SUPERIOR COURT OF JUSTICE - ONTARIO

Court File No.: 12740/11AP
Date: 20120322

RE: Her Majesty the Queen v. James Griffin

Before: The Hon. Justice M. L. Lack

Counsel:
Norm Stanford, for the Appellant James Griffin
Mitchell Flagg, for the Respondent Her Majesty the Queen

E N D O R S E M E N T

[ 1 ] On May 19, 2011 His Honour Judge De Freitas convicted James Griffin of operating a motor vehicle on June 20, 2010 while his blood alcohol concentration was over 80 milligrams of alcohol in 100 hundred millilitres of blood. Mr. Griffin appeals the conviction.

Grounds of Appeal

[ 2 ] There are three grounds of appeal:

(i) that the trial judge erred in finding that the Crown had proved beyond a reasonable doubt that the breath samples were taken as soon as practicable;

(ii) that the trial judge erred in law in failing to provide any reasons for his ruling that the certificate of a qualified breath technician ought to be admitted; and

(iii) that the trial judge erred in his analysis of s. 24(2) of the Charter when he decided not to exclude the breathalyzer readings after he had found that there had been a breach of s. 8 of the Charter .

The First Ground of Appeal

[ 3 ] Did the trial judge err in finding that the Crown had proved beyond a reasonable doubt that the breath samples were taken as soon as practicable?

[ 4 ] In a drinking and driving case where the Crown seeks to rely upon the presumption of identity (the presumption that the accused’s blood alcohol level at the time of the breathalyzer test was the same as at the time of the alleged offence) there is a requirement under s. 254(3) of the Criminal Code that each sample must have been “taken as soon as practicable after the time when the offence was alleged to have been committed.”

[ 5 ] At trial, the accused argued that the breathalyzer tests were not taken as soon as practicable and so the presumption did not apply. Consequently, the accused was entitled to an acquittal.

[ 6 ] The trial judge found that in all of the circumstances the breath tests were taken within a reasonably prompt time satisfying the “as soon as practicable” Code requirement.

[ 7 ] On this appeal, counsel for the appellant argues that the trial judge erred in making the determination he did. He argues that the trial judge erroneously considered that in order to determine whether the first sample was taken as soon as practicable he had to resolve the discrepancy between the evidence of the arresting officer and the breath technician about when the accused was handed over to the breath technician. He contends that in becoming distracted by that side issue the trial judge failed to consider the real issue which was the significant period of unexplained delay between when the accused finished with duty counsel and when he was turned over to the breath technician. Moreover, he contends that the trial judge underestimated the time when the accused finished with duty counsel by 4 minutes.

[ 8 ] In my view, there is no merit to this ground of appeal.

[ 9 ] The trial judge did erroneously think that there was a discrepancy in the evidence of the two officers. He thought that the arresting officer said that he turned the accused over to the breath technician at 2:32 a.m. The breath technician testified that he received the accused at 2:51 a.m. with the first breath test taking place at 2:56 a.m. In fact, the arresting officer eventually testified that he turned the accused over to the breath technician at 2:51 a.m. – so there was no discrepancy in their evidence. This minor controversy was not material to the trial judge’s decision, however, because the trial judge ultimately found that the accused had been turned over to the breath technician at 2:51 a.m. as the breath technician had said. The trial judge considered the unexplained delay was 19 minutes. The appellant contends that the unexplained delay was really 23 minutes based on the evidence of when the accused left the room after speaking to duty counsel (2:28:28 a.m.). I also do not view this error, if it was one, as material to the trial judge’s decision.

[ 10 ] The real issue was not the delay between the hand-over of the accused by the arresting officer to the breath technician. The real issue for the trial judge to determine was whether the entire period from arrest to the first breath test was unreasonable. That is the period of time that the trial judge, in fact, assessed – and he correctly considered that time period as being from 1:53 a.m. to 2:56 a.m. It was in determining whether that time period was as soon as practicable that he considered the unexplained delay of 19 minutes. I fail to see how an additional period of 3 to 4 minutes one way or the other would have made any difference to his analysis.

[ 11 ] In coming to his decision, the trial judge considered the leading case of R. v. Vanderbruggen , 2006 ONCA 9039 , [2006] O.J. No. 1138. There the Ontario Court of Appeal wrote that “as soon as practicable” means nothing more than that the tests were taken within reasonable, prompt time under the circumstances. The touchstone for the determination is whether the police acted reasonably, not whether there is an exact accounting of every moment that the accused was in custody.

[ 12 ] Here, the trial judge applied the ratio of the Vanderbruggen case. He looked at the entire period from arrest to first test. He was cognizant of and considered the unexplained delay. He concluded that the officers had acted reasonably in light of the entire chain, including the delay. He was entitled to come to that determination on the facts. In my view, he made no reversible error in doing so.

The Second Ground of Appeal

[ 13 ] Did the trial judge err in law in failing to provide any reasons for his ruling that the certificate of a qualified breath technician ought to be admitted?

[ 14 ] In order for the certificate of a qualified breath technician to be admitted into evidence the requirements of s. 258(7) of the Criminal Code must be satisfied. That section requires the trial judge to be satisfied on a balance of probabilities that a true copy of the certificate was served on the accused. Here, the trial judge admitted the certificate into evidence. The certificate takes the place of direct evidence that the breath technician was a qualified breath technician on the date he conducted the breath tests and takes the place of direct evidence that the breath samples were received directly into the instrument. Because there was no such direct evidence, if the certificate had not been admitted, the trial judge would have had to consider whether he was satisfied beyond a reasonable doubt that these requirements were met on the circumstantial evidence. Counsel for the appellant contends that in light of this, there is a reasonable possibility that if the certificate had not been admitted the verdict could have been different.

[ 15 ] The trial judge’s ruling on the admissibility of the certificate was simply: “All right. I’m satisfied based on the evidence I have that the document can be admitted as a numbered exhibit, so this will be Exhibit Number 5.”

[ 16 ] The appellant submits that the trial judge failed to give his reasons for ruling that the certificate was admissible and that in failing to do so he erred because in R. v. Sheppard , 2002 SCC 26 , [2002] S.C.J. No. 30 the Supreme Court of Canada stated that a trial judge must provide reasons that allow for meaningful appellate review.

[ 17 ] In my view, there is no merit to this ground of appeal.

[ 18 ] The issue at trial was the admissibility of the certificate. To be admissible the trial judge had to be satisfied on a balance of probabilities that the accused had been served with a true copy of the certificate. There was a voir dire on the issue.

[ 19 ] On the voir dire the arresting officer testified that he had served a true copy of the certificate on the accused. There were some problems with his evidence. He gave conflicting evidence on when he did it. In his evidence in-chief he said that he served the accused at 4:00 a.m. However, on cross-examination he said that he had served all of the documents on the accused at 4:15 a.m. He could not account for the discrepancy. Moreover, he had a note in his notebook that he served all the other documents on the accused but he did not have a note of serving the certificate on the accused. Another problem was that he said that he had received only one copy of the certificate from the breath technician and he was absolutely positive that he made photocopies of it himself before he served a copy on the accused. That evidence conflicted with the evidence of the breath technician who testified that he was one hundred percent sure that he had made photocopies of the certificate to give to the arresting officer. The accused had not signed acknowledging receipt of the certificate. The arresting officer testified that the accused had refused to sign the acknowledgement. That was the evidence on the voir dire . The accused did not testify at trial and there was no evidence to the contrary to suggest that the accused had not received the certificate.

[ 20 ] At trial, defence counsel made significant submissions on the issue of service and argued that compliance with s. 258(7) was not apparent from the circumstances presented by the evidence and so the certificate should not be admitted into evidence. The problems with the arresting officer’s evidence were front and centre in the argument that defence counsel made about why the certificate should not be admitted into evidence. Having just heard the argument of counsel and engaged in an exchange with counsel about these matters, the trial judge ruled that he was satisfied that the document could be admitted.

[ 21 ] In my view, it is clear from the context that the trial judge was focused entirely on whether the arresting officer served a true copy of the certificate on the accused. He is deemed to know the law. He obviously found that the arresting officer had served the document on the accused. He was entitled to do so, on the evidence presented. In my view, he made no reversible error in doing so or in failing to state that despite some peripheral problems with the arresting officer’s evidence he accepted as a fact that he had served the document on the accused.

The Third Ground of Appeal

[ 22 ] Did the trial judge err in his analysis of s. 24(2) of the Charter when he decided not to exclude the breathalyzer readings after he had found that there had been a breach of s. 8 of the Charter ?

[ 23 ] The trial judge found that there was a breach of the accused’s s. 8 Charter right to be free from unreasonable search and seizure because the arresting officer did not have reasonable grounds to make a “breath demand” on the accused. Having made that finding, the trial judge was then required to consider and decide whether the breathalyzer test results should be excluded from evidence at the trial under s. 24(2) of the Charter .

[ 24 ] In R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353 the Supreme Court of Canada ruled that when faced with an application for exclusion of evidence under s. 24(2) of the Charter because of a Charter violation a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to three factors: First, the seriousness of the Charter -infringing state conduct; Second, the impact of the breach on the Charter -protected interests of the accused; Third, society’s interest in the adjudication of the case on its merits: see Grant at paragraphs 107 - 111 .

[ 25 ] The trial judge assessed and balanced these factors and ruled that the test results should not be excluded. Counsel for the appellant submits that the trial judge was in error in reaching that determination because in considering the seriousness of the breach, he mischaracterized it as “close to the line”; and in considering the impact of the breach, he concluded that there was no direct evidence of the impact of the accused being handcuffed to a wall at the police station.

[ 26 ] In my view, there is no merit to this ground of appeal.

[ 27 ] In considering the seriousness of the breach, the trial judge found that it was “close to the line”. The appellant argues that the trial judge fell into error in making this determination by failing to consider a number of aspects of the evidence including the exceptionally brief investigation by the arresting officer leading up to the arrest; the arresting officer’s misplaced emphasis on the odour of alcohol; his acknowledgment that many people brake suddenly when speeding and coming within the vicinity of a marked cruiser; the significant observations pointing away from impairment that the officer ignored such as an extended period of normal, proper driving, the lack of slurred speech or coordination issues and the appellant’s appropriate responses to questioning at the roadside.

[ 28 ] The question of the seriousness of the breach focuses on the issue of whether police conduct was a deliberate and egregious disregard of the accused’s rights or whether the breach was committed in good faith. It is a fact-specific determination.

[ 29 ] Here, the trial judge did not fail to consider all of the circumstances. Rather, he found that aside from the speed of driving and sharp braking there was no evidence to suggest impairment. He also found that there was no evidence that the accused’s motor skills were anything other than normal. Taking that into account, he found as a fact that the arresting officer honestly believed that he had grounds to make an arrest. He found that there was no evidence that the officer deliberately set out to infringe the accused’s Charter rights. He found that there was no evidence that the officer’s conduct could be characterized as egregious. He found that it was far from flagrant or abusive. Those findings are dispositive of the issue of the seriousness of the breach and the evidence supported them.

[ 30 ] Next, the trial judge considered the impact of the breach on the accused’s Charter- protected interests.

[ 31 ] Counsel for the appellant submits that in doing so the trial judge erred in concluding that there was no direct evidence of the impact on the accused of being handcuffed to a wall while at the police station. It is the appellant’s position that the evidence of the police officers that the accused was handcuffed to a wall on two occasions was direct evidence of further interference with the accused’s personal liberty after an illegal arrest. Moreover, it is argued that the trial judge misapprehended the evidence by only referring to one incident of handcuffing to the wall when there was evidence it happened twice.

[ 32 ] The question of the impact of the breach on the accused’s Charter -protected interests in the context of bodily evidence obtained in violation of s. 8 focuses on an examination of the degree to which the search and seizure intruded upon the privacy, bodily integrity and human dignity of the accused. The seriousness of the intrusion on the accused may vary greatly.

[ 33 ] Here, the trial judge considered the totality of the circumstances flowing from the breach. He found that the breath testing procedure was “minimally intrusive”. This finding accords with the comment in Grant at paragraph 111 that: “…[W]here the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused’s body may be admitted. For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive.”

[ 34 ] The trial judge also considered the evidence that the accused had been restrained at the police station. He said: “I note that after being paraded before the staff sergeant at the police station, Mr. Griffin was handcuffed to a wall before being taken to speak with duty counsel. That fact raises some concerns in my mind. It may or may not be that procedure is justified from a police perspective, even for someone like Mr. Griffin who was cooperative and compliant throughout his dealings with [the arresting officer]. However, that issue is not explored in any depth in cross-examination and, as Mr. Griffin did not testify on this application, I do not have any direct evidence from him of the impact of this procedure.”

[ 35 ] The trial judge’s approach, in my view, was reasonable. There is restraint of some degree inherent in the concept of arrest. The focus was on the seriousness of the impact on this accused in these circumstances. Apart from the objective fact of handcuffing, the best evidence about the impact would have come from the accused. I fail to see how failing to mention that the accused was handcuffed more than once would have materially affected the trial judge’s analysis.

[ 36 ] The trial judge then weighed all of the factors in a post- Grant analysis stating: “…[I]n assessing the value of the trial on the merits, reliability of the evidence is key. Bodily samples such as results from breath testing are generally considered reliable. Where, as here, the Charter violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, evidence such as breath samples may be admitted.” The trial judge then ruled that the test results would not be excluded.

[ 37 ] In the circumstances of this case, I see no error in the trial judge’s analysis or conclusion that the tests should be admitted. His decision was fully supported on the evidence. It is difficult to see how reasonable members of society would think less of a justice system that admits evidence of breathalyzer readings rather than excludes them when a judge second-guesses a frontline police officer acting in good faith albeit imperfectly.

Conclusion

[ 38 ] For these reasons, the appeal is dismissed. The stay of the driving prohibition and of payment of the fine imposed at trial is now expired.

M. L. Lack S.C.J.

DATE: March 22, 2012