ONTARIO COURT OF JUSTICE
DATE: 2025-03-12
NEWMARKET
BETWEEN:
HIS MAJESTY THE KING
— AND —
MICHAEL DAVID HAMILTON
JUDGMENT
Evidence Heard: February 4, 5, 2025
Final Reasons Delivered: March 12, 2025
Ms. Ranya Taher ..................................................................................... counsel for the Crown
Mr. Michael Hamilton ................................................................................................. defendant
KENKEL J.:
Introduction
[1] Mr. Hamilton is charged with the offence known as “80+” – having a blood alcohol concentration in excess of the legal limit (79mgs) within 2 hours of ceasing to operate a conveyance contrary to s 320.14(1)(b).
[2] Mr. Hamilton drove to an LCBO and quickly purchased several bottles of alcohol. On his way out he stared at a uniformed police officer who was sitting near the entrance in an unmarked car. After staring repeatedly at the officer Mr. Hamilton abandoned his LCBO purchases in his truck and then walked away to nearby Leslie Street. Two officers investigated him on the sidewalk. The odour of alcohol coming from Mr. Hamilton led to an Approved Screening Device (ASD) demand. The failure of that test led to further testing on an Approved Instrument at the station. The results of those tests (149, 136mgs) led to the charge before the court.
[3] At the outset of the trial, Mr. Hamilton identified two related Charter issues. He submitted that after he abandoned his vehicle the officers had no lawful authority to administer an ASD test or detain him for that purpose. He had raised the same issues with the officers at the roadside. As Mr. Hamilton was representing himself, the Crown was asked to identify any other potential Charter issues that arose on the evidence and the court monitored the evidence for that purpose as well.
[4] PC Hyde’s direct observation of Mr. Hamilton driving on Leslie Street into the liquor store lot, the Certificate of Qualified Technician proved with notice, the Approved Instrument test records and the testimony of the Qualified Technician all prove beyond a reasonable doubt that Mr. Hamilton had a blood alcohol concentration in excess of the legal limit within two hours of ceasing to operate a conveyance as alleged.
[5] The issues for decision at trial are the same ones raised by the accused in his discussion with the officers that day – whether the officers had lawful authority to investigate Mr. Hamilton after he walked away from his car and whether the ASD demand and test were lawful.
ASD Test After Truck Abandoned
[6] Mr. Hamilton drove into the LCBO lot and parked. He quickly purchased numerous items then exited the store. He stared at the uniformed officer PC Hyde who was sitting in an unmarked police vehicle. Constable Hyde noted his face was red, which the officer thought was a sign of alcohol consumption. Mr. Hamilton returned to his vehicle but kept staring back towards the officer. Several minutes later after continued staring Mr. Hamilton abandoned his purchases and his truck and walked to Leslie Street.
[7] Mr. Hamilton submits the officers did not observe any indicia of impairment up to the point they spoke to him on the sidewalk. If they had seen indicia of impairment and wanted to investigate, they lost their opportunity when he walked away from his truck. Mr. Hamilton described the officers as angry, perhaps because he walked away. They were on a “witch hunt”.
[8] The two in-car camera (ICC) videos recorded the investigation. The officers weren’t angry. On the contrary they were polite with Mr. Hamilton. Once he agreed to stop and speak with them, he was polite with them.
[9] The investigation of Mr. Hamilton wasn’t a “witch hunt” or arbitrary. When Mr. Hamilton exited the LCBO carrying his purchases, his actions and his staring caught the attention of the officer. It’s very unusual for a person to drive to a store, purchase multiple items then abandon the purchases and the vehicle in a commercial plaza. The decision to leave the car seemed directly related to the presence of the police officer to avoid possible investigation. In that context the officer had good reason to speak with Mr. Hamilton.
[10] At first Mr. Hamilton did not stop to speak with PC Hyde, he kept walking. He was not detained and he was free to do so. When PC Johnson arrived shortly afterwards, he did stop and both officers spoke with him. Both officers detected a strong odour of alcoholic beverage coming from Mr. Hamilton when he spoke. An ASD demand based on reasonable suspicion followed immediately. The test was conducted directly after the demand. A self-test conducted as a demonstration for Mr. Hamilton resulted in a 0mgs/100ml reading for the officer which was consistent with the fact that the officer had not consumed alcohol that day. The accused’s test resulted in a reading of 163mgs/100ml. That’s double the legal limit and a “fail” result. The device typically is set to display the word “Fail” instead of a numerical reading, but PC Hyde confirmed that the ASD was properly calibrated and in proper working order. The result was accurate and provided reasonable grounds for arrest and an Approved Instrument demand.
[11] Prior to 2008, the Criminal Code was limited in the way Mr. Hamilton suggests. Section 254(2) of the Criminal Code authorized an ASD test where the officer reasonably suspects a person had alcohol in their body and that person “is operating” or “has care or control” of a motor vehicle etc. The confusing use of the present tense in both official languages implied that the demand could only be uttered as the accused drove by or was found in care or control. Courts interpreted those words in a manner that provided some limited “past signification” to allow for demands after the vehicle had stopped. It will come as no surprise that much court time was spent interpreting the boundaries of “past signification”.
[12] Parliament addressed this issue in Bill C-2 which took effect July 2, 2008. Section 254(2) was amended to authorize an ASD demand where an officer had reasonable grounds to suspect that a person had alcohol in their body and had operated or had the care or control of a motor vehicle within the preceding three hours. The present ASD demand section 320.27(1) has the same requirement – a belief that a person has alcohol in their body and has operated a conveyance within the preceding three hours.
[13] In this case Constable Hyde saw Mr. Hamilton operating his truck a short time before the ASD demand. His subsequent observations reasonably led him to speak with Mr. Hamilton on the sidewalk along Leslie Street. The odour of alcohol coming from a person he had just seen driving provided the reasonable suspicion required for the ASD demand and test.
[14] PC Johnson patiently explained all this to Mr. Hamilton at the roadside as recorded on his ICC video. He explained that Mr. Hamilton’s driving combined with the odour of alcohol coming from his mouth provided the basis for the demand. When Mr. Hamilton remained skeptical about the legal requirement, P.C. Johnson looked up the Criminal Code reasonable suspicion demand section on his mobile device and read that to Mr. Hamilton verbatim so he would understand that the officers were authorized to investigate a person who had operated a conveyance within 3 hours.
[15] After Mr. Hamilton was taken from the scene to One District a vehicle inventory search showed an open Tall Boy can of “Stella” (Artois) on the floorboard below the driver’s seat. There were empty beer cans throughout the vehicle.
[16] It appears Mr. Hamilton walked away from his vehicle in order to avoid being investigated for drinking and driving. He was plainly aware of his jeopardy in that regard. He was mistaken though that walking away from a vehicle can stop a police investigation. In this case it was the contrary – it was his staring at the police officer over several minutes then his abandonment of his purchases and his vehicle that led the police to want to speak with him.
[17] The ASD demand in this case was based upon reasonable suspicion that met the criteria in s 320.27(1)(b) – Mr. Hamilton had been operating his truck within three hours and the odour of alcohol showed he had alcohol in his body. There is no evidence of a s 8 or s 9 breach.
[18] The Crown called evidence to address other potential Charter issues not raised by the defendant. The evidence showed that the ASD demand was made immediately, and the test was administered directly after the demand. Mr. Hamilton was advised of his right to speak to a lawyer and his options in that regard. He spoke to counsel at the station. The officers were right to call a second duty counsel to ensure timely advice after waiting for the first duty counsel lawyer to respond. Documents were prepared and served after the breath tests. Mr. Hamilton was released shortly afterwards. There was no other apparent Charter issue at trial.
Conclusion
[19] There’s no evidence of a Charter breach. I find the Crown has otherwise proved the charge alleged beyond a reasonable doubt.
Delivered: March 12, 2025
Justice Joseph F. Kenkel