PETERBOROUGH COURT FILE NO.: 2466/11

DATE: 2013-01-21

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Jordan James Brown

Appellant

Paula Thompson, for the Crown

James Hauraney, for the Appellant

HEARD: January 14, 2012

REASONS FOR JUDGMENT

Gunsolus, J.

[1] The appellant was charged that on or about the 19th day of November, 2011, at the Township of Smith Ennismore Lakefield, Peterborough County, he did drive while his blood alcohol exceeded eight milligrams of alcohol in one hundred millitres of blood, contrary to section 253(1)(b) of the Criminal Code of Canada.

[2] The appellant was convicted on the 31st of August, 2012, at the Ontario Court of Justice in Peterborough. In addition, the appellant was convicted and sentenced in relation to Highway Traffic Act charges, for which he received a minimum sentence of a $1,000 fine and a one year driving prohibition.

[3] The appellant appeals against the Criminal Code conviction and sentence.

Background

[4] In this case, the appellant provided a roadside sample of his breath into the Alcotest 7410 GLC, which registered a fail. When giving evidence in relation to the nature of the breath demand, the arresting officer answered “To providing suitable samples of his breath back at the station.”

[5] There was no testimony, beyond that statement, as to what was actually said by the arresting officer to the appellant or whether or not the appellant understood.

[6] The appellant was subsequently taken to the OPP detachment, at which time he was provided with his opportunity to contact duty counsel, was transferred to a qualified breath technician and subsequently provided breath samples into the Intoxilyzer 8000C, registering readings of 106 mgs and 100 mgs of alcohol in 100 ml of blood.

Appellant’s position

[7] Although other grounds were argued, the main thrust of this appeal was the lack of evidence provided by the arresting officer as to whether or not the appellant understood the nature of the demand such that it is alleged that there was insufficient evidence upon which a trial judge could find that a lawful demand was made.

[8] The appellant conceded that the trial judge appropriately stated that she was required to “assess the wording of the demand in a flexible yet functional approach.”

[9] The appellant however, took issue with the lack of evidence from the arresting officer as to whether or not the appellant understood the demand made of him.

[10] To quote the trial judge:

…I think it is abundantly clear – and would have been clear to Mr. Brown – that what was going on was an investigation into him driving when he had been drinking. And that is the context in which the demand for the Intoxilyzer samples is made. The officer indicated in his evidence that he asked – or told Mr. Brown that they would have to go back to the detachment for breath samples. I have no doubt that Mr. Brown understood what was being asked of him. And, in my view, that complies with the Criminal Code requirement for a demand for breath samples.[^1]

Crown’s Position

[11] The Crown relied on the Benson[^2] and Stewart[^3] cases. In the Benson case, the arresting officer testified that he had read the roadside screening demand, read the appropriate caution, and determined from the accused that she understood the nature of the demands being made of her. In that case, the appeal judge found that, given the uncontradicted and unchallenged evidence of the arresting officer that, she made both demands, the appellant understood both demands and the appellant provided breath samples suitable for analysis, the inference drawn by the trial judge that proper demands were made, was appropriate.

[12] In the Stewart case, the arresting officer also gave evidence that the accused understood the demand when asked. What is of significance, again, is that the arresting officer testified that the appellant acknowledged that he understood the demand.

Discussion

[13] In both Benson and Stewart, a fulsome assessment of the nature of the demand, when the demand took place, whether the demand was understood, and whether the demand was complied with, was confirmed by the direct evidence of the arresting officer.

[14] The transcript of evidence and reasons for judgment rendered in this matter discloses that there was no direct evidence given by Crown witnesses that the appellant indicated that he understood the demand that was made of him. Rather, the trial judge surmised that from “those bits of the conversation that we have”, it was abundantly clear and would have been clear to the appellant, that what was going on was an investigation into him driving when he had been drinking. The trial judge goes on to find that is the context in which the demand for Intoxilyzer samples is made.

[15] I believe that it is not sufficient to indicate, in a matter of this nature, that a general context in which demands for Intoxilyzer samples are made is sufficient to determine whether or not an accused understands the nature of the demand that is being made of them.

[16] As was stated in both Benson and Stewart, evidence is required to establish that:

(a) Demands were made in relation to an alcohol and driving related incident;

(b) When the demands were made;

(c) That the accused understood the nature of the demands; and

(d) That the demands were complied with.

[17] In the case before me, evidence was presented in relation to (a), (b) and (d) but no evidence was presented in relation to (c).

[18] Nowhere in the transcript or the reasons is there any indication that the arresting officer gave evidence that he believed, or that the accused indicated that, he understood the demand or his rights in relation thereto. In fact, no evidence was offered through the arresting officer in relation to whether or not the appellant understood.

[19] It is permissible, based upon a fulsome assessment of the evidence surrounding the nature, timing, understanding and compliance to determine whether or not a lawful demand was made. In Benson at page 6, paragraph 23, the arresting officer’s evidence was that the accused was read the demand, given a caution and the accused indicated that she understood the demand. In R. v. Stewart, at page 13, paragraph 33, the evidence of the arresting officer was that a demand was made, and although the particulars of that demand was not given in evidence, the officer did testify that the appellant acknowledged that he understood the demand.

[20] The appellant in this case did not testify, but as argued by his counsel, the presumption of innocence applied. The right to silence was engaged, and therefore the issue of the appellant’s understanding may only be decided on the evidence tendered and, in this regard, the arresting officer was not asked about, and gave no evidence on this issue. Thus, the informational component was not met. The officer is obliged not only to explain the demand and rights, but also to provide evidence as to whether or not the accused indicated they comprehended.[^4] In this case the officer, simply, was not asked. That evidence was missing.

[21] As stated by Justice D.J. Gordon in Belanger, a breach of the informational component differs from that at the implementational stage. Breach of the informational component, means you “do not get to the latter for consideration of other matters.”[^5]

[22] In the case before me, evidence by the arresting officer that the appellant acknowledged or appeared to understand the nature of the demand made of him, was not presented. Rather, it would appear that there was speculation and a reading between the lines in order for it to be determined that, perhaps, the appellant understood the nature of the demands made of him. The evidence in relation to the accused’s comprehension of the caution and rights given to him, could also have been made clearer by way of specific questioning of the investigating officer.

[23] The Crown is provided with an evidentiary presumption in section 258 which allows, among other things, for the Crown to produce the results of the tests by means of a certificate of evidence. This certificate, of course, may be introduced into evidence only if certain conditions precedent are met[^6]. To that end, evidence in relation to each of the conditions precedent to the introduction of the certificate should be introduced by way of evidence in as clear and unequivocal fashion as possible. While there is no question that the totality of the evidence may show that an accused in a particular case understood such a demand, no evidence was lead to suggest such an understanding, and therefore the criteria as set out in Benson and Stewart would not appear to have been met.

[24] Knowing why one is being investigated is but one element of the basket of an accused’s rights. Being given a caution, rights to counsel and demand, that one would expect a reasonable person to understand, and that is actually understood, are all part of that basket of rights. Evidence that an accused was afforded each of these rights and understood each one should be provided to the trier of fact, when it is available, in as clear a fashion as possible.

[25] To that end, the lack of evidence in this regard prohibits introduction of the breath sample evidence at trial.

[26] In the result, the appeal is granted, the conviction and sentence are set aside and an acquittal is entered.

“Mr. Justice D.S. Gunsolus”

Released: January 21, 2013

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

JORDAN JAMES BROWN

REASONS FOR JUDGMENT

Justice D.S. Gunsolus

Released: January __, 2013

[^1]: Proceedings at trial, page 42, lines 23-32 and page 43, lines 1-5.
[^2]: See: R. v. Benson, [2008] O.J. No. 3056 (S.C.J.)
[^3]: See: R. v. Stewart, 2009 11 (ON SC), [2009] O.J. No. 11 (S.C.J.).
[^4]: See: R. v. Bartle, 1994 64 (SCC), [1994] 3 S.C.R. 173 (S.C.C.), at paras. 20 and 28; see also HMTQ v. Belanger, 2012 ONSC 6419; see also R. v. Squires, 2002 44982 (ON CA) at, para. 32.
[^5]: See R. v. Belanger, supra.
[^6]: See: R. v. Ovchinikov, [2008] O.J. No. 5959, at para. 15.