COURT FILE NO.: 7263/11

DATE: 2012-10-31

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Milton Pierce

Appellant

Benoit Renaud, for the Crown Donald R. Orazietti, for the Appellant

HEARD: September 26, 2012

E.J. Koke J.

DECISION ON APPEAL

[1] This matter concerns an appeal from a conviction entered August 4, 2011, in the Ontario Court of Justice, Sault Ste. Marie, Ontario, on a charge pursuant to s. 253(1)(b) of the Criminal Code of Canada (Driving with over 80 milligrams of alcohol).

Background

[2] At around 12:30 a.m. on December 8, 2009 Milton Pierce left the Roadhouse Tavern (the “Roadhouse”) in Sault Ste. Marie, Ont. with the intention of driving to the home of a friend where he planned to spend the night. He admits that he had been at the Roadhouse for about 40 – 45 minutes and during that time he had consumed three beers and two rum and coke.

[3] The Roadhouse is located on Trunk Road on the east end of the city. Trunk Road. is also known as Highway 17. Highway 17 is the main highway between Sudbury to the east and Sault Ste. Marie on the west and it serves as a connecting link to communities on the north shore of Lake Huron, including the Town of Thessalon.

[4] Mr. Pierce testified that he turned left on to Trunk Road in a westerly direction when he left the Roadhouse. As he turned left he noticed a set of headlights approaching from the east on Trunk Road but still a considerable distance away. He testified that almost immediately after turning on to Trunk Road he stopped at the traffic light at the intersection of Trunk Road and Adeline Avenue. When the light turned green he turned right on to Adeline Ave. and then made an immediate right again on to Frontenac Street. He was now driving in an easterly direction parallel to Trunk Road. After driving on Frontenac for a short distance he turned left on to P[…] Street. His friend lived at P[…] Street. Just before he arrived at P[…] Street he was pulled over by OPP Officer Jason Ferguson. Officer Ferguson testified that he had been travelling on Trunk Road on his way from Thessalon to Sault Ste. Marie when he observed Mr. Pierce’s vehicle.

[5] The distance from the Roadhouse to P[…] Street is less than one kilometre.

[6] According to Mr. Pierce, he admitted to the officer that he had had something to drink and was then given a roadside demand for a breath sample. He responded by saying “Well, geez that’s going to kind of screw me, I just did this within the hour”. Mr. Pierce was then told by the officer that he would wait 20 minutes to administer the test and “give it a chance to get out of your system.”

[7] Mr. Pierce failed the roadside test. He then attended at the police station where he provided two breath samples which registered over the legal limit. He was charged with an offence under s. 253 (1) (b) of the code and he was convicted by Bignell J. on August 4, 2011.

The Voir Dire

[8] At trial Mr. Pierce alleged that his rights under sections 8, 9 and 10(b) of the Canadian Charter of Rights and Freedoms had been breached and he sought an order under section 24(2) of the Charter excluding the evidence obtained as a result of the violation of his rights. The appellant’s arguments in support of his position are as follows

a) The officer did not have reasonable grounds for stopping his vehicle. The officer pulled the accused over because he saw him pull out of the Roadhouse. This constitutes a form of profiling which is improper.

b) The breath test was not taken as soon as the officer formed a reasonable suspicion, nor was the accused provided with a right to counsel, notwithstanding the fact that he had a reasonable opportunity to do so because he was carrying a cell phone.

c) Mr. Pierce was not provided with a right to counsel upon detention and this violation results in the exclusion of the breath tests.

d) The demand for the breath test was not made “forthwith”. The demand for the breath test was read to Mr. Pierce when he was in the back of the police cruiser and when he was no longer in the care and control of his vehicle.

Evidence on Voir Dire

[9] Mr. Pierce and Officer Ferguson presented different versions of what transpired when Mr. Pierce was pulled over.

[10] Constable Ferguson, who is a 13 year veteran of the police force, testified that he first observed Mr. Pierce’s vehicle when it was stopped at the intersection of Trunk and Adeline. He states that after pulling Mr. Pierce over he spoke to him through his car window. He asked for the usual documents but he smelled alcohol and asked Mr. Pierce if he had been drinking to which Mr. Pierce replied “two beers”. Constable Ferguson then asked Mr. Pierce to exit his vehicle and accompany him to his vehicle for a breath test.

[11] Constable Ferguson testified that after Mr. Pierce responded to a question by him concerning recent consumption of alcohol he decided to wait 20 minutes before administering the test. His decision to wait was based on his understanding that it takes 15 minutes to dissipate mouth alcohol.

[12] On cross-examination, Constable Ferguson was asked why he made the decision to pull Mr. Pierce over. He responded by stating that he observed that the back window of Mr. Pierce’s vehicle was “covered” with snow, the back license plate too could only be partially read because it was covered with snow and the side windows were tinted too dark.

[13] Constable Ferguson agreed that if Mr. Pierce had mirrors on the sides of his vehicle, as he had testified, then this would constitute a legal alternative to an obstructed back windshield under the Highway Traffic Act. He also testified that although there is an instrument available to test whether a window is tinted beyond Department of Transport standards, he did not have such a testing instrument with him and he did not follow up to check to see whether the applicant’s windows were in violation of the standards. He stated that he did not recall reading the licence number to dispatch while parked and sitting in the cruiser, as Mr. Pierce had testified.

[14] He further testified that he was coming into the City of Sault Ste. Marie from the Town of Thessalon when he first observed Mr Pierce’s vehicle, which was stopped at the intersection on Trunk Road and Adeline. He was within one or two car lengths of the Pierce vehicle at the intersection. He did not see it pull out of the Roadhouse. He followed the Pierce vehicle as it turned onto Frontenac and while on Frontenac he activated his lights. Mr. Pierce then turned left onto P[…] St. where he stopped.

[15] When asked why he did not pull the vehicle over while it was on Frontenac Street. Constable Ferguson replied that he had activated his lights while on Frontenac but he could not recall exactly where. He did not know where Mr. Pierce first noticed that he had activated his lights and he suggested there may have been a delay because the back window was covered with snow.

[16] Constable Ferguson testified that he had last made weather observations at 3:30 p.m. the previous afternoon and his only recorded observation was that the roads were wet.

[17] He stated that it was the totality of the circumstances which led him to conduct the stop.

[18] The officer stated that his reasoning for the delay in administering the breathalyser test was to prevent a mouth-alcohol effect. He was asked the following question by counsel and replied as follows on cross-examination with respect to the 20 minute delay:

Q: You want to help him by delaying the test but it may also prejudice him because it may increase the amount of alcohol in his breath and his blood when he finally does blow because of the 20 minute delay?

A: I could see that.

[19] Mr. Pierce testified on the voir dire that he was 54 years of age. He was involved in a very serious car accident in 1988 and as a result he suffers from degenerative disc disease. He walks with a cane and he receives an Ontario Disability pension.

[20] As a result of his accident he has become a very cautious driver. He has therefore adopted a routine while driving in the wintertime, which involves brushing off his windows, making sure all the lights are working and the car is warmed up.

[21] He stated that he drinks because it is medicinal (he has a lot of pain). When he drinks he tries to have a number of drinks in a short period of time so he can be home before it is absorbed.

[22] He testified that before going to the Roadhouse he had picked up a sub. Two police officers arrived at the shop while he was there. One came inside and one stayed in the police vehicle. He left in his vehicle while he was there and neither of the police officers said anything about the condition of his car.

[23] He stated that he was only at the Roadhouse for 40-45 minutes and he believed he would have been home before the alcohol would affect him.

[24] He testified that the exterior of his vehicle was not snow covered since it had not snowed and he always brushes the snow off his vehicle. He saw a car approaching from the east when he pulled out of the Roadhouse and this car was about a mile away.

[25] He states that he saw the lights from the police car come around the corner on to Adeline when he was only about two houses away from P[…] Street. He pulled left on to P[…] and pulled over about 30 feet from his friend’s driveway. He estimated that he drove about a kilometre on Adeline Street.

[26] Mr. Pierce testified that he had a tic tac candy in his mouth, that he had been smoking, that he had an order of chips and gravy on the front seat, as well as a submarine sandwich and that the officer, who is about 6 ft. 4 inches tall never put his head in the window and remained about two-and-a-half feet away from him.

[27] When the officer first approached his vehicle, he asked him for his license, ownership and insurance and while he was looking for his insurance folder the officer said “Well never mind that, just come back to my car”...he seemed to be in a hurry to get him into the cruiser.

[28] Mr. Pierce stated that once he was in the vehicle the police officer asked him how many drinks he had, to which he answered two beers and three rum and cokes. He was then given the roadside demand and responded to the demand by saying “well, geez that’s going to kind of screw me, I just did this within the hour”. Mr Pierce was then told by the officer that the officer would wait twenty minutes to allow the alcohol to get out of his system.

[29] Mr. Pierce testified that while he was in the police vehicle he asked the officer why he was pulled over. The officer replied that he could not read the licence plate. The appellant questioned this because he had just heard the officer read his licence plate number to his dispatcher. The officer replied that he could not read it if you were 15 or 20 feet behind the vehicle. When he pointed out to the officer that it was night time the officer started to think and then said “well, your back window isn’t totally clear”...and then told him that the tinting was too dark.

[30] The appellant agreed that the officer informed him that he had a right to legal representation but did not inform him of this right until the 20 minutes had passed and he had failed the screening test.

Disposition of Voir Dire Issues at Trial

a) Did the officer have reasonable grounds for stopping the accused’s vehicle? (Section 9 of the Charter)

[31] The trial judge considered the evidence of Constable Ferguson and of the accused and summarized this evidence in her decision. She commented on the discrepancies between the evidence of Constable Ferguson and the accused and concluded her decision of this aspect of the voir dire with the following words:

As stated earlier, the onus is on Mr. Pierce to show that he was arbitrarily detained on a balance of probabilities, that is, it was more likely than not that he was arbitrarily detained,. Both Mr. Pierce and Constable Ferguson gave their evidence in a straightforward manner. Constable Ferguson had made notes at the time of the occurrence and Mr. Pierce had apparently made notes the day after the occurrence. There has been no indication that Constable Ferguson had been consuming alcohol at the time while Mr. Pierce by his own admission had consumed two beer and three rum and coke.

Upon examination of all of the evidence, I am unable to accept the evidence of Mr. Pierce over that of the officer with regard to the issues surrounding the stop nor am I able to accept the evidence of the officer over Mr. Pierce with regard to those same issues.

In the result then, having considered the whole of the evidence, I am therefore unable to find that Mr. Pierce has met the onus required. I find that a breach of his rights under section 9 of the Charter has not been established on a balance of probabilities. However, if I am wrong, I find that the evidence should still not be excluded under section 24(2) of the Charter.

b) Was the breath test taken as soon as the officer formed a reasonable suspicion, and was the accused provided with a right to counsel? (Section 10(b) of the Charter)

[32] The trial judge found that the breath test was administered in a timely manner and that the 20 minute delay in administering the test did not infringe upon Mr. Pierce’s right to counsel without delay.

[33] Mr. Pierce’s evidence was that when he was asked to take the screening test he responded by saying that “That’s going to screw me. I just did two beer and three rum and coke within an hour.” The officer replied by telling him that they could wait with the test.

[34] Constable Ferguson, on the other hand, testified that initially when he asked Mr. Pierce if he had been drinking Mr. Pierce told him he had had two beers. He then asked Mr. Pierce to accompany him to his vehicle, where he read the breath screening demand. In response to being read the demand, Mr. Pierce responded “Well, I’m screwed, I’m going to fail, I know it.” Constable Ferguson testified that he then stated that if Mr. Pierce had only had two beers, with his size, it would probably be fine. At this point, he said that Mr. Pierce told him he had two beer and three rum and coke. Constable Ferguson testified that he was concerned about Mr. Pierce’s last consumption of alcohol and asked him when he had last had something to drink. Mr. Pierce replied “Right before you stopped me.”

[35] The trial judge found that whether she accepted the officer’s evidence with request to his request that Mr. Pierce provide a breath sample or whether she accepted the evidence of Mr. Pierce, in either case, the delay in administering the breath test was justified. She stated:

Constable Ferguson is aware from his training that there may be a mouth alcohol effect resulting in elevated readings if a screening test is conducted within 15 minutes of the consumption of alcohol.

If I accept the evidence of Mr. Pierce with regard to this issue then the officer was justified in delaying the screening test for at least 15 minutes because Mr. Pierce said that he, “just did two beer and three rum and coke within an hour.” With that admission in addition to the officer’s knowledge regarding mouth alcohol effect, he would have been criticized if he had not waited to conduct the test as the result may not have been reliable due to possible effect of mouth alcohol.

If I accept the officer’s evidence, it is my view that the delay in administering the screening test was also justified. According to Constable Ferguson, Mr. Pierce admitted having had two beers and three rum and coke and expressed the concern that he would fail the test. In these circumstances it was logical for the officer to ask when Mr. Pierce had had his last drink. This was in accordance with the officer’s knowledge of the effect of mouth alcohol and was to the benefit of Mr Pierce so that an accurate result on the screening test would be obtained. The officer cannot be criticized for the delay in the screening test.

[36] The trial judge concluded her decision concerning the timing of the breath tests and the resulting delay in advising Mr. Pierce of his rights by referring to the Ontario Court of Appeal decision in R. v. Bell, [2009] O.J. No. 1551 where the court stated:

To be clear, when there is a 15 minute delay for the purpose of obtaining a proper breath sample, the demand is valid and the delay is a justified limitation on the right to counsel under section 10 (b). The fact that the detainee or the officer had cell phones is therefore irrelevant.

Issues on the Appeal

1. The trial judge’s treatment of conflicting testimonies

[37] In her ruling on the voir dire, the trial judge stated that she was unable to accept the evidence of the Appellant over the evidence of the police officer and she was also unable to accept the evidence of the police officer over the evidence of the appellant. In the result, since the burden of proof on the Charter application was on the applicant on the balance of probabilities, she decided that the s. 9 Charter application failed.

[38] The appellant argues that it is not possible to accept two very conflicting versions of the evidence as equally believable. According to the appellant, the resolution of the conflicting evidence is the fundamental duty of the trial judge as part of normal trial function; otherwise the trial is not complete. The appellant argues that the appellant is entitled to a ruling on the evidence, failing which he is deprived of a fair trial.

[39] In my view, it was quite open to the trial judge to find both witnesses equally credible and still find no breaches. A court is not required to categorically prefer one conflicting viva voce testimony over the other. In this case, both witnesses were equally believable; therefore the onus was not met by the Appellant on the balance of probabilities.

[40] The appellant suggests that the case of R. v. Koochin, 2007 SCSC 1551, a summary conviction appeal decision of the Supreme Court of British Columbia is virtually on all four with this case. In the Koochin decision, the court stated:

Here there were two stories about when the arrest happened. The appellant and Mr. Shlakoff said it was before the ASD test, the constable said it was after the test. The learned trial judge’s reasons show that the judge felt that the conflicts in the evidence were such that he could not make the findings of fact necessary to decide when it was that the appellant was, in fact, arrested. That was not, in my view, an “unreasonable” conclusion. However, this does not address the real question, and that is whether the learned trial judge’s reasons allow for the sort of ‘meaningful appellate review” mandated by Sheppard[^1] and Thomas[^2].

[41] A review of the decision in Koochin reveals that the issue in that case was whether the reasons of the trial judge were sufficient to assess why it was that he felt he could not choose one story over another. The issue was not whether it is possible for a trial judge to accept two very different versions of the evidence as equally believable, or whether the resolution of the conflicting evidence is the fundamental duty of trial judge, failing which a party is deprived of a fair trial.

[42] I can find no authority for the position put forward by the appellant that a judge has a duty in every situation to reconcile the conflicting evidence which comes before the court. In this case, Mr. Pierce bore the burden of proof in his Charter application. He was unable to convince the trial judge that his evidence was to be preferred over that of the police officer. In the circumstances, the trial judge was entitled to find that he did not meet the onus on him to prove that there had been a violation of his Charter rights.

2. Sufficiency of Reasons

[43] In R. v. Sheppard, supra, the Supreme Court of Canada confirmed and defined a trial judge’s obligation to deliver adequate reasons. At para. 55, Binnie J. set out a number of propositions which purported to summarize the law with respect to the trial judge’s duty to set out reasons. Included in these propositions are the following:

56. Reasons acquire particular importance when a trial judge is called upon to address troublesome principles of unsettled law, or to resolve confused and contradictory evidence on a key issue, unless the basis of the trial judge’s conclusion is apparent from the record, even without being articulated.

57. The trial judge’s duty is satisfied by reasons which are sufficient to serve the purpose for which the duty is imposed, i.e., a decision which, having regard to the particular circumstances of the case, is reasonably intelligible to the parties and provides the basis for meaningful appellate review of the correctness of the trial judges’ decision.

[44] In my view, the trial judge met the duty placed on her to provide sufficient reasons. The voir dire concerned allegations of breaches under ss.9 and 10(b) of the Charter. After setting out the applicable onus on the voir dire, and noting the discrepancies in the testimony, the trial judge then proceeded to canvass factors relating to the credibility of the two witnesses, factors which included the consumption of alcohol and the timing of the notes made by each of them in relation to the incident. The judge also addressed concerns about the reliability of licence plate pictures tendered by the appellant during the trial, and noted that there may still have been fog on the rear window of the appellant’s automobile.

[45] At the conclusion of her discussion concerning the differences in the evidence of the two witnesses, she concluded with a finding of credibility, namely that both witnesses gave evidence in a “straightforward manner”. With respect to the issue of the sufficiency of reasons concerning findings of credibility, the Supreme Court addressed this issue in R v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26 where it stated:

Where a case turns largely on determinations of credibility, the sufficiency of the reasons should be considered in light of the deference afforded to trial judges on credibility findings. Rarely will the deficiencies in the trial judge’s credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal.

[46] In conclusion, it is my view that the reasons provided by the learned trial judge in this case met the aforementioned test set out in R. v. Sheppard.

3. Is the ruling of the trial judge that the appellant had not shown a Charter breach on a balance of probabilities contrary to the weight of the evidence?

[47] The appellant takes issue with the findings of the trial judge on the various factual and credibility issues which were argued in relation to the Charter breaches. In particular, the appellant argues :

a) The officer did not provide an adequate explanation to explain how he could have been behind Mr. Pierce’s vehicle at the stop light and yet did not stop the vehicle until Mr. Pierce had turned the corner and had almost reached his destination. According to the appellant, the only logical explanation is that the officer had targeted Mr. Pierce because he saw him leave the Roadhouse and this constitutes improper profiling. The appellant argues that the most logical explanation for the delay in pulling Mr. Pierce over is that that the officer saw Mr. Pierce leave the Roadhouse while he was still a considerable distance away and he did not catch up to him until much later.

b) The trial judge minimized the officer’s description of the amount of snow on the back window of the car.

c) The officer did not make any attempt to verify that the tinting on the side windows was in breach of the regulations, and yet used it as a reason for pulling over the accused. The court simply indulged the police officer on this point.

d) The officer did not satisfactorily challenge the assertion by the appellant that his rear license plates were visible and that he read the plate number to the dispatcher while seated in his vehicle.

e) The court’s only comment regarding mirrors was that the officer was aware of the provision in the Highway Traffic Act regarding an exception to the back window obstruction. There is no suggestion by the court of what, if anything turns on this fact such as vitiating his grounds to stop.

f) The officer used the delay in administering the Approved Screening Device to the prejudice of the accused. The fact that the officer chose to inform himself of when the accused had last consumed alcohol reinforces his argument that he saw the vehicle exit the Roadhouse and therefore knew that the delay would help his case.

[48] A review of the transcript of the trial reveals that the trial judge carefully reviewed the evidence. She concluded her review by stating that she was unable to accept the evidence of Mr. Pierce over that of the officer and vice versa. She had the benefit of seeing and hearing the witnesses and she was the in the best position to decide how much weight to give to the evidence. In my view, the trial judge adequately addressed and considered the conflicting evidence of the witnesses in relation to the above issues, and her decision is supported by the evidence.

4. Section 24(2) considerations

[49] The appellant argues that the s.24 (2) analysis would be a different exercise if the facts were resolved as opposed to unresolved and particularly if findings are made as submitted by the Appellant. I have found that there is an insufficient basis to challenge the trial judge’s findings of facts and credibility, and the weight which she attributed to the evidence. In the circumstances a further review of her section 24(2) analysis is unnecessary.

Decision

[50] For the above reasons, the appeal is dismissed. The sentence of the trial judge is confirmed.

E.J. Koke J.

Released: October 31, 2012

[^1]: R. v. Sheppard, [2002] 1 S.C.R. 869 [^2]: R. v. Thomas 2006 BCCA 4111