ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-55-AP
DATE: March 6, 2013
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
– and –
SYLVAIN GOUDREAULT
Respondent
Katherine Clarey, for the Appellant
Michael Davies, for the Respondent
HEARD: January 17, 2013
ON APPEAL FROM THE DECISION OF THE HONOURABLE JUSTICE Peter R. Adams of the ontario court of justice ON june 6, 2012, at Cornwall, ontario
SUMMARY CONVICTION APPEAL
mcnamara j.
[1] This is an appeal by the Crown of the acquittal of the respondent by Justice Peter R. Adams of the Ontario Court of Justice on June 6, 2012, on one count contrary to section to s. 253(1)(b) of the Criminal Code.
Factual Background Relevant to this Appeal
[2] On June 29, 2008, at 1:16 a.m., a traffic stop was conducted resulting from an expired validation tag on the respondent’s vehicle. The officer who made the stop conceded that he did not observe any bad driving before he made that stop, nor did he observe any indication of impairment. There were four males in the vehicle. The respondent was unable to produce a driver’s licence and verbally identified himself as Paul Goudreault. The officer, Constable Doyon, returned to his vehicle and queried the information received from the respondent which revealed very different physical descriptors than those which the officer noted on the respondent. The officer returned and made further inquiries regarding identity and the respondent ultimately admitted he was Sylvain Goudreault and that he had lied because he did not have a drivers licence.
[3] At 1:40 a.m. Constable Doyon arrested the driver for personation at which time he was handcuffed and placed in the rear of the police cruiser. Once in the cruiser the officer detected an odour of an alcohol coming from the driver’s breath at which point the driver admitted to having consumed “two beers”. At 1:44 a.m. the respondent was read the breath demand for the approved screening device, and subsequently a sample was obtained which registered a fail at 1:46 a.m. At 1:47 a.m. the respondent was read the caution and his rights to counsel.
[4] The constable confirmed that when he makes a stop in circumstances such as existed here, he usually checks for sobriety of the driver. He also confirmed that between 1:16 a.m. and the respondents arrest for personation at 1:40 a.m., he dealt with the respondent several times and at no point did he detect an odour of alcohol nor did he ask any question regarding the consumption of alcohol, prior to noting the odour when the respondent was in the back of the cruiser. No details were obtained concerning when the alcohol was consumed.
Issues
[5] The thrust of the Crown’s appeal is that the learned trial Judge made three errors:
a. that there was no reasonable suspicion in order to make a roadside screening demand pursuant s. 254(2) of the Code;
b. that the learned trial Judge erred in finding that the demand was not made forthwith;
c. that the learned trial Judge failed to conduct a thorough analysis pursuant to s. 24(2) of the Charter and erred in excluding the evidence.
Reasonable Suspicion
[6] S. 254(2), as it was at the time of the alleged offence, reads as follows:
Where a peace officer reasonably suspects that a person who is operating a motor vehicle or vessel or operating or assisting in the operation of an aircraft or of railway equipment or who has the care or control of a motor vehicle, vessel or aircraft or of railway equipment, whether it is in motion or not, has alcohol in the person’s body, the peace officer may, by demand made to that person, require the person to provide forthwith such a sample of breath as in the opinion of the peace officer is necessary to enable a proper analysis of the breath to be made by means of an approved screening device and, where necessary, to accompany the peace officer for the purpose of enabling such a sample of breath to be taken.
[7] The section requires that for the demand to be lawful there must be evidence the officer suspected that the accused had alcohol in his body, as well as evidence that would support the suspicion.
[8] The trial judge after correctly stating that the bar for establishing reasonable suspicion “is the lowest in the field” and that it must have some objective and subjective elements, found that there were no such grounds. At page seven of the decision he stated, in part, as follows:
...At 1:44 a.m. he was given the demand under s. 254.2. During this period of time, officer Doyon spoke with Mr. Goudreault on at least three occasions. I also accept his evidence that he regularly considers sobriety as one of his checks along with identification and documents. When arrested for impersonation, Mr. Goudreault told officer Doyan that he had two beers. There was no evidence or discussion as to when the beers were consumed or how they were consumed. Smell, Officer Doyan said, was only found after when Mr. Goudreault was in the police car and being arrested for impersonation. There was no indication or degree of smell.
[9] In my view this was an error on the part of the trial judge.
[10] The respondent’s counsel, Mr. Smith, submits that the test to satisfy the requirements of the section is not simply whether or not there is an odour of alcohol, but rather in determining whether there is an objective basis for the suspicion. Consideration must be given to the totality of the circumstances, including the factors that point away from such suspicion. He submitted that the trial judge did just that in the paragraph quoted above and that he was entitled to come to that conclusion.
[11] In my view reasonable suspicion requires only that the belief be one of a number of possible conclusions based on the supporting facts. The amount of alcohol, how it was consumed or the degree of smell on the individual’s breath are not required in developing a reasonable suspicion. (Ree R. v. Chipchar 2009 ABQB 562, [2009] A. J. No. 1058)
[12] In this case while it is true the alcohol was only detected when the respondent was in the cruiser, that was the first time the respondent was alone with the officer in a confined space. Prior to that he was in a vehicle with a number of other individuals with the window open. When the officer detected the odour in the cruiser that was sufficient both subjectively and objectively to establish reasonable suspicion. The matter was well put by the Ontario Court of Appeal in R. v. Lindsay, 1999 4301 (ON CA), [1999] 134 C.C.C. (3rd) 159 where at paragraph two the court stated:
The trial judge accepted the officer’s evidence that she smelled alcohol on the respondent’s breath. This observation led her to suspect that the respondent had alcohol in his body and she made the ALERT demand accordingly. An officer may make an ALERT demand where she reasonably suspects that a person who is operating a motor vehicle has alcohol in his or her body (s. 254(2) of the Criminal Code). There need only be a reasonable suspicion and that reasonable suspicion need only relate to the existence of alcohol in the body. The officer does not have to believe that the accused has committed any crime. We see no need to put a gloss on the words of s. 254(2). The fact that there may be an explanation for the smell of alcohol does not take away from the fact that there exists a reasonable suspicion within the meaning of the section.
Did the Trial Judge Err in Finding That the Demand Was Not Made Forthwith
[13] Five criteria must be considered in determining the immediacy requirement under s. 254(2) of the Criminal Code. Those criteria are set forth in the Ontario Court of Appeal decision of R. v. Quansah 2012 ONCA 123. At paragraphs 45 through 49 of that decision it states:
In sum, I conclude that the immediacy requirement in s. 254(2) necessitates the courts to consider five things. First, the analysis of the forthwith or immediacy requirement must always be done contextually. Courts must bear in mind Parliament’s intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.
Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion.
Third, “forthwith” connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee’s response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2).
Fourth, the immediacy requirement must take into account all the circumstances. These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement.
Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee’s s. 10(b) rights before requiring the sample. If so, the “forthwith” criterion is not met.
[14] In his reasons the trial judge stated as follows at page seven “...in Bernshaw, the Supreme Court said in 2005 that the demand itself does not mean immediately, however, even a flexible interpretation of viewing documents and sobriety does not consider a period of 28 minutes at the roadside as forthwith”. Clearly in coming to his conclusion on the forthwith issue, a very major factor was the total amount of time that had elapsed from the traffic stop until the time the ASD demand was made. That was indeed a total of 28 minutes. In my view, however, it was an error in calculating the forthwith requirement from the time of the traffic stop.
[15] As the Court of Appeal stated in Quansah at paragraph 52:
In my respectful opinion, articulation of the precise linguistic equivalent for “forthwith” is less important than a careful consideration of all the circumstances of the particular case. The legal context for this consideration is the objective that “forthwith” sets out, namely a prompt demand and an immediate response, ultimately taking no more than the time reasonably necessary for the prompt performance of the steps contemplated by s. 254(2).
[16] Considering all of the circumstances of this case there is no issue that the officer’s focus in the initial stages of this investigation was on the identification issue vis a vis the respondent. Reasonable suspicion to make an ASD demand had not yet been formed. That only occurred once the respondent was in the cruiser and the officer detected the odour of alcohol. The demand was four minutes later. That in my view was reasonably necessary in the circumstances. I am satisfied looking at all of the circumstances that the learned trial judge erred in concluding as he did and that in consequence there had been a breach of Mr. Goudreault’s s. 8 rights under the Charter.
[17] In his factum the respondent’s counsel raised another aspect of this issue that had not been raised at trial.
[18] Mr. Davies submitted that even if the trial judge was wrong in his reasons for finding that the demand was outside of the authority of s. 254(2) of the Code, he was nevertheless correct in his conclusion. The thrust of his argument is that under the wording of s. 254(2) in effect between January 1, 2003, to July 8, 2008 (and thus covering the date of this offence) a demand can only be made to a person who is operating a motor vehicle or who has the care or control of a motor vehicle. Counsel concedes that the relevant case law instructs us that some “passed signification” must be given to the words “is operating”, and who “has the care and control of a motor vehicle”. He submits, however, that same case law also establishes that passed signification does not extend to an individual who is under police detention in the back of a cruiser and thus no longer in control of the vehicle.
[19] He also advanced on appeal an argument under s. 10(b) of the Charter which had not been argued at trial.
[20] Because these issues had not been raised at trial I gave the crown and opportunity to respond in writing after the hearing. In her detailed materials crown counsel argued first that these new issues were not properly brought before this appeal court, and further that there was no merit to either argument for the reasons given.
[21] I find it unnecessary to deal with these issues as I have a determined that a new trial is necessary and thus these issues can be dealt with as a part of that hearing. A new trial is necessary because on my reading of the reasons no final finding was ever made as to whether the alcohol concentration exceeded 80mg in 100ml of blood, nor was I provided with a complete record of the trial proceedings. The parts of the trial record produced centered on the Charter issues and at least one day of the proceedings was not part of what was before me.
[22] In the result then the appeal is allowed and a new trial ordered.
Mr. Justice James E. McNamara
Released: March 6, 2013
COURT FILE NO.: 12-55-AP
CORNWALL, ONTARIO
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Appellant
– and –
SYLVAIN GOUDREAULT
Respondent
SUMMARY CONVICTION APPEAL
McNamara J.
Released: March 6, 2013