ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-A9075
DATE: 2013/03/28
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
ESTHER NEIL
Appellant
Louise Tansey-Miller, for the Crown
Neha Chugh, for the Appellant
HEARD: March 27, 2013
REASONS FOR JUDGMENT
Aitken J.
Summary Conviction Appeal
[1] Esther Neil appeals the judgment of Renaud J. on April 30,2012, in which he convicted her under s. 253(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46 (“Code”) for having operated a motor vehicle on March 18, 2011 with a blood alcohol level of “over 80”.
[2] For the reasons that follow, I grant the appeal, set aside the judgment at trial, and enter an acquittal.
Issues on Appeal
[3] Although a number of issues were raised on the appeal and dealt with in the facta submitted by both Defence and Crown counsel, the key issue on the appeal was whether the trial judge made an error in law in regard to his interpretation of the requirements under s. 254(2)(b) of the Code and the results that follow if the demand for a breath sample is not made “forthwith”.
Facts Not in Dispute
[4] At approximately 2:30 a.m. on March 18, 2011, the Ottawa Police Service was advised by personnel at a McDonald’s restaurant that a customer driving a vehicle in the drive-through lane appeared to be intoxicated. Constables Thomas and Poitras, in separate cruisers, were dispatched to the scene, arriving at approximately 2:40 a.m. Neither officer saw the vehicle at the McDonald’s restaurant. While searching the immediate vicinity, Constable Thomas observed a vehicle, matching the description provided by dispatch, pulling into a parking spot in front of a nearby Mac’s Milk. He parked his cruiser beside the driver’s side of the vehicle and Constable Poitras parked his cruiser beside the passenger side of the vehicle. Both constables exited their vehicles – Constable Thomas going to speak to the driver, Esther Neil, and Constable Poitras going to speak to the passenger, Rachel Savoie.
[5] Constable Thomas’s evidence, which was accepted by the trial judge, was that as soon as Ms. Neil started to answer his questions, he could smell alcohol on her breath and therefore had reasonable grounds to suspect that she had alcohol in her body. That would have happened at 2:41 a.m. or within a minute or two thereafter. That was not in dispute at trial, and that finding was not challenged on appeal.
[6] At 3:05 a.m., Constable Thomas read the roadside demand directly from his duty book and the roadside screening test was performed on Ms. Neil immediately after the demand. The result was a fail.
[7] Constable Thomas’s evidence was that between 2:41 a.m. and 3:05 a.m., he reviewed Ms. Neil’s driver’s licence, car registration, and insurance documents; he checked the Ministry of Transport documents relating to her on the computer in his cruiser; he read five or six pages of those documents; and he made notes in his duty book. When pressed as to why he had undertaken these tasks without first proceeding with the roadside breath test, he responded that he did not know Ms. Neil, he did not know if she might present any personal safety issues, and he wanted to understand whom he was dealing with before doing the roadside test.
[8] Constable Thomas’s evidence was that Ms. Neil was polite, cooperative, and compliant through his interactions with her and was not displaying any abnormal emotions. He observed nothing that led him to suspect that Ms. Neil, or Ms. Savoie, would put him or his colleague at risk. He saw no evidence of the presence of any weapons. Constable Poitras was close by at all times and ready to assist him.
[9] It is not in dispute that Constable Thomas had tested the screening device at the beginning of his shift, the device was operating properly, and it was ready to be used at the commencement of his interactions with Ms. Neil.
[10] Between 3:05 a.m. and 3:16 a.m., Constable Thomas continued to familiarize himself with the information gleaned from his searches, he made further notes in his duty book, and he spoke with Constable Poitras about arranging for Ms. Neil’s vehicle to be towed.
[11] At 3:16 a.m., Ms. Neil was arrested. From 3:18 a.m. to 3:20 a.m., Constable Thomas cautioned her and advised her of her rights. At 3:25 a.m., he made a demand for a breathalyzer test. By 3:30 a.m., he was taking her to the nearest station. Ms. Neil was given the opportunity to speak to a lawyer. Subsequently, she underwent two breathalyzer tests, which she failed. To support the charge, the Crown wished to rely on the results of those tests. The Defence challenged the admissibility of the test results on a number of grounds – the most compelling of which was the failure of Constable Thomas to demand the roadside sample “forthwith”.
[12] After Constable Poitras, Constable Thomas, and Esther Neil had testified on the voir dire, and Defence counsel had made his submissions in regard to both the voir dire and the trial proper, Crown counsel had the following interchange with the trial judge:
MR. RAMSAY: I only see there being one real issue with this case, which is whether or not the demand was made forthwith at the scene. And I’m not in a position to argue that it was, Your Honour. Uh, and that being that the grounds or the suspicion that there be any alcohol in her system could have come as early as 2:41 in the morning, and that demand would have been made 24 minutes later. Uh, attempts were made by both defence counsel and myself to, to figure this out and help shed light on it for the Court, and it’s still problematic to say exactly what transpired in those 24 minutes. The reason that it took 24 minutes I do believe the officer and believe the Court should believe the officer when he says he’s doing this for safety reasons. Uh, that certainly conflicts with, um, Ms. Neil’s evidence that she [was] enabled or allowed to reach into a glove compartment over a passenger and into the back seat without direct officer’s supervision or even the officer offering to do it for himself. Uh, but it is fatal to the Crown’s case that, uh, there’s 24 minutes that are by and large unexplained or certainly don’t meet the Supreme Court’s requirements in R v. Woods.
THE COURT: You’re, you’re asking me to find in favour of your colleague?
MR. RAMSAY: Correct.
THE COURT: Thank you. I’ll attempt to address the issues as they’ve been presented to me. [A]lthough I’m going to acquiesce in the Crown’s submission, I have difficulty on the facts agreeing with the, uh, the Crown’s submission.
[13] I take from this interchange that Crown counsel was making an admission on the record that the Crown had failed to prove that the roadside test had been demanded and administered “forthwith” after Constable Thomas had reasonable grounds to suspect that Ms. Neill had alcohol in her body, as required by s. 254(2)(b) of the Code, and the trial judge, reluctantly, accepted this admission.
Trial Judge’s Reasons
[14] The trial judge proceeded immediately to give his reasons for judgment regarding the “forthwith” issue. He started by reviewing the evidence of Ms. Neil. He then considered the five factors that a court must consider in determining whether the immediacy requirements of s. 254(2) have been met, as set out by LaForme J.A. in R. v. Quansah, 2012 ONCA 123, 286 C.C.C. (3d) 307, at paras. 45-49. In doing so, he reviewed the evidence of Constable Thomas and repeated a number of times that he did not see anything extraordinary regarding what Constable Thomas said he did between 2:41 a.m. and 3:05 a.m., when the demand was made and the test administered. The trial judge then went on to state:
But in fairness, looking at the evidence before the Court, it can be said that the time stretched out as long as Crown counsel concedes it [did], defence counsel contends that it did, uh, which, of course, is contrary to the testimony of Miss Neil, if no one else.
In the circumstances, given that admission, we then have a situation that I have to find that, uh, whether 24(2) [of the Charter] is engaged. In these circumstances, as I take it, the Crown is asking me to find that I ought to, uh, refuse to accept the certificate [regarding the breathalyzer results], given your concession.
[15] Crown counsel responded that he had not addressed his mind to s. 24(2) of the Charter. His concession had been with respect to the statutory requirements under s. 254(2) of the Code. Clearly, Crown and Defence counsel were surprised that the trial judge was proceeding to consider s. 24(2) of the Charter after the Crown had conceded that the requirements of s. 254(2)(b) of the Code had not been met, and neither counsel was prepared to make arguments regarding s. 24(2) in light of the trial judge’s acceptance, albeit reluctant, of the Crown’s concession regarding s. 254(2)(b).
[16] The trial judge went on to critique the evidence of Ms. Neil and the actions of Constable Thomas. He then, once again, asked Crown counsel for his submissions regarding s. 24(2), to which Crown counsel responded: “I don’t see the point. I don’t see how the samples are being excluded based on s. 24(2). Again, my position is based on the statutory requirement in R. v. Woods.”
[17] The trial judge continued to seek the input of counsel regarding s. 24(2) and the issue of making a breathalyzer demand “as soon as practicable” under s. 254(3)(a)(i) of the Code.
[18] The trial judge then started oral reasons for judgment by addressing the issue of whether the breathalyzer test was conducted “as soon as practicable” under s. 254(3)(a)(i) of the Code, and he decided that it had been. The trial judge then returned to the first issue as to whether the roadside test had been demanded “forthwith”. He started by referring to the Crown’s concession that “the forthwith requirement is not met”. He equated this with a Charter breach which he characterized as “technical”. He defined the Charter breach as being: “a failure by the police to take pains in writing out or using their instrumentation to record correctly when certain things began”. He went on to find, as a matter of fact, that: “the Crown has failed to show that there was not an appropriate opportunity for the lady to contact a lawyer”. He then added: “I accept the concession of the Crown but I simply want to make it obvious that, in my view, in the circumstances before me, the evidence of the two police officers, and certainly the evidence of Officer Thomas is impressive in that respect that he acted with alacrity”. At this stage, it is unclear what the trial judge’s reasons are referring to: the requirements of s. 254(2)(b) of the Code, the requirements of s. 254(3)(a)(i) of the Code, a breach of Ms. Neil’s rights under s. 10(b) of the Charter, or the application of s. 24(2) of the Charter.
Analysis
[19] It would appear that the trial judge considered Constable Thomas’s failure to demand the roadside test “forthwith”, as conceded by Crown counsel, to be a breach of Ms. Neil’s Charter rights that then required the court to undertake an analysis under s. 24(2) of the Charter. After referring to R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the trial judge concluded that, to exclude the breathalyzer test results in the circumstances of this case, would bring the administration of justice into disrepute. Consequently, he admitted this evidence and convicted Ms. Neil.
[20] It was an error of law on the part of the trial judge to not rule the breathalyzer results inadmissible as soon as it had been conceded by the Crown, and accepted by the trial judge, that the statutory requirements of s. 254(2)(b) of the Code had not been met. The breathalyzer test had been demanded on the basis of Ms. Neil having failed the roadside breath test. As stated by Fish J. in R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205 at para. 47:
It is common ground that the results of the ASD test and of the subsequent breathalyzer test were inadmissible against the respondent if the initial breath sample provided by him was neither voluntary nor obtained under the statutory authority of s. 254(2) of the Criminal Code.
[21] Since the initial roadside test was not conducted in accordance with the requirements of s. 254(2)(b) of the Code, its results could not be relied on to provide the grounds for the subsequent breathalyzer demand. In the absence of grounds for the subsequent breathalyzer tests to be conducted, the results from those tests were inadmissible.
Disposition
[22] The conviction entered by the trial judge is set aside and an acquittal is entered in its stead.
Aitken J.
Released: March 28, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
ESTHER NEIL
Appellant
REASONS FOR JUDGMENT
Aitken J.
Released: March 28, 2013