SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-12-10000084-AP
DATE: 20130627

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Appellant

– and –

IAN MACLEAN

Respondent

Rick Nathanson, for the Appellant

Peter Copeland, for the Respondent

HEARD: January 22, 2013

On appeal from the acquittal entered by Justice E.N. Libman of the Ontario Court of Justice on June 27, 2012

MacDonnell, J.

[1] On June 26, 2012, the respondent appeared in the Ontario Court of Justice in Toronto and was arraigned on an information charging that on the 14th day of March, 2011 he operated a motor vehicle having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, contrary to s. 253(1)(b) of the Criminal Code.

[2] The Crown elected to proceed by way of summary conviction and the respondent pleaded not guilty. Prior to trial, the respondent had filed an application under s. 24(2) of the Canadian Charter of Rights and Freedoms seeking to have evidence of the results of Intoxilyzer tests excluded on the basis of alleged violations of his rights under ss. 8 and 9 of the Charter. On consent, the evidence pertaining to the Charter application was blended into the evidence called by the Crown on the trial itself. At the conclusion of the Crown’s evidence, the respondent elected to testify solely in relation to the Charter application.

[3] At the conclusion of the respondent’s testimony, the parties made submissions in relation to the application to exclude the Intoxilyzer results. After hearing those submissions, the trial judge ruled that the Intoxilyzer results had been obtained in a manner that infringed the respondent’s rights under ss. 8, that to admit them could bring the administration of justice into disrepute, and thus that they should be excluded pursuant to s. 24(2). In the absence of the Intoxilyzer results, the Crown’s case collapsed and the trial judge entered a verdict of acquittal.

[4] The submission of the Crown is that the trial judge erred in law in finding a violation of s. 8, and alternatively erred in holding that the admission of the evidence could bring the administration of justice into disrepute. In my opinion, the Crown is entitled to succeed on its first ground and thus it is unnecessary to consider the second.

A. The Relevant Evidence

[5] I will refer to the evidence only to the extent necessary to address the submissions made on this appeal.

[6] At about 12:45 a.m. on March 14, 2011, officers with 14 Division of the Toronto Police Service set up a R.I.D.E. spot check under the supervision of Sgt. Joe Male in the southbound lanes of Spadina Avenue, near the on-ramp for the Gardiner Expressway. This location is a few minutes south of the Entertainment District. Sgt Male testified that he supervises approximately forty R.I.D.E. spot checks in 14 Division annually. The position of them varies. One of the reasons why this particular site was chosen was that it was one where impaired drivers leaving the Entertainment District might be encountered.

[7] Spadina Avenue has three southbound lanes at this location. For the purposes of the spot check, the officers blocked the right and centre lanes with their cruisers. The object was to funnel southbound traffic to the open left lane. Sgt. Male’s cruiser was parked in the middle southbound lane with its emergency lights flashing.

[8] At approximately 1:22 a.m., the motor vehicle operated by the respondent approached the spot check from the north. The respondent had to slam hard on the brakes to avoid rear-ending Sgt. Male’s cruiser. Sgt. Male approached the respondent’s vehicle. Before the officer had a chance to speak, the respondent volunteered that he had had a beer about 25 minutes earlier. When the respondent made that utterance, Sgt. Male could detect a strong smell of an alcoholic beverage. Sgt. Male acknowledged that it was possible that the respondent was coming from one of the bars and restaurants in the Entertainment District, but he also stated that he did not know where the respondent had been. He directed the respondent to pull over to the curb. At curbside, he asked for the respondent’s driver’s license. He noted that the respondent’s eyes were red and blood shot. Sgt. Male made a proper demand that the respondent provide a sample of breath into an approved screening device (ASD). The respondent repeated that he had had a beer 25 minutes earlier. Male asked the respondent if it was just one beer, and the respondent said yes.

[9] Sgt. Male escorted the respondent to one of the police cruisers where he retrieved an ASD, specifically a Drager Alcotester. He put a fresh mouthpiece into the ASD and explained its operation to the respondent. The ASD had been calibrated less than two weeks before this date and in Sgt. Male’s opinion it was in proper working order. The respondent provided a suitable sample of his breath into the device, and it registered a “fail”. Sgt. Male testified that based on that result “I believe[d] that [the respondent] had more than 80 milligrams of alcohol per 100 millilitres of blood in his system at that time.”

[10] Because he was the officer supervising the R.I.D.E. spot check, Sgt. Male was required to remain at that location. Accordingly, he advised Constable Pileggi that the respondent had registered a “fail” on the ASD and directed him to place the respondent under arrest for “over 80” and to take him to nearest breathalyzer technician for the purposes of obtaining breath samples.

[11] In accordance with that direction, Constable Pileggi arrested the respondent, informed him of his right to counsel, made a proper Intoxilyzer demand, and transported him to the Traffic Services facility. For the purposes of this appeal, it will suffice to say that within the statutorily prescribed time the respondent provided two suitable samples of his breath into an approved instrument, and that the analysis of those samples revealed a blood/alcohol concentration in excess of the legal limit.

[12] Although he had been a supervisor at many R.I.D.E. spot checks, Sgt. Male was, as he put it, “not a traffic man”. He had been trained in relation to the proper use of an ASD when he was a cadet, some 14 years earlier, but he had not had any subsequent training in that respect. In cross-examination, counsel for the respondent questioned Sgt. Male as to his awareness of the possibility that residual mouth alcohol could affect the accuracy of a reading registered by the ASD, and specifically that it could produce a false ‘fail’. Sgt. Male testified that he was not aware of that. The cross-examination included the following:

Q. And part of the proper operating procedure is that if an individual has recently consumed alcohol, it’s necessary to wait a period of time so that any residual mouth alcohol can be absorbed into the blood stream, is that correct?

A. I don’t recall that.

Q. So you don’t recall anything about recent consumption of alcohol interfering with the proper operating… operation of the device?

A. No, I don’t, I don’t.

Q. Well, I’m going to suggest to you that the proper operating… I should say the proper operation of the Drager Alcotest requires an individual, according to the manufacturer’s instructions, to wait at least 10 minutes since that individual’s last drink. You weren’t aware of that?

A. No, I’m not (unintelligible) on that.

Q. Would you have occasion at a RIDE check point to ask an individual as to when their last drink was?

A. Could I… I don’t ask that, no. I know it is asked sometimes, but I don’t ask that.

[13] The respondent testified on the Charter application. He contradicted Sgt. Male in relation to a number of details, including with respect to what he told Male in relation to the timing of his last drink. I do not propose to review the respondent’s evidence. The trial judge found that Sgt. Male was an “extremely…honest and candid” witness and that the respondent was not credible. To the extent that the evidence of those two witnesses was in conflict, he accepted the evidence of Sgt. Male.

B. The Argument at Trial

[14] In support of his application to exclude the Intoxilyzer results, counsel for the respondent at trial advanced two main arguments. First, he submitted that the officer who arrested the respondent, Constable Pileggi, had insufficient information upon which to effect the arrest. Second, he submitted that because of Sgt. Male’s failure to advert to the danger of residual mouth alcohol, the “fail” result on the ASD could not provide reasonable grounds to believe that the respondent was ‘over 80’ and could not provide lawful grounds for an arrest or for a demand for Intoxilyzer samples.

C. The Decision of the Trial Judge

[15] The respondent’s first argument turned largely on an assessment of the credibility of Sgt. Male and Constable Pileggi, on the one hand, and the respondent, on the other. The trial judge resolved that issue in favour of the officers and against the respondent. For the purposes of this appeal, I need not discuss that argument further.

[16] Counsel for the respondent at trial frankly acknowledged that the success or failure of his second argument depended on whether the trial judge accepted Sgt. Male’s evidence that the first thing that the respondent said to him was that he had had a beer about 25 minutes earlier. If the trial accepted that evidence, counsel conceded, “then it would appear that the drink was 25 minutes ago which is outside the prescribed waiting period so to speak for these devices, in which case that becomes a non-issue as well.” [emphasis added] The trial judge did accept Sgt. Male’s evidence, but he did not accept that the failure to advert to the possibility of residual mouth alcohol was irrelevant. He stated:

I accept without reservation that McLean made this utterance of alcohol consumption to the officer. The issue, however, becomes what is the legal effect in terms of Mr. McLean’s Charter rights.

Sergeant Male, as I indicated, impressed me as one who testified with an extreme degree of candour and forthrightness. He testified to the court that notwithstanding his training of some 14 years ago as to the working of a roadside device, he was not alive to the issue of residual mouth alcohol. I accept the Crown’s submission that an officer need not always ask, nor must an officer act on the statement made by a defendant as to what he or she states as alcohol consumption.

However, there was a reason in this case having regard to not only the setup of the R.I.D.E. machine, the proximity of the stop, the interactions with the defendant, the driving leading up to the roadside testing at the R.I.D.E. program that, in my respectful view, required Sergeant Male to specifically advert to the issue of recent alcohol consumption.

The fact that Sergeant Male did not do so in making this demand in the circumstances that he did constituted a violation of the defendant’s section eight rights. He did not, specifically, address both the subjective and the objective basis that underlies the making of a demand, which then exposes the defendant to the consequences of the state capture of one’s breath. [emphasis added]

[17] Having found a violation of s. 8 of the Charter, the trial judge went on to consider whether the evidence should be excluded under s. 24(2). He held that the violation was serious and that it had a significant impact on the respondent’s Charter-protected interests. He acknowledged society’s interest in a trial on the merits, but on balance, he concluded, the evidence should be excluded.

D. Discussion

[18] The narrow question at the core of the respondent’s claim of a breach of his rights under ss. 8 and 9 of the Charter was whether, in the particular circumstances of this case, the ‘fail’ reading on the ASD afforded Sgt. Male reasonable grounds to believe that the respondent had been operating a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of his blood. The test to be applied in answering that question is well-established. In R. v. Wang, 2010 ONCA 435, at paras. 14 to 17, Rouleau J.A. stated:

The test for deciding whether there are reasonable and probable grounds includes both a subjective and an objective component: (i) the officer must have an honest belief that the suspect committed an offence under s. 253 of the Criminal Code, and (ii) there must be reasonable grounds for this belief: R. v. Bernshaw, 1995 150 (SCC), [1995] 1 S.C.R. 254 at para. 48.

[The] Supreme Court of Canada, in R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, has provided useful guidance on the nature of the test and the test itself in cases where a court is called upon to decide whether a police officer had reasonable and probable grounds to believe that a motorist has committed an offence under s. 253 of the Criminal Code.

In short, Shepherd explains that where a court is satisfied that the officer had the requisite subjective belief, the sole remaining issue is whether that belief was reasonable in the circumstances. [emphasis added]

[19] In relation to whether an officer’s subjective belief was reasonable, the test is whether “a reasonable person placed in the position of the officer [would] be able to conclude that there were indeed reasonable and probable grounds for the arrest”: R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, at paragraph 17.

[20] With respect, the trial judge failed to approach the question before him as required by those authorities. Nowhere in his reasons did he address (i) whether Sgt. Male honestly believed, based on the ‘fail’ result on the ASD, that the respondent was committing the offence of driving ‘over eighty’, or (ii) whether a reasonable person standing in Sgt. Male’s shoes would have agreed that there were reasonable grounds for that belief. Making all due allowance for the use of judicial shorthand in delivering oral reasons, the trial judge’s statement that Sgt. Male “did not… address both the subjective and the objective basis that underlies the making of a demand” cannot reasonably be read as an application of the proper test.

[21] As I have said, Sgt. Male’s testimony was that based on the result of the screening test “I believe[d] that [the respondent] had more than 80 milligrams of alcohol per 100 millilitres of blood in his system at that time.” The trial judge found Sgt. Male to be a completely credible witness. In those circumstances, had the trial judge asked whether Sgt. Male honestly believed that the respondent had been driving ‘over eighty’ he could only have concluded that Sgt. Male did have that belief. The real issue was whether the belief was objectively reasonable. In other words, would a reasonable person standing in Sgt. Male’s shoes have agreed that there were reasonable grounds for it.

[22] The potential for residual mouth alcohol to adversely affect the reliability of ASD results is well known among those engaged in the detection, prosecution and defence of drinking and driving offenders. It is well established that where there is credible evidence of alcohol consumption within the 15 to 20 minutes preceding the administration of the ASD test, a police officer may briefly delay the test in order to obviate the possibility of residual mouth alcohol producing a false ‘fail’. Where there is no such evidence, however, the officer is under a statutory duty to administer the test forthwith.

[23] I accept that a reasonable person standing in Sgt. Male’s shoes would be one who was aware of the residual mouth alcohol issue. The question that the trial judge was obliged to consider, therefore, was whether that reasonable person, looking at the circumstances of which Sgt. Male was aware or should have been aware, would have regarded the ASD result as reliable.

[24] On this record, there could only have been one answer to that question: the respondent twice told Sgt. Male that his last drink was 25 minutes earlier, and there was no evidence of more recent consumption. The fact that the R.I.D.E. checkpoint was set up close to the Entertainment District did not constitute a reasonable basis for believing that the respondent had been drinking within the previous 15 to 20 minutes. Nor did the other two matters that the trial judge mentioned – “the interaction with the defendant [and] the driving leading up to the stop”. At the highest, the combination of circumstances the trial judge referred to might have been a basis for speculation in that regard. To have delayed the test on the basis of speculation would have put the officer in breach of his duty to conduct the ASD test forthwith, and would have given rise to a different allegation of a breach of the Charter.

[25] In many respects, this case is like R. v. Au-Yeung, 2010 ONSC 2292. In that case, the officer who arrested the appellant based on a ‘fail’ reading on the ASD did not advert to the possible presence of residual mouth alcohol notwithstanding that he was aware of its potential impact on the reliability of an ASD reading. The appeal judge, Ducharme J., held that there was no violation of the Charter. He stated, at paragraph 37:

There is no evidence that the appellant was drinking shortly before the administration of the ASD test, and it would be speculative to conclude that the ASD reading might not have been accurate on this basis. Indeed, there is no reason to think that, if P.C. Wollenzien had considered this issue, he would have proceeded in any different fashion than he did. I say this without, in any way, condoning the inexplicable failure of P.C. Wollenzien to consider the possibility of residual mouth alcohol.

[26] In both Au-Yeung and the case at bar the officer proceeded with the ASD test without adverting to the possibility of residual mouth alcohol. In Au-Yeung the officer knew that residual mouth alcohol was potentially an issue whereas in the case at bar Sgt. Male did not, but that is a distinction without a difference. In my opinion, the reasoning of Ducharme J. in Au-Yeung is equally applicable to this case.

[27] The trial judge’s concern about the failure of Sgt. Male to be aware of the residual mouth alcohol issue was understandable. But while Sgt. Male should have been aware of it, his lack of awareness did not make his reliance on the ASD result unreasonable in the absence of something to suggest that residual mouth alcohol was an actual concern.

[28] In my respectful view, the trial judge’s approach to the question of whether Sgt. Male had reasonable grounds to believe that the respondent had been operating his motor vehicle ‘over eighty’ was fatally flawed, and thus the conclusion that he reached cannot stand.

E. Disposition

[29] The Crown submits that the appropriate order is to set aside the acquittal and enter a conviction. I disagree. The trial on the merits and the Charter application were ‘blended’ up to the end of the Crown’s case, but at that point they were separated: the respondent elected to testify but only on the Charter application and at the end of his evidence the parties agreed to make submissions on that application before continuing with the trial. At the conclusion of those submissions, the trial judge made his ruling excluding the Intoxilyzer results and the trial came to an end. The respondent had never been asked if he wished to call further evidence nor did have the opportunity to make final submissions on the merits. The trial was never completed. In those circumstances, the appropriate order is for a new trial.

[30] I make no order in relation to what may or may not be re-litigated at the new trial.

MacDonnell, J

Released: June 27, 2013