ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-12-500000027AP

DATE: 20130204

BETWEEN:

HER MAJESTY THE QUEEN

Appellant

– and –

NATASHA McCARTHY

Respondent

Stefania Fericean, for the Appellant

Nicholas A. Xynnis, for the Respondent

HEARD: January 24, 2013

On appeal from the acquittal entered by Justice D. Hackett of the Ontario Court of Justice on July 19, 2012

MacDonnell, J

[1] On July 19, 2012, the respondent appeared before the Ontario Court of Justice in Scarborough and was arraigned on an information charging her with one count of operating a motor vehicle while her ability to do so was impaired by alcohol and one count of operating a motor vehicle having consumed alcohol in such a quantity that the concentration thereof in her blood exceeded eighty milligrams of alcohol in 100 millilitres of blood. The Crown elected to proceed summarily and the respondent pleaded not guilty.

[2] At the conclusion of the Crown’s case, the trial judge dismissed both counts. The Crown appeals only the dismissal of the ‘over eighty’ charge.

A. The Proceedings at Trial

[3] The charges against the respondent arose from a police investigation of a two-car collision that occurred in the intersection of Kennedy Road and Lawrence Avenue East at about 11:30 p.m. on November 17, 2011. When Constable McGregor of the Toronto Police Service arrived at the scene at about 11:45 p.m., he observed the respondent sitting in the driver’s seat of one of the cars involved in the collision. He noticed an odor of alcohol coming from within the vehicle. When he spoke to the respondent, she “seemed distant and had a blank stare on her face”, and it appeared that she did not want to look at him. However, she confirmed that she had been driving the car.

[4] McGregor advised the respondent that he could smell the odor of alcohol. She told him that she had consumed some wine with dinner, an hour earlier. When she spoke, McGregor noticed that the odor of alcohol became stronger. He also noted that her eyes were bloodshot and glazed, and that while her speech was not slurred, it seemed to be forced, as if “she was really concentrating on the words that were coming out of her mouth”.

[5] Based on those observations, P.C. McGregor decided to make a demand that the respondent provide a sample of breath into an approved screening device (ASD). By this point, the respondent was outside of her vehicle. As the officer attempted to read the demand, the respondent turned and walked away. He followed her and read the ASD demand. She ignored him. He re-read the demand. She stated that she was not going to comply. When McGregor warned her that she could be charged with refusal, she agreed to provide the sample.

[6] After some initial difficulty, the respondent provided a suitable sample of breath into the ASD, which registered an “F”. McGregor testified that an “F” indicates “that there is greater or equal to 100 milligrams of alcohol in the blood”. He advised the respondent “that she was under arrest for operation over eighty milligrams”. He testified that his grounds for making the arrest were the observations summarized above “and the fact that she registered an ‘F’ or a fail on the alco-tester, which confirmed my suspicions”.

[7] McGregor informed the respondent of her right to counsel, cautioned her, and read the Intoxilyzer demand. She was taken to 41 Division where she was turned over to a qualified technician. In due course, and within the time prescribed by s. 258(1)(c)(ii) of the Criminal Code, she provided two suitable samples of her breath into an Intoxilyzer 8000C. The qualified technician testified that the analysis of those two samples revealed concentrations of 194 and 190 milligrams of alcohol in 100 millilitres of blood.

[8] Prior to the commencement of the trial, counsel for the respondent filed an application under s. 24 of the Canadian Charter of Rights and Freedoms to exclude the statement that the respondent had made to McGregor confirming that she had been driving. The respondent alleged that the statement was obtained in violation of her rights under s. 7 of the Charter. No other applications to exclude evidence were brought. After the Crown closed its case, counsel for the respondent (Mr. Dotsikas) advised the trial judge that he was abandoning the application to exclude the respondent’s statement. He then stated:

Now – so but for the one other issue that I will bring up I’d have to concede that the Crown has made out their case. Well, these are not submissions yet, we haven’t reached that point, but there is one issue that came up, and Your Honour might appreciate why this is the sort of thing that one can never anticipate, that I would submit may raise the issue of a Charter application in the form of a section 8 argument, arguing that the officer had no reasonable and probable grounds to make a demand.

THE COURT: I don’t know why this has to be a Charter issue. We have – we’ve dealt with these issues long before the Charter, and you didn’t need a Charter to deal with reasonable and probable grounds…

MR. DOTSIKAS: Well, ultimately to exclude the readings, Your Honour, it would have to be in that form.

THE COURT: Right, but to admit them it has to have met the test. You have to have had reasonable and probable grounds. So I mean, I…

[9] Mr. Dotsikas and the trial judge then engaged in a colloquy with respect to whether Constable McGregor had reasonable grounds to make the Intoxilyzer demand. The trial judge expressed the view that McGregor’s evidence that he believed that an “F” on the ASD indicated a reading equal to or greater than 100 milligrams of alcohol “in the blood”, rather than “in 100 millilitres of blood”, was inadequate to establish reasonable grounds to believe the respondent had committed an over eighty offence. She stated: “[The] fact that he doesn’t have grounds to believe it was …equal to or more than 100 milligrams of alcohol in 100 millilitres of blood is fatal. It’s, it’s fatal”.

[10] Mr. Dotsikas responded:

Then those are my submissions, Your Honour. Well that would be the argument I would make, whether it’s in the form of a submissions or whether Your Honour feels that it should be done in the form of a Charter, I’m in the court’s hands.

THE COURT: No, I think it’s, I think it’s a non – because I don’t – I still don’t understand, we would have thrown this out years before we had the Charter…. Because – just let me articulate it, perhaps for [Crown counsel]. All right, so the reason – the police officer – this is s. 254(3), “If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed an offence under section 253, as a result of the consumption of alcohol, the police officer may by a demand made as soon as practicable require the person to provide” – and then you require that the demand is made in order for the admissibility, but the – if there aren’t the reasonable and probable grounds, it doesn’t go in…

[11] The trial judge repeated her view that, completely apart from the Charter, the results of breath testing conducted pursuant to a demand were only admissible if there were reasonable grounds for the demand. She stated: “If it’s not a lawful demand, the readings don’t go in”. After hearing from the Crown, she ruled as follows:

Okay, so first of all, the non-suit on the over eighty is granted on the basis of there not having been reasonable grounds to make the demand for the approved instrument administered by the qualified breath tech.

B. The Positions of the Parties

[12] The central ground of appeal advanced by the Crown is that the trial judge erred in holding that proof of reasonable grounds for an approved instrument demand under s. 254(3) of the Criminal Code is a condition precedent to the admissibility of the results of the analyses performed by the approved instrument. The Crown submits that in the absence of an application to exclude the results pursuant to s. 24(2) of the Charter, the Crown is not required to prove that the officer making the demand had reasonable grounds to do so. The Crown further submits that, in any event, the trial judge erred in holding that Constable McGregor did not have reasonable grounds for the demand.

[13] The respondent does not strenuously dispute the proposition that in the absence of a Charter application reasonable grounds for a breath demand are not a prerequisite to the admissibility of breath results. The respondent submits, however, that the trial judge essentially treated the submission of the defence as a Charter application and that a s. 24(2) analysis “is implicit throughout her conduct of the trial especially in her discussions with counsel”.

C. Conclusions

[14] The trial judge erred in holding that the results of the testing of breath samples were not admissible unless the officer who made the demand for the samples had reasonable grounds to believe that the accused was committing or within the preceding three hours had committed a drinking and driving offence. Contrary to the view expressed by the trial judge, it was firmly established prior to the enactment of the Charter that proof of reasonable grounds for a demand is not a precondition to the admissibility of breath test results. Nor is it a precondition to the availability of the presumptions of identity and accuracy set forth in ss. 258(1)(c) and (g) of the Criminal Code. The Court of Appeal for Ontario has repeatedly affirmed the continuing vitality of those propositions in the post-Charter era.

[15] Clearly, the Charter has altered the landscape in this area. In order for the taking of breath samples to comport with s. 8 of the Charter, the taking must be authorized by law. In order to be authorized by law, the officer who made the demand for the samples must have had reasonable grounds for the demand. If the officer did not have reasonable grounds, the taking of the samples would be unlawful and would constitute an infringement of s. 8. The infringement of s. 8 would make the results of the analyses of the samples, though admissible, susceptible to exclusion under s. 24(2).

[16] Exclusion would not be automatic, however. In accordance with R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the court would be required to consider the effect of admitting the evidence on society's confidence in the justice system having regard to the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter-protected interests of the accused, and society's interest in the adjudication of the case on its merits.

[17] Because the trial judge was of the view that the results of the Intoxilyzer tests were automatically inadmissible if the officer making the Intoxilyzer demand did not have reasonable grounds, she never addressed any of the considerations that would be relevant to the analysis mandated by Grant. I am satisfied that the verdict would not necessarily have been the same had she done so.

E. Disposition

[36] The verdict of acquittal on the charge of ‘over eighty’ is set aside and a new trial is ordered.

MacDonnell, J.

Released: February 4, 2013