ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
– and –
Craig Vinet
Respondent
M. Humphreys, for the Crown
S. Friedman, for the Respondent
HEARD: May 29, 2013
REASONS FOR JUDGMENT
Justice M. Z. Charbonneau
1The Crown appeals against the acquittal of the respondent on charges of impaired driving and refusal to provide a sample of his breath in a roadside screening device, entered by the Honourable Mr. Justice D. Kent Kirkland, of the Ontario Court of Justice on June 15, 2012.
2The Crown relies on four grounds of appeal which are set out in Crown Counsel’s factum as follows:
a) Did the trial judge commit an error of law by concluding that Constable Kit did not subjectively or objectively have reasonable grounds to make the roadside screening device demand?
b) Did the trial judge commit an error of law or exceed his jurisdiction, by making a Charter ruling on a matter that was not properly before the court?
c) Did the trial judge commit an error in law by not providing any reasons for the exclusion of evidence pursuant to section 24(2) of the Charter?
d) Did he trial judge commit an error by failing to exercise a jurisdiction that he was obliged to exercise and/or by failing to observe the rules of natural justice by deciding the case without having afforded the Crown the right to be heard on the charge of impaired driving?
3The Crown brings this appeal pursuant to section 830 of the Criminal Code of Canada. As a result, this court does not have all the powers provided to the court when the appeal is brought pursuant to s. 813. Under the latter section, the appeal court has all the ancillary powers of the court of appeal by virtue of s. 822. When the appeal is pursuant to section 830, section 834 provides the following powers:
- (1) When a notice of appeal is filed pursuant to section 830, the appeal court shall hear and determine the grounds of appeal and may
(a) affirm, reverse or modify the conviction, judgment or verdict or other final order or determination, or
(b) remit the matter to the summary conviction court with the opinion of the appeal court,
And may make any other order in relation to the matter or with respect to costs that it considers proper
4For the first time during oral submissions, an additional issue arose. Both counsel agreed that if the appeal was allowed, this court would have to determine whether the matter should be remitted to the trial judge to complete the trial, or whether a new trial could and ought to be ordered. The Crown seeks a new trial. The respondent, while not arguing that this court does not have the power to order a new trial in proper circumstances, submits that the correct remedy, should the appeal be allowed, is to remit the matter back to Justice Kirkland to complete the trial in accordance with the directions of law provided by this court.
The Facts
5The following facts are substantially agreed to by both parties. The respondent consumed several alcoholic beverages at the Moxie’s Bar & Grill. When he left the bar, both the barmaid and the manager of the bar felt he should not be driving. They both raised that fact with the respondent who indicated he would not drive. At approximately 01:30 they saw the respondent back up his vehicle, hit the curb, drive onto the curb and drive away.
6The manager called the police describing the vehicle, the appearance of the driver and the licence plate number. At 2:28 a.m., Constable David Kit was dispatched to the intersection of Riverside Drive and Hunt Club Road regarding a “possible intoxicated driver”.
7Constable Kit testified he was provided the following information: a white male had consumed drinks at Moxie’s, he had vomited, staff had asked if he was driving and he had indicated he was not, but had observed him drive away in a grey BMW SUV, plate O3V 6O9 east bound on Hunt Club Road.
8Constable Kit conducted a check of the plates and learned they belonged to a green BMW SUV owned by the respondent who resided at 3754 Autumn Street, Ottawa. Constable Kit travelled to that address arriving at 2:35 a.m. While parked and waiting in the vicinity, he saw the vehicle in question. The respondent was the sole occupant. Constable Kit activated his emergency lights and stopped the BMW on the roadway. He approached the driver’s side and told the respondent he was investigating a possible impaired driver call. He made the following observations: the respondent appeared calm and coordinated, he smelled the odour of an alcoholic beverage coming from the respondent’s breath.
9While waiting for a roadside screening device to be delivered, he asked the respondent to drive his vehicle into the driveway of his home.
10Constable Kit testified that on all the information he had he formed a reasonable suspicion that the respondent had consumed alcohol.
11At 3:06 a.m. and 3:07 a.m. Constable Kit requested that the respondent provide him with a breath sample and both times the respondent refused.
Reasonable grounds to make the demand
12The appellant submits that the trial judge made an error of law by applying the wrong standard when he decided that the officer did not have reasonable grounds, because he based his decision on the fact that the officer did not believe the respondent was impaired or had committed a crime, while the correct standard only requires that the officer have a reasonable suspicion that the respondent has alcohol in his body.
13The appellant contends that if the correct standard had been applied, the information that the Constable had from the dispatcher, and the odour of alcohol he smelled on the breath of the respondent, was sufficient to find that the Constable had the required belief and that his belief was both subjectively and objectively reasonable.
14In reply, the respondent submits that the trial judge made certain findings of facts and also determined that Constable Kit’s evidence was unreliable which entitled him to conclude the officer did not meet the subjective-objective test giving him the lawful authority to make the demand.
15The respondent contends that the trial judge rejected the Constable’s evidence as unreliable which would include his evidence that he smelled an odour of alcohol on the respondent’s breath. Therefore there was no evidence upon which the Crown could meet the required subjective-objective test.
16I agree with the appellant that the trial judge was clearly under the erroneous impression that to meet the test the evidence had to show that the officer believed the respondent was probably impaired while operating his vehicle. This is certainly not the test the prosecution must meet. All Constable Kit needed to have was the subjective belief that the respondent had alcohol in his body and that that belief was objectively reasonable. Moreover, the test could be met on the simple basis that the officer had smelled the odour of alcohol on the respondent’s breath: R. v. Nahorniah 2010 SKCA 68, [2010] S.J. No. 300 (CA); R. v. Lindsay 1999 4301 (ON CA), [1999] O.J. No. 870 (CA).
17When read as a whole, I agree with the appellant that the trial judge’s reasons indicate that he applied the wrong standard and he thereby committed an error of law. In providing his final conclusion as to why he was deciding that Constable Kit did not have the required belief, the trial judge states:
“…I want to then turn to the argument that has been made by Mr. Edelson as to the reasonable grounds for the use of the approved screening device.
I looked back over my notes. Again, I believe they were accurate on this point. Officer Kit said that the information he received from dispatch was a location, that there was a possible impaired driver who had had three drinks at Moxie’s, who had vomited, and had been told not to drive by the staff at Moxie’s, and that was followed by a physical and clothing description of an individual. When Constable Kit encountered the accused he spoke to him while Mr. Vinet was still in his car, and Constable Kit said:
“I smelled alcohol on his breath while he was still in his car.”
When asked further questions, not just with respect to when he was in his car but when he was told to get out of the car to walk to the cruiser the Constable acknowledged there was no evidence of impairment. There were no indicia of impairments (sic) such as the glossy eyes, slurred speech, although the work woozy was used at one point. I am not quite sure what interpretation to put on that. There was no instability in standing or in motion. Also, he acknowledged that Mr. Vinet stopped his vehicle immediately upon the police being in front of him. At that point he decided that he was going to request the approved screening device to be brought to him for the purpose of proceeding with the demand that he made.
What surprises me considerably, although it was never really raised in any examination or cross-examination, if Constable Kit had suspicion that there was a possible impaired driver or a driver who was violating some aspect of section 253, why would he tell him to get in his car and drive into the driveway? That is effectively asking him to commit a criminal act.
Again, as I looked back over my notes I saw that Constable Kit referred to the driver as sick and that he had vomited, and I could not see where the word impaired, or drunk, or words to that effect were used.
On that basis, I am satisfied the Crown has failed to prove a reasonable demand for the approved screening device and for the test that was requested thereafter.” [my emphasis]
18I cannot accept the respondent’s submissions that the trial judge had effectively rejected the constable’s evidence. For one, the trial judge clearly stated that Constable Kit was a credible witness and was not trying to deceive the court. His remarks concerning the unreliability of his evidence related to details which he had forgotten until his memory was prompted during cross-examination. That arose in the context of the submission of the defence counsel that the omission in his notes constituted a breach of section 7 of the Charter.
19At page 65 and 66 of the transcript, the trial judge states:
“I am not going to add the word credible because particularly in this case I don’t believe that Constable Kit was in any way attempting to be other than credible. I however, and in the evidence that he gave and I will comment on that in a moment. But, I do make it clear that I feel there was nothing that Constable Kit said that was in any way incredible on his part or an attempt to deceive the findings of this Court.”
20It is clear that the issue of the unreliability of the evidence related to the issue of the notes at pages 67-69, the trial judge said:
“The whole issue of notes is an awkward issue. Even Mr. Edelson conceded that an officer is not going to be taking notes as he approaches a vehicle or as someone is speaking because he simply cannot record everything. Certainly, if the Court concludes that an officer has omitted something, or improperly recorded something, or is intentionally vague in his notes for the purpose of perhaps diminishing the value of disclosure the Court could certainly find in that case that the officer’s testimony would be very questionable and in all probability rejected.
As I said here, I do not believe Officer Kit was trying to give inaccurate or vague information through the disclosure process but simply perhaps his training, the fact that he had been on the job for ten years and always did it that way type of attitude perhaps is a reason for the vagueness that I have mentioned a moment ago about the father being present, and where the documents came from, and when detention took place.
Questionable recording and questionable recollection certainly lends suspicion that the officer in his careless recording or unprofessional recording raises doubts as to the officer’s reliability in his core testimony. Mr. Edelson has stated to the Court that where he is not provided with accurate information through the disclosure package it impinges on the defence’s ability to make full answer to the charges before the Court. I am going to come back to that in a moment because I want to then turn to the argument that has been made by Mr. Edelson as to the reasonable grounds for the use of the approved screening device.”
21He then proceeded to decide the issue of reasonable grounds to request a sample of breath as indicated above.
Did the trial judge exceed his jurisdiction?
22The trial judge found that the accused’s section 7 Charter rights were breached in that insufficient and incomplete information that was available to him was not made available to the defence and in particular the Constable failed to include this information in his notes.
23I do not agree with the appellant that the respondent did not at anytime raise a Charter breach on the basis that the notes were insufficient. I find that the submissions were somewhat convoluted as a number of issues were lumped together. However, it cannot be said that the issue did not come up during defence’s counsel submissions. I am not prepared to give effect to this ground of appeal. Having said that, I must not be deemed to agree with the trial judge that there was a breach of the respondent’s Charter rights on that basis. Moreover, the brief reasons given by the trial judge for having found this breach were manifestly insufficient to allow appellate review and to then permit a valid of evaluation of its effect on the possible exclusion of evidence under s. 24(2).
Did the trial judge error in law by not providing any reasons explaining his decision to exclude evidence pursuant to section 24(2)?
24It is a well-established principle that a trial judge must provide sufficient reasons to enable appellate review: R. v. Shepherd [2009] Q.S.C.R. 527, here the trial judge provided no reasons at all.
25A determination under s. 24(2) requires a complex balancing of many factors in order to determine whether the evidence will be excluded. In R. v. Grant [2009] S.C.R. 353, the Supreme Court states:
When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.
26I find the trial judge’s failure to embark upon this exercise and then proceeding to exclude the refusal to provide a breath sample, was an error of law. I am of the view that if a proper analysis had been undertaken, there is reason to believe that the result would have been different.
Did the trial judge fail to observe the rules of natural justice by deciding the impaired driving charge without affording the Crown the right to be heard?
27The trial judge summarily dismissed the impaired traffic charge without allowing Crown Counsel the opportunity to make submissions. The respondent concedes that this was an error of law. The respondent submits that the matter should be remitted to the trial judge in order to allow the Crown to make submissions.
Remedy
28Although the power of this appeal court under s. 830 is definitely not as wide as those of the court when the appeal is taken under s. 814, both counsel agree that this court has the power to order a new trial pursuant to the provisions of s. 830 in proper circumstances. It must be remembered that appeals under this section are no longer by stated-case as was the case when the court of appeal decided R. v. Giambalvo 1982 2043 (ON CA), [1982] 39 O.R. (2nd) 588.
29I agree with counsel for the respondent that remitting the matter back to the trial judge should be the court’s initial consideration and that ordering a new trial should occur only when the circumstances specifically requires a new trial. However, remitting the matter back to the trial judge means that the trial can effectively continue. This is not the case here in relation to the decisions to exclude evidence and to dismiss the impaired driving charge. Those were final decisions which are not amenable to reconsideration.
30I have come to the conclusion that a new trial is necessary for the following reasons:
The trial judge has already finally decided the issue of whether the respondent was driving while impaired. In these circumstances, further submissions by the Crown will not allow a meaningful opportunity for the Crown to be heard and justice will not appear to be done. I also agree with the Crown that Justice Kirkland has lost jurisdiction to deal with the matter in the circumstances.
Similarly, the trial judge has already decided on a final basis that an analysis under section 24(2) justifies exclusion. His error was not to tell us why. If he simply provides reasons for doing so at a continuation of the hearing, it will likely result in a further appeal.
Although remitting the matter to the trial judge may sometimes save time and effort for the litigants and save precious judicial resources, in these particular circumstances, it is unlikely that it will have that effect.
Conclusion
31The appeal is allowed, the acquittal is set aside and a new trial is ordered.
M. Z. Charbonneau
Released: June 5, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Appellant
– and –
Craig Vinet
Respondent
REASONS FOR JUDGMENT
Justice M. Z. Charbonneau
Released: June 5, 2013