ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-11-172-AP

DATE: 20130128

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

SANTE MARCHIONNE
Appellant

S. Curry, for the Crown
A. Little, for the Appellant

HEARD: September 24, 2012

On appeal from the Judgment of Mr. Justice J.C. Crawford dated June 21, 2011

Judgment on Appeal

HEALEY J.

Nature of the Appeal

[1] The appellant was charged with the offence of “over 80 mgs.” contrary to s. 253(1)(b) of the Criminal Code, R.S.C. 1985 c. C-46.

[2] The appellant appeals against his conviction of June 21, 2011, and seeks to have the conviction quashed and an acquittal entered, or a new trial ordered.

[3] The grounds for the appeal are that the trial judge erred in law by failing to exclude the evidence of the appellant’s breath samples pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms (“Charter”), despite having found that the appellant’s rights under ss. 8 and 9 of the Charter were violated.

[4] For the reasons that follow the appeal is allowed.

The Facts

[5] The only witness to give evidence on behalf of the Crown was the investigating officer, P.C. Loos, an O.P.P. officer with 16 years of experience. On the date of the appellant’s arrest she was participating in a RIDE stop check. The motor vehicle driven by the appellant came through the RIDE stop at 7:38 p.m., containing him and one male passenger. Upon speaking to the appellant, she detected an odour of alcohol emanating from the vehicle. She also noticed that the appellant had red-rimmed eyes. P.C. Loos then asked the appellant when he had had his last drink of an alcoholic beverage and his response was that he had had alcohol that morning. She then requested that he pull over to the side of the road, and he complied. P.C. Loos then asked the appellant if he would provide a sample of his breath into the roadside testing device. She testified that she did so because she had reasonable and probable grounds at that point to believe that he had alcohol in his body and in his blood, and that he was driving a motor vehicle.

[6] The demand made by P.C. Loos was pursuant to s. 254(2) of the Criminal Code, which provides:

254(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:

(a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and

(b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

[7] It was only after the appellant had exited his vehicle that P.C. Loos could detect that there was an odour of alcohol coming from his breath.

[8] The appellant registered a “Fail” on the Approved Screening Device (“ASD”) at 7:43 p.m., was arrested, searched and then placed in the back seat of the police cruiser. At 7:49 p.m. the appellant was read his right to counsel, and at 7:50 p.m. was read a caution and an intoxilyzer demand pursuant to s. 254(3) of the Criminal Code to provide further samples of his breath. They left the scene at 7:52 p.m. and arrived at the detachment at 8:03 p.m., where the appellant was lodged in a cell and P.C. Loos contacted duty counsel. At 8:25 p.m. duty counsel called back and the appellant was placed in a privacy booth to speak to duty counsel. At 8:31 p.m., the appellant had completed his discussion with duty counsel and was turned over to the breath technician. After providing his breath samples, P.C. Loos serve the appellant with a number of documents at 9:55 p.m., and then drove him back to the cottage where he was staying in Wasaga Beach. The total time in detention following arrest was 2 hours and 12 minutes, plus the drive from the Huronia West O.P.P. detachment to Wasaga Beach.

[9] Based on the foregoing facts the trial judge found that P.C. Loos lacked objective grounds for the ASD demand pursuant to s. 254(2) of the Criminal Code, leading to a violation of his rights under ss. 8 and 9 of the Charter. At page 12 of his Reasons for Judgment, Crawford, J. concluded:

Before Constable Loos had the defendant step out of his motor vehicle in order for her to smell his breath alone, she could not possibly have formed at least the requisite objective grounds to detain him and make the approved screening device demand, all in conformity with R. v. Haas 2005 26440 (ON CA), [2005] O.J. No. 3160 (OCA).

[10] In her evidence P.C. Loos explained that she did not ask further questions of the appellant prior to requesting that he exit the vehicle to provide a breath sample because she was following procedure, as she had been trained. She testified: “...you have to be careful how you ask the questions and what you ask, so that you don’t infringe on someone’s rights or so that they don’t make an admission that might result in a voir dire at court”.

Issue on Appeal

[11] Having found that the ASD demand was unlawful and invalid, did the trial judge err by nonetheless admitting the evidence of the test result?

Analysis

The Standard of Review

[12] The Supreme Court of Canada has clearly stated that a trial judge’s determination under s. 24(2) of the Charter is owed considerable deference on appellate review, where that judge has considered the proper factors and has not made any unreasonable findings: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 86 [“Grant”]; R. v. Beaulieu, 2010 SCC 7, [2010] 1 S.C.R. 248, at para. 5; R. v. Cote, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 44. Therefore, only if the trial judge made an error in law by failing to consider the proper factors, or by having made an unreasonable finding, should this appeal be allowed.

The R. v. Grant Analysis

[13] The appellant submits that the trial judge erred in two respects. First, he submits that the trial judge erred in his application of the law as it relates to the second branch of the test set out in Grant, i.e. in assessing the impact of the Charter-protected interests of the appellant, and failing to provide sufficient reasons. Second, the appellant submits that the trial judge erred by failing to perform the required balancing exercise mandated by s. 24(2). Following his consideration of the three avenues of inquiry developed in Grant, the appellant argues that the Reasons of the trial judge reveal that he did not undertake the appropriate balancing of the factors weighing for or against inclusion of the evidence obtained in violation of the Charter, and that such failure was a legal error that should be decisive of this appeal.

[14] The Reasons of the trial judge set out his Grant analysis at pp. 13-15 as follows, after having made the finding that the appellant’s Charter-protected rights had been infringed:

Regarding remedy, the law that comes from the Grant decision requires the Court to address and balance three questions, namely: (1) the seriousness of the Charter infringing state conduct; (2) the impact of the breach on the Charter protected interests of the defendant; and (3) society's interest in the adjudication of the case on its merits.

Considering this three-part Grant analysis in the context of the case at bar, I reach these conclusions. Regarding the seriousness of the Charter breach, I find it helpful to note that s. 24(2) is not aimed at punishing the police but at systemic concerns (see Grant at its paragraph 70). Constable Loos’ angst concerning discussions with the defendants in impaired driving investigations, other ones, reveals a systemic error that could result in unnecessary detention of motorists. On the other hand there is no indication before me that Constable Loos had this error pointed out to her before, and her evidence otherwise suggest good faith to me. As well, sufficient observations to support the approved screening device demand were easily available with a somewhat extended investigation, and the breach exists for at most, a few seconds. I would assess the first Grant factor as slightly arguing in favour of exclusion of the approved instrument readings on the basis that Constable Loos’ mode of investigation is a practice that the Court should disassociate itself from in the interest of supporting public confidence in the rule of law.

Regarding the impact of the breach on the defendant's Charter-protected right, I note that the law which finds that the providing of a breath sample as being minimally intrusive even though it implicates bodily integrity, privacy, and human dignity: see R. v. Price [2009] O.J. No. 3540 at its para. 62 (OSCJ). I assess this factor as relatively minimal in the case at bar and find that it argues in favour of the inclusion of the approved instrument readings.

Regarding the third factor, there is a clear state interest in a determination of the case on its merits, arguing in favour of the inclusion of the readings.

In the result then I find that the approved instrument readings should not be excluded.

[15] The first point made by the appellant is that, although Crawford J. found that the seriousness of the police conduct militated “slightly” in favour of exclusion of the approved instrument readings on the first branch of the test, his analysis minimizes the gravity of the conduct in relation to the appellant’s constitutional rights, and therefore affected the balancing that had to be undertaken. I agree. Section 254(2) gains its constitutional validity by stipulating the minimum threshold that police officers must meet before being permitted to interfere with a person’s liberty. A demand for a breath sample made under that section, prior to the officer having the basis to form the suspicion on reasonable grounds that a driver has alcohol in his or her body, is an unlawful demand: R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205. The comments of LeGrandeur, Prov. Ct. J. in R. v. Perry, 2010 ABPC 350, [2010] A.J. No. 1274, at paras. 46 and 48 underscore why such a breach should be considered at the serious end of the scale:

A roadside sample of breath that is taken with valid suspicion and leads to a “fail” result will, more than likely, lead to a conviction for being over .08. It is therefore a step of fundamental importance in the drinking and driving legislative scheme, and is the first available step in the process whereby the accused is required to provide potential evidence against himself. Therefore, the failure of the police officer to meet the evidentiary and constitutional standard necessary to demand a roadside breath sample is a significant breach given the role that sample plays in the legislative scheme and the potential conviction of the accused.

Therefore, both reasonable suspicion of alcohol in the body and reasonable and probable grounds for belief of impairment or being over .08 are fundamental to the operation of the legislative scheme. The proof of either, or both, is also fundamental to justifying the interference with an individual's rights. The failure to meet the requisites for either of these demands is a serious breach, which goes to the root of the right of police authorities to interfere with an individual's liberty. Parliament has specified when and with what evidential base such demand may be made, and failure to meet those standards, which are both statutory and constitutional, are serious breaches.

[16] Justice Ducharme’s comments in R. v. Au-Yeung, 2010 ONSC 2292, [2010] O.J. No. 1579, at paras. 61 and 62, also explain the seriousness of the contravention:

But that should not end the matter, because the demands placed on a driver to facilitate these tests are often not minimally intrusive. In this case, the appellant was arrested, handcuffed, placed in the rear of the police car and taken to a police station, a sixteen minute trip, and, once at the station, he was kept in police custody for another hour and fifty minutes. Thus, while the trial judge was correct in saying that the treatment of the appellant was not “oppressive” that is not the test. Certainly, such an interference with the appellant's personal liberty cannot be dismissed as minor. Thus, where the police lack the requisite grounds for the s. 254(3) demand, these aspects of the appellant's treatment constitute a significant violation of section 9.

While the public are supportive of the legislative scheme in place to combat drinking and driving, this support cannot be presumed to extend to police actions that involve the detention and arrest of drivers without the requisite statutory and constitutional grounds. To condone or excuse the behaviour in this case would send a message to the public that, despite their Charter rights under sections 8 and 9 of the Charter, the police can ignore these and detain and arrest any driver. Thus, despite the minimal intrusiveness of the breath-testing procedures themselves, the second branch of Grant also weighs in favour of exclusion of the evidence.

[17] Unlawful searches, into which category an unlawful demand made under s. 254(2) falls, have consistently been held by the courts to constitute an inherently serious violation of s. 8: R. v. Bartle 1994 64 (SCC), [1994] 3 S.C.R. 173, at para. 50; R. v. Simmons, 1988 12 (SCC), [1988] 2 S.C.R. 495, at para. 47; R. v. Haas, (2005) 2005 26440 (ON CA), 76 O.R. (3d) 737 (C.A.) at para. 40.

[18] In the result, the trial judge erred by considering that the Charter violation existed “for at most, a few seconds”, since Constable Loos was able to smell alcohol on the appellant shortly after she had formed her suspicion, and therefore justified her ASD demand. There is no law that supports the proposition that knowledge gleaned after the breach will serve to minimize the ultimate seriousness of an unlawful search. I agree with the submission of the appellant that, when analyzing the seriousness of the Charter-infringing state conduct under s. 24(2), the court must consider the state conduct at the time of the breach and not at some subsequent point in time.

[19] It is further submitted that the trial judge erred by minimizing the seriousness of the violation by finding that the evidence of P.C. Loos suggests that she acted in good faith. In discussing the evidence of P.C. Loos the trial judge stated at page 6 of his Reasons:

This analysis did leave me with the caution going to the officer's evidence, although I don't rejected in its totality. The problematic evidence of Constable Loos was given without hesitation and without apparent recognition of the problem.

While I agree that P.C. Loos was simply being cautious as a result of improper education or instruction, as opposed to being deliberately or wilfully cavalier toward the appellant’s rights, her evidence suggests an identification of the systemic problem that should not be encouraged. As stated in Grant at para. 75:

“Good faith” on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or willful blindness cannot be equated with good faith: R. v. Genest, 1989 109 (SCC), [1989] 1 S.C.R. 59, at p. 87, per Dickson D.J.; R. v. Kokesch, 1990 55 (SCC), [1990] 3 S.C.R. 3 at pp. 32-33, per Sopinka, J.; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para 59.

[20] Again, while the appellant does not disagree with the ultimate conclusion of the trial judge with regard to exclusion under this branch, I agree that the judge erred in analyzing the seriousness of the conduct, and that this error may have affected the ultimate result.

[21] The appellant also submits that the trial judge erred in his analysis of the second avenue of inquiry under the Grant test. As set out above, the trial judge relied on law which purports to hold that providing a breath sample is a minimally intrusive encroachment on a person’s rights, citing a case identified as R. v. Price. The appellant’s counsel submitted in argument that such a case cannot be located in the reported sources. This court’s inquiries have successfully located such a case, cited as 2010 CarswellOnt 5563; 2010 ONCA 541. In R. v. Price, Watt, J.A. denied an application for an extension of time for leave to appeal from the summary conviction appeal decision, which rejected the applicant’s claim to stay proceedings on the basis that he had been arbitrarily detained. I have reviewed the case in detail and find that it cannot be characterized as authority for the proposition that breath samples are a minimal infringement on a person’s rights.

[22] This second component of the test requires the court to determine the extent to which the breach compromised the interests underlying the Charter rights. The more serious the impact of the breach on the purpose of a Charter-protected interest, the greater the risk that admission of the evidence would bring the administration of justice into disrepute: Grant, at paras. 76-77 and 109.

[23] Section 8 of the Charter guarantees a broad right to be secure from unreasonable search and seizure, which protections go at least as far as protecting an individual’s reasonable expectations of privacy. In this case, in the face of an unlawful detention, the appellant underwent not only one, but two, procedures of some level of intrusion, being required to give a breath sample both for the purposes of the ASD and the intoxilyzer. While in Grant it was observed that the state conduct involved in obtaining breath samples is “relatively non-intrusive” in relation to the appellant’s privacy, bodily integrity, and human dignity (at para. 111), it must be remembered that this was not the only Charter-protected right that was affected by Constable Loos’ course of action that night. From the moment that she formed her deficient grounds to make the ASD demand, the appellant’s detention was arbitrary and therefore not authorized by law, in clear violation of s. 9. This breach is not dealt with in the Reasons of the trial judge in his consideration of the impact on the appellant’s interests. The resulting interference with the appellant’s liberty interests that flowed cannot be considered minimally intrusive. He was arrested, searched, transported to a police station, and then placed in a jail cell until processed. The entire experience lasted in excess of two hours. Accordingly, the impact on the appellant’s s. 9 rights was significant and cannot properly be assessed as minimally intrusive. In these circumstances, the deprivation of liberty and the arbitrary detention and imprisonment, while not falling within the egregious end of the spectrum, certainly represent a significant intrusion on the appellant’s Charter-protected interests.

[24] The fact that s. 9 was not considered by the trial judge means that, as required by Grant, he did not consider the purpose of the interest and the extent to which it was affected by the unconstitutional police conduct. The failure to do so is a legal error that certainly affects the trial outcome, as it cannot be said that the trial judge, had he properly considered the full impact of the infringement of both ss. 8 and 9, would still have concluded that the factors considered under the second branch would weigh in favour of inclusion of the evidence.

[25] The third line of inquiry under Grant is a consideration of society’s interest in an adjudication on the merits. When discussing this factor, the trial judge simply stated: “[r]egarding the third factor, there is a clear state interest in a determination of the case on its merits, arguing in favour of the inclusion of the readings”. This is not a sufficient analysis, as almost every case before the courts necessarily raises society’s interest in having a determination on the merits. As explained in Grant, the court must also consider the long-term repute of the justice system that is s. 24(2)’s focus (at para. 84). However, there is a strong public interest in curtailing and prosecuting drinking and driving offences, and this is a case where the results of the intoxylizer tests are crucial to the Crown’s case. Given that this is a case “where exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution”, Grant, at para. 83, it may well be that this factor favours inclusion of the evidence. However, the failure of the trial judge to provide any analysis of the impact of exclusion or inclusion on the repute of the justice system is an error.

[26] Finally, the appellant suggests that the failure of the trial judge to provide reasons as to why the balancing of the three factors resulted in inclusion of the evidence is an error of law. The trial judge simply stated: “[i]n the result then I find that the approved instrument readings should not be excluded”. The Court in Grant explained that the balancing mandated by s. 24(2) is qualitative in nature and therefore not capable of mathematical precision (at para. 140). In R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, the Court further explained:

The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.

[27] The Crown argues that this “balancing” is found throughout the Reasons and that ultimately the decision to include the evidence was not an unreasonable finding and should be owed considerable deference. I disagree, as the Reasons do not reveal that there was a weighing of whether the admission of the evidence would bring the administration of justice into disrepute at each branch of the inquiry. This was imperative, especially given that there are several contrary decisions post-Grant in which breathalyzer evidence has been excluded based on the court’s assessment and balancing of the effect of admitting the evidence on society’s confidence in the justice system: R. v. Leonardo, 2009 ONCJ 507, [2009] O.J. No. 5082; R. v. Looknath, [2010] O.J. No. 4352 (Ont.C.J.); R. v. Winter, 2010 ONCJ 147 [2010] O.J. No. 1733; R. v. Avila, 2010 ONCJ 512 [2010] O.J. No. 4888; R. v. Vijayam, 2010 ONCJ 537 [2010] O.J. No. 4914; R. v. Perry, 2010 ABPC 350, [2010] A.J. No. 1274; R. v. Au-Yeung, 2010 ONSC 2292, [2010] O.J. No. 1579 ; R. v. Stivrins, 2011 O.J. No. 6305; R. v. Tan, 2011 ONCJ 570, [2011] O.J. No. 5124; R. v. Selvarajah, 2011 ONCJ 164, [2011] O.J. No. 1501; and R. v. Mitchell, 2012 MBQB 12, [2012] M.J. No. 13.

[28] For the reasons set out above, the appeal is allowed. I also find that it is in the interests of justice not to order a new trial, so I order that the conviction be quashed and an acquittal entered.

HEALEY J.

Released: January 28, 2013