28(3) demand was made by PC Duran.
[75] When Mr. Fanone first spoke to Mr. Genua, he knew he was under arrest for impaired operation by drug. Experienced counsel such as Mr. Genua would know of the possible demand under s.320.28(3) in an impaired by drug investigation and would have the opportunity to provide advice on this to Mr. Fanone. Such a demand is described in s.320.28(3) as a possible part of the DRE evaluation in relation to Mr. Fanone’s arrest for impaired operation of a conveyance by drug.
[76] After he was arrested for impaired operation by alcohol, Mr. Fanone again spoke to Mr. Genua, after he had been told by PC Perez that more breathalyzer results would be obtained.
[77] The Supreme Court of Canada in R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R.310 addressed the circumstances in which a second consultation with counsel is required under s.10(b) of the Charter. In that case, the majority stated: at paras. 24, 26, 47, 48, and 50:
“[24] The purpose of s. 10(b) is to provide a detainee with an opportunity to obtain legal advice relevant to his legal situation. In the context of a custodial interrogation, chief among the rights that must be understood by the detainee is the right under s. 7 of the Charter to choose whether to cooperate with the police or not.
[26] The purpose of the right to counsel is “to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights”: R. v. Manninen, [1987] 1 S.C.R. 1233, at pp. 1242-43. The emphasis, therefore, is on assuring that the detainee’s decision to cooperate with the investigation or decline to do so is free and informed.
[47] “Section 10(b) should be interpreted in a way that fully respects its purpose of supporting the detainee’s s. 7 right to choose whether or not to cooperate with the police investigation. Normally, this purpose is achieved by a single consultation at the time of detention or shortly thereafter. This gives the detainee the information he needs to make a meaningful choice as to whether to cooperate with the investigation or decline to do so. However, as the cases illustrate, sometimes developments occur which require a second consultation, in order to allow the accused to get the advice he needs to exercise his right to choose in the new situation
[48] The general idea that underlies the cases where the Court has upheld a second right to consult with counsel is that changed circumstances suggest that reconsultation is necessary in order for the detainee to have the information relevant to choosing whether to cooperate with the police investigation or not. The concern is that in the new or newly revealed circumstances, the initial advice may no longer be adequate.
[50] The initial advice of legal counsel will be geared to the expectation that the police will seek to question the detainee. Non-routine procedures, like participation in a line-up or submitting to a polygraph, will not generally fall within the expectation of the advising lawyer at the time of the initial consultation. It follows that to fulfill the purpose of s. 10(b) of providing the detainee with the information necessary to making a meaningful choice about whether to cooperate in these new procedures, further advice from counsel is necessary: R. v. Ross, [1989] 1 S.C.R. 3.”
[78] Similarly, where the investigation changes, exposing the accused to new, or more serious jeopardy, a further consultation with counsel is required: R. v. Sinclair, supra, at para. 51.
[79] In R. v. Tahmasebi, 2020 ONCA 47, the Court considered the issue of a claim to entitlement to a second consultation with counsel after a DRE expert demanded a urine sample after completing a DRE assessment. The Court held, following R. v. Sinclair, that no further consultation was required under s.10(b). The Court stated at para. 26:
“[26] The statutory relationship between the procedures of a DRE demand and a urine sample demand on the one hand, and the offence of impaired driving on the other, does not permit the conclusion that the procedures fall outside the expectation of a lawyer advising a person who has been arrested or detained on a charge of impaired driving. That such demands might be made, and their consequences, would fall directly within the expected topics of advice counsel would give a person charged with impaired driving.”
[80] In the circumstances of this case, I find the initial consultation with counsel, and the second consultation with counsel after Mr. Fanone’s arrest for impaired operation by alcohol, before the breathalyzer samples were obtained, together amounted to sufficient compliance with s.10(b) of the Charter. The potential that a screening demand may be made, pursuant to s.320.28(3), in the course of a DRE evaluation, was a reasonably foreseeable aspect of the DRE evaluation of impairment by drug, authorized by the Criminal Code, such that the initial consultation with counsel was sufficient to comply with s.10(b) of the Charter before the rule-out test was administered. After Mr. Fanone was arrested for impaired operation by alcohol, he was given an opportunity to consult with counsel and he did so before the breathalyzer tests were administered which generated the results the Crown seeks to rely upon in the case. As this gave Mr. Fanone an opportunity to receive legal advice before the breathalyzer tests were administered, I find that s.10(b) of the Charter was complied with.
Section 24(2) Analysis
[81] I have found that the administration of the rule-out test in this case violated Mr. Fanone’s s.8 Charter rights. The defence therefore seeks the exclusion of the breathalyzer results obtained under s.24(2) of the Charter. Pursuant to R. v. Grant, 2009 SCC 2, the assessment under s. 24(2) of the Charter requires a consideration of the seriousness of the police misconduct, the impact of the breach on the Charter-protected interests of the accused, and society’s interest in an adjudication on the merits.
[82] In R. v. McColman, 2023 SCC 8 the Supreme Court of Canada has provided recent authoritative guidance on the application of s.24(2) of the Charter. The Court stated at paras. 53-54, and 57-59:
“[53] Section 24(2) requires that evidence obtained in a manner that infringes the Charter rights of an accused be excluded from the trial if it is established that “having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute”. The s. 24(2) analysis is an objective one, evaluated from the perspective of a reasonable person, and the burden to persuade a court that admission of the evidence would bring the administration of justice into disrepute rests on the party seeking exclusion: Grant, at para. 68.
[54] Section 24(2) is focused on maintaining the long-term integrity of, and public confidence in, the justice system. Accordingly, the exclusion of evidence under s. 24(2) is directed not at punishing police misconduct or compensating the accused, but rather at systemic and institutional concerns: Grant, at para. 70. In Grant, this Court explained that the s. 24(2) analysis engages three lines of inquiry: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter‑protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits. Courts are tasked with balancing the assessments under each of these lines of inquiry, but as recognized in Grant, “[t]he balancing mandated by s. 24(2) is qualitative in nature and therefore not capable of mathematical precision”: para. 140.
(1) The Seriousness of the Charter-Infringing Conduct
[57] The first line of inquiry focuses on the extent to which the state conduct at issue deviates from the rule of law. As this Court stated in Grant, at para. 72, this line of inquiry “requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct”. Or as this Court phrased it in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 22: “Did [the police conduct] involve misconduct from which the court should be concerned to dissociate itself?”
[58] In evaluating the gravity of the state conduct at issue, a court must “situate that conduct on a scale of culpability”: R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 43. As Justice Doherty observed in R. v. Blake, 2010 ONCA 1, 251 C.C.C. (3d) 4, “the graver the state’s misconduct the stronger the need to preserve the long‑term repute of the administration of justice by disassociating the court’s processes from that misconduct”: para. 23. To properly situate state conduct on the “scale of culpability”, courts must also ask whether the presence of surrounding circumstances attenuates or exacerbates the seriousness of the state conduct: Grant, at para. 75. Were the police compelled to act quickly in order to prevent the disappearance of evidence? Did the police act in good faith? Could the police have obtained the evidence without a Charter violation? Only by adopting a holistic analysis can a court properly situate state conduct on the scale of culpability.
[59] It should be noted at the outset that the first and second lines of inquiry are distinct. The first line of inquiry evaluates the state conduct itself, while the second line of inquiry goes further and assesses the impact of the state conduct on the accused’s Charter‑protected interests. This Court has noted that “[w]hile the first two lines of inquiry typically work in tandem in the sense that both pull towards exclusion of the evidence, they need not pull with identical degrees of force in order to compel exclusion”: R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 141. As noted in R. v. Lafrance, 2022 SCC 32, at para. 90, “it is the cumulative weight of the first two lines of inquiry that trial judges must consider and balance against the third line of inquiry when assessing whether evidence should be excluded” (emphasis in original). In certain situations, only one of the first two lines of inquiry will pull towards exclusion of the evidence. State conduct that is not particularly serious may nonetheless heavily impact the accused’s Charter‑protected interests. Conversely, state conduct that is egregious may minimally impact the accused’s Charter‑protected interests. Courts must be careful not to collapse the first two lines of inquiry into one, unstructured analysis.”
[83] With respect to the gravity of the Charter‑infringing state conduct, in the circumstances of this case, it is clear that the DRE Officer Mayer had the requisite grounds to suspect that Mr. Fanone had alcohol in his body based on smelling the odour of alcohol during the booking process. Officer Duran read a proper demand that was compliant with section 320.28(3) of the Criminal Code. While s. 320.28(3) stipulates that the demand be made by the “evaluating officer” (in this case PC Mayer), it was clear from the evidence that PC Mayer had determined that the rule-out test under s. 320.28(3) was required, and I have concluded that in substance PC Duran read the demand on behalf of PC Mayer, who had determined that a rule-out sample was required, so that this non-compliance with s. 320.28(3) is minor.
[84] After Officer Duran received the results of the single sample taken by PC Perez, he arrested Mr. Fanone for impaired operation by alcohol and gave him an opportunity to speak to his counsel again in relation to this charge.
[85] Prior to the breathalyzer samples being taken, by PC Perez at 4:50 and 5:13 a.m., Mr. Fanone was advised he was under arrest for impaired operation of a conveyance by alcohol, and was provided with an opportunity to confer with his counsel Mr. Genua. He had already had an opportunity to consult with counsel prior to the “rule-out test” when he had arrived at the station, but prior to the 320.28(3) demand.
[86] It was clear from the evidence that the practice of using a demand under section 320.28(3) to perform a single rule out test is a practice which has been taught to DRE officers as part of the proper assessment of persons suspected of impaired operation of a conveyance by drug. The officers in this case were following the instruction they received in their education as DRE officers. It also appears to be the case that, prior to the 2018 amendments to the Criminal Code, s. 254 (3.3) of the Criminal Code authorized a single sample to be taken as a screening test. The requirement that samples be taken, rather than a single sample, was a new requirement in 2018 in s.320.28(3). In the circumstances, having been instructed to take a single “rule-out sample”, which would have been permitted before the 2018 amendments, I am satisfied that the officers in this case acted in good faith in accordance with what they believed was the appropriate and lawful requirements of the “rule-out test”. In my opinion, considering the totality of the circumstances, the breach in this case was an error, committed in good faith, and did not involve serious misconduct from which the court should dissociate itself.
[87] With respect to the impact of the breach on the Charter‑protected interests of the accused, in my opinion the impact was minimal. The police administered one breathalyzer test into the Intoxilyzer 8000C, when they were required to administer 2, under s.320.28(3). The single result received was far over 80 mg of alcohol in 100 ml of blood. Mr. Fanone was given an opportunity to confer with counsel after the rule-out sample was obtained, and before the 2 breathalyzer results were obtained.
[88] Neither of the first or second factors in the s. 24(2) analysis supports the exclusion of the breathalyzer results. The third factor, society’s interest in the adjudication of the case on the merits also supports the admission of the breathalyzer results in evidence. Breathalyzer results are reliable evidence in relation to the serious offence of having a blood alcohol level of 80 mg of alcohol in 100 ml of blood, or higher, within 2 hours of ceasing to operate a conveyance. Society is justifiably concerned about the risk to the public created by the operation of a motor vehicle by a person who has consumed an excessive amount of alcohol. The adjudication of this case on the merits supports the admission of the breathalyzer results in this case.
[89] Accordingly, I find the breathalyzer results of 140 mg of alcohol in 100 ml of blood are admissible in evidence, as the defence has not established on a balance of probabilities that their admission in evidence would bring the administration of justice into disrepute under s.24(2) of the Charter.
[90] In the result, I find Mr. Fanone guilty of the 80 and over offence in count 2 of the information.
The Charge of Impaired Driving
[91] As the charge of impaired driving was fully argued, I will address it, acknowledging that the rule against multiple convictions articulated in R. v. Kienapple, [1975] 1 S.C.R. 729 precludes a conviction for both impaired driving and “80 and over” in relation to the same conduct.
[92] In considering the evidence on the charge of impaired driving, I have instructed myself that the breathalyzer results, which I have found to be admissible, are not evidence that proves impairment, in the absence of expert evidence to that effect: R. v. Letford, [2000] O.J. No.4841, per Laskin, J.A. at para. 22. No expert evidence on that issue was called in this case.
[93] However, the breathalyzer results are admissible, along with other relevant evidence, to support an inference that Mr. Fanone had alcohol in his system when he was driving his truck prior to being stopped by the police: R. v. Nandlall, [2009] O.J. No.3452, per Himel, J. at para. 9; R. v. Selvarajah, 2011 ONCJ 468, per Green, J. at para. 17; R. v. Haas, 2011 ONSC 4529, per Kennedy, J. at paras. 37-38; R. v. Hejmo, 2015 ONSC 2641, per Andre, J. at para. 47.
[94] Relevant evidence in this case that Mr. Fanone had consumed alcohol includes the observations of PC Duran and PC Mayer of an odour of alcohol on Mr. Fanone’s breath in the booking hall. There was evidence of the possible availability of alcohol in the truck he was driving as a result of the presence of the open Bacardi rum bottle found by PC Duran in the rear of the truck shortly after the police arrived on scene.
[95] The police did not see any swerving or erratic driving by Mr. Fanone. What they did observe was Mr. Fanone driving the truck for some distance down Keele Street without a front right tire, driving on the tire rim, with sparks flying, and with a flat rear tire, before turning onto Murray Ross Parkway where he stopped at the side of the road. Subsequent investigation by PC Febbo found the rim and suspension arm piece from Mr. Fanone’s truck on Keele Street, north of Murray Ross Parkway, along with a bumper from another vehicle. While the circumstances of the accident are unclear, it is clear that Mr. Fanone was involved in a serious accident while driving his truck, resulting in substantial damage to the truck.
[96] When the police interacted with Mr. Fanone after his truck was stopped, and he stepped out of the truck, PC Duran observed Mr. Fanone to show some unsteadiness on his feet and some swaying. PC Febbo noticed glossy eyes, some swaying, and unsteadiness on his feet on the part of Mr. Fanone. He acknowledged that Mr. Fanone was not stumbling and answered his questions coherently.
[97] There is, however, highly probative evidence of impairment in Mr. Fanone’s interactions with the police in the booking process and in the breath technician’s room shown in the videos filed in evidence. His speech was bizarre, rambling, at times vulgar and disjointed, and frequently meandering from one irrelevant topic to another irrelevant topic, which I find was compelling evidence of disinhibition demonstrating the substantial effect on his functioning from the consumption of alcohol.
[98] On the totality of the evidence, I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Fanone’s ability to operate a conveyance was impaired, to some degree, by the consumption of alcohol contrary to s.320.14(1)(a) and I find him guilty of that offence.
[99] As the offences under ss. 320.14(1)(a) and s. (1)(b) arise out of the same conduct, it is necessary to consider the application of the rule against multiple convictions articulated by the Supreme Court of Canada in R. v. Prince, [1986] 2 S.C.R. 480.
[100] It is clear from that decision that this principle precludes convictions for both of these offences when they arise from the same transaction: R. v. Prince, supra, at pp 501-502.
[101] Pursuant to R. v. Prince, supra, at p. 499, where offences are of unequal gravity, a conditional stay should be entered for the less serious offence, and a conviction entered for the more serious offence.
[102] In this case, Mr. Fanone was found guilty under s.320.14(1)(b) with a blood alcohol concentration of 140 mg. of alcohol in 100 ml of blood within 2 hours after ceasing to operate a conveyance. Accordingly, under s. 320.19(3)(a), for a first offence, he is liable to a fine of not less than $1,500, whereas for a first offence of impaired driving, the minimum fine is $1,000.
[103] Accordingly, the offence under s. 320.14(1)(b) is the more serious offence and, pursuant to R. v. Prince, supra, a conviction will be entered on that count, and a conditional stay entered on the charge of impaired driving in count 1 in the information.
Dated: June 20, 2023
Justice David Porter