ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
COURT FILE NO.: CR15/13
DATE: 20140326
B E T W E E N:
HER MAJESTY THE QUEEN
R. Fetterly, for the Crown
Respondent
- and -
DAVID NOEL SAMUEL WATT
D. Faed, for the Applicant
Applicant
HEARD: February 28, 2014
REASONS FOR JUDGMENT
[On appeal from the judgment of Maund J. dated April 3, 2013]
Fragomeni J.
[1] The Appellant, David Noel Samuel Watt (the Appellant) was tried in the Ontario Court of Justice before the Honourable Judge D. B. Maund on April 3, 2013 on two counts, namely, operation of a motor vehicle while impaired and operation of a motor vehicle while his blood alcohol concentration was more than 80 milligrams of alcohol in 100 millilitres of blood. The charge of operation of a motor vehicle while impaired was dismissed. He was convicted of the over 80. He was sentenced to a fine of $1,200.00 and given a driving prohibition of 18 months.
[2] The Appellant appeals both his conviction and sentence. The grounds of appeal are as follows:
the Learned Trial Judge did not exclude the evidence of the breathalyzer test readings where the demanding officer did not have a reasonable suspicion that the appellant had alcohol in his body before demanding a roadside screening test which formed the basis of a demand for breathalyzer tests (S. 8 Charter).
the Learned Trial Judge failed to consider the requirement in s. 258 (1) (c) (iv) that an analysis of each sample was made by means of an approved instrument operated by a qualified technician (emphasis added) in order for the test results to relate back to the time of operation of the vehicle.
the Learned Trial Judge incorrectly assumed that it would be difficult for the appellant to pay an enhanced fine as he was a student and therefore did not consider imposing one, rather than a driving prohibition of 12 rather than 18 months.
TRIAL EVIDENCE
Constable Patrick Mulligan
[3] Cst. Mulligan is a member of the Orangeville Police Service. On April 24, 2011 while on duty he had occasion to come into contact with the appellant. At 3:12 a.m. Cst. Mulligan first saw a vehicle that was being driven by the appellant travelling eastbound on Town Line near Century Road. When asked what drew his attention to this vehicle Cst. Mulligan testified as follows:
A. Well, I pulled in, I pulled out on to Townline and Century behind the vehicle. And as you travel on Townline Road in that area there’s a, kind of what I would call, sweeping turn to the right that approaches a Stop sign. I noted that the turn was what I would call a wide turn. And as we came around the curve, to kind of describe that area, off to your right there’s kind of some trees and bush that limit your field of vision, you can’t see very far. So, as we came around that curve, you get past the trees and stuff and you approach a Stop sign, your field of vision kind of opens up. And the Stop sign comes to what’s also known as either Townline Road or County Road 136, Porterfield Road, I believe. And that road carries off and curves to the left and comes to a set of traffic lights. And on this particular evening those traffic lights were out and I observed an O.P.P. police cruiser with its emergency lighting on at that intersection. As we were approaching the Stop sign, the vehicle in front of me had its right turn signal on. It came to the Stop sign, changed to a left turn signal to turn left.
Q. All right. And just so that I understand it, when, when the vehicle came to the stop sign, to his right or to his left was the O.P.P. cruiser?
A. To his right in the distance.
Q. And the original turn signal was on as if the vehicle was going to travel to the right?
A. Right, towards the police car.
Q. And then the turn signal changed?
A. Yes.
Q. And what did the vehicle do after that?
A. It turned left.
Q. What were you thinking at that point in time?
A. That it was unusual.
Q. Why?
A. Strikes me as odd to, you know, change your mind once you’ve gotten to the Stop sign if you’ve already decided before you get there that you’re going to turn right. It was just one police car off in the distance with its lights on. There was nothing that would lead me to believe that there was some type of major incident or that traffic couldn’t proceed normally.
[4] Cst. Mulligan turned left as well and commenced following the vehicle. Cst. Mulligan observed some slight weaving within the lane. The vehicle was not going straight, it was drifting a little bit, still however, within its lane.
[5] Cst. Mulligan activated his emergency lighting to stop the vehicle. He was concerned given the time of night, day of the week and the driving behavior that perhaps everything was not all right with the driver. It took approximately ten seconds for the vehicle to stop. That ten second time span is longer than the normal couple of seconds, according to Cst. Mulligan’s experience.
[6] The vehicle did stop and Cst. Mulligan did speak to the driver. He described what happened next as follows:
A. I identified myself and made a demand that he provide his driver’s licence, vehicle’s ownership, insurance.
Q. And what happened then?
A. I made a note that while he was retrieving those items he was fumbling with his documents. He wasn’t able to just pick one out and put it in his hand and hand it to me. He gave me his licence and his registration for the vehicle. And then I noted he also had the insurance slip in his hand at three different times while he was looking for the insurance.
Q. So, during the time that he was telling you he was looking for it, do I understand that he was holding it?
A. Holding it in his hand.
Q. Holding the insurance slip?
A. Yes.
Q. And going through what?
A. I believe it was the glove box, but it could have been the centre console, or wherever he had his documents stored.
Q. Any other observations you made?
A. I did. I observed that his eyes were red-rimmed and glassy, and that I could smell alcohol.
Q. And the smell of alcohol, where did you believe it to be coming from?
A. From the accused and, and/or from the vehicle. There was a passenger as well.
[7] It was Cst. Mulligan’s opinion that the appellant had in fact been consuming alcohol based on the totality of the observations made.
[8] The appellant was given an ASD demand and at 3:18 a.m. he received a fail reading and was placed under arrest. The appellant was ultimately brought to the police station where a demand was made for breath samples.
[9] With respect to the changing of the Alcohol Standard Cst. Mulligan testified as follows:
Q. And can you tell us what the purpose, from your point of view is, in changing the Alcohol Standard and whether or not that was required in this case?
A. Sure. It has to be changed once you’ve done so many tests using the instrument, or once two weeks have gone by.
Q. Was it necessary to change it on this occasion?
A. I believe so, I’d have to go back and check the log book.
Q. What was required of you to change the solution and how long, approximately, did that take?
A. Seconds. They’re – the simulator has a screw-top almost like a Mason jar with a whole bunch of other stuff on it. You screw off the top, pour out the old solution, unscrew a plastic bottle that contains the new solution, and pour it in.
[10] The breath samples were taken by Cst. Kachik.
Constable Matt Kachik
[11] Cst. Kachik is a designated breathalyzer technician having been so designated in the year 2000. He was employed on April 24, 2011 in that capacity. On April 24, 2011 he was notified by Cst. Mulligan that he was required to administer breath tests for an accused in custody. Cst. Kachik testified that as a result of this information he proceeded as follows:
A. At approximately 3:50 a.m. I attended to the breath room to initialize the breath testing instrument of the Intoxilyzer 5000C. This instrument was already turned on for warm-up procedures. It is turned on by Constable Mulligan who is also a qualified breath technician within the service. At that time it was not ready, meaning it was still warming up for its, for data input and for testing procedures.
Q. What did you have to do to make it ready?
A. Once turned on it needs to warm up for a prescribed amount of time, approximately ten to 15 minutes. At that time a message comes across the screen advising that it’s ready for data input. At that time, 3:53 a.m. is when it was ready for data input. I noted the simulator, simulator solution had been changed at 3:35 a.m., so it was a fresh solution in the simulator for the Intoxilyzer, changed by Constable Mulligan. I then proceeded through a diagnostic check of the instrument, as well as a calibration check of the solution and began data entry of the accused party. Data entry consisting of name, birthdate, time of offence, information that I received from Constable Mulligan on what’s called a “Ground’s Sheet.”
[12] With respect to the changing of the solution, it was changed by Cst. Mulligan. Cst. Kachik explained it this way:
A. Yes. We, we change the solution weekly due to the amount of impaired tests that we do conduct in Orangeville. Often we will check when the solution was last changed prior to the next test. Quite often what happens is that solution is actually changed and calibrated before each test because it’s not uncommon for there to be a two week time lapse between tests. So, in this particular case, Constable Mulligan turned the instrument on for warm-up and would have noted that the solution was due for change and would have changed the solution. So, this would have been the first breath test conducted on that solution.
Q. And do you record the type of solution that, that is used?
A. It is a solution produced counter measures systems, ethyl alcohol solution. In this particular case the lot number, 200907B as in Bravo was used.
Q. And based on the information that you received from the Centre of Forensic Science, was that a solution that was appropriate for use in this instrument?
A. Yes.
Q. Were you satisfied that the instrument was working properly?
A. Yes, I was.
Q. Just in terms of your experience with changing alcohol solution in accordance with the requirements of the, of the instrument, how long a process is that to do?
A. It’s a very quick process. It’s simply a matter of opening up the simulator container, dumping out the old solution, drying the container, which is simply a glass jar, opening a sealed solution container, which is – there’s – individual containers are used for each solution sample, so it’s on full bottle of this container, which is sealed, pouring it into the glass jar and turning the, the instrument on top of the jar, or the lid of the jar back on, and then allowing the instrument to warm up to the proper operating temperature, which is approximately 34 degrees Celsius.
[13] The two readings obtained were 201 and 212 milligrams of alcohol in 100 millilitres of blood.
[14] In cross-examination by the defence Cst. Kachik stated the following with respect to the changing of the solution:
Q. The changing of the simulator solution, is that part of the operation of the machine, the machine, to get the, the samples analyzed?
A. The changing of the solution is done every two weeks. If the solution has not been changed within that two week period it is changed. So, in this instance it was over the two week period, so yes, it was changed prior to this test.
Q. So, in this particular case it was part of the operation of the machine in order to get the, the samples analyzed?
A. Yes, yes, it was.
Section 8 Charter Applications
[15] Following the completion of the Crown’s case, the defence raised for the first time a s. 8 Charter violation. The basis for this issue being raised at this time related to the trial testimony of Cst. Mulligan. In the disclosure provided to the defence, the notes of Cst. Mulligan indicate that the smell of alcohol was coming from the accused. In his trial testimony Cst. Mulligan testified that the smell of alcohol emanated “from the accused and/or from the vehicle. There was a passenger as well.”
[16] The Crown agreed that, despite the timing of the Appellant’s s. 8 application, it should be heard. The application was heard by the learned trial judge and dismissed.
Oral Ruling on the S .8 Application
[17] In his oral ruling relating to the s. 8 application the learned trial judge set out the following:
Well, in terms of the Section 8 argument, it’s a narrow focus, that type of argument. And the issue relates to whether the officer has reasonable grounds for suspicion both subjectively and objectively to make the demand for an approved screening device. And suspicion is not equivalent in the case law to grounds to arrest a person for an offence. It’s an initial investigative inquiry. And the case law on this issue has arisen and it is very clear that the Court should not effectively cherry-pick, if I can put it that way, the nature of the indicia that might lead the officer to his suspicion, objectively. The Court was not there at the scene. The officer is given some ability in the exercise of his duties to decide whether he subjectively and objectively believes that there’s suspicion. And the officers sometimes differ in their exercise of that discretion. Now, the summary of what the officer said his grounds were for that suspicion was the driving. Now, he said the driving. I took that answer to mean that he was referring to all aspects of the driving that he observed. There’s the unexplained right turn and then ultimate left turn and left signalling. There’s that minor weaving within the lane, which he observed. There was the delay in stopping for him, which he spoke about. Then at the cruiser when he initially dealt with the gentleman he mentioned the fumbling for the documents. And some confusion, as I took his evidence, in terms of producing the requisite documents, which Mr. Watt did. And then he said that he found his eyes to be red-rimmed and glassy. And he said he could smell alcohol. And he went on, as Mr. Faed very accurately pointed out, to say that the smell of the alcohol came from either the accused or from the passenger in the vehicle. And then he said, based on all of that, in his opinion, he believed that the gentleman had been consuming alcohol. And he did not believe his verbal response that he had not had anything to drink all day. And he made the demand anyway. So, there are a number of factors. And if it was a full application of the standards of beyond a reasonable doubt, and there was all of the evidence before me to consider, I may well have some comment as to whether these things, in support of those standards, would support, say, proof of impairment whether they are equivocal or not. But in relation to indicia as to grounds for suspicion, the officer had every right to rely on them objectively. Whether he was correct or not, he had a right to rely on the objectively. Because they might lead him to that conclusion. He could have been clearer in terms of the smell. He did indicate that he was, I think, about a foot and a half from Mr. Watt. But he never said unequivocally he believed the smell was coming from him. But he had these other things to rely on. I believe as a matter of law he can rely on it and the officer had grounds for the suspicion and that the demand was proper. So, respectfully, I am dismissing the application at this stage.
Oral Reasons for Judgment on the Over 80 Count
[18] At trial the defence raised two issues. One related to whether the tests were taken as soon as practicable as required by the Criminal Code. The second issue raised by the defence was that under section 258 (1) (c) (iv), that where the samples of the breath of the accused to be taken pursuant to the demand requires the following: “An analysis of each sample was made by means of an approved instrument operated by a qualified technician.”
[19] The defence argued that the section refers to the word “a” qualified technician, that is to say one technician. The defence submitted that two qualified technicians were involved, namely, Cst. Mulligan, who changed the solution and Cst. Kachik who conducted the tests.
[20] At this appeal only the second issue was advanced so I will set out the learned trial judge’s reasons on that issue. The learned trial judge set out the following:
I think if you read the words in context, with respect, it refers to the taking of the samples that produce an analysis made by the approved instrument operated by a qualified technician. In context, it is the analysis that is referred to here. The only evidence of analysis was by the technician that was the technician assigned to this case, and that is Constable Kachik. So, without dealing with the broader issue of whether if there were two active technicians hypothetically in a case doing it, whether that would be something that would contravene the section, as I read this, the evidence does not contradict the requirements of the section. In essence, that it is the evidence that the changing of the solution really has nothing to do with the analysis as such. And that is a common sense interpretation of this section as I apprehend it. So, I respectfully disagree with the second argument. I find that all of the elements of the case have been established by the Crown, as required by the Criminal Code, beyond a reasonable doubt in every respect.
ANALYSIS AND CONCLUSION
Issue: Sections 8 & 9 of the Charter
[21] Although only s. 8 was advanced at trial, at this appeal the appellant advances an argument that both ss. 8 & 9 of the Charter were breached. The appellant submits that the learned trial judge erred in not excluding the breath readings as the demanding officer did not have a reasonable suspicion that the appellant had alcohol in his body before demanding a roadside screening test which formed the basis of a demand for the breathalyzer tests.
[22] In R. v. Wang 2010 ONCA 435 the Court set out the following paras: 18-21:
As Shepherd makes clear, where appellate courts are called upon to review the trial judge’s conclusion on the issue whether the officer had reasonable and probable grounds, the appellate court must show deference to the trial judge’s findings of fact, but the trial judge’s ultimate ruling is a question of law reviewable on a standard of correctness.
In the instant case, no issue is taken with the fact that the officer had the requisite subjective belief. Moreover, there is no controversy about the facts on which he based his belief. The sole issue is whether his subjective belief was objectively reasonable in the circumstances. Neither court below had the benefit of Shepherd. Applying that standard and having regard to the undisputed facts, set out below, I am of the view that the trial judge erred in concluding that the officer’s subjective belief was not reasonable in the circumstances.
The facts, supporting a finding that the officer’s subjective belief was reasonable in the circumstances were as follows:
the appellant was driving at widely varying speeds below the speed limit as slow as 60 kilometres and as fast as 80 kilometres in a 90 kilometres an hour zone;
the appellant was driving in the middle lane of the three north bound lanes of the Don Valley Parkway and cars were passing her on both sides;
the appellant was repeatedly swerving within and between the lanes;
the appellant continued to drive for a significant distance while being signalled to pull over by police in a marked cruiser, first by flashing lights, then use of an electric air horn, and eventually by use of the car’s siren;
when she was eventually stopped, the appellant stopped in a live lane of traffic rather than on an available, albeit narrow, shoulder;
there was an obvious odour of alcoholic beverage coming from the appellant’s breath;
the appellant’s face was flushed; and
when initially questioned by the officer, the appellant admitted to having consumed one alcohol beverage. When the officer expressed disbelief, she changed her answer acknowledging that she may have had two.
In my view, these facts are sufficient, at law, to objectively support the officer’s subjective belief that the appellant was driving while impaired by alcohol. The fact that some of the traditional indicators of impairment, such as slurred speech and bloodshot eyes, were not present does not render the officer’s subjective belief, based on the signs he did observe, objectively unreasonable. As a result, I would find that the officer had reasonable and probable grounds to make the arrest and make the breath demand and that the appellant’s Charter claim must therefore fail.
[23] In R. v. Chehil 2013 SCC 49, 2013 S.C.C. 49 the Court dealt with the nature of reasonable suspicion commencing at para. 22. At paras. 26 to 29 the Court stated:
Reasonable suspicion derives its rigour from the requirement that it be based on objectively discernible facts, which can then be subjected to independent judicial scrutiny. This scrutiny is exacting, and must account for the totality of the circumstances. In Kang-Brown, Binnie J. provided the following definition of reasonable suspicion, at para. 75:
The “reasonable suspicion” standard is not a new juridical standard called into existence for the purposes of this case. “Suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity. A “reasonable” suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.
Thus, while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime. As a result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the more demanding reasonable and probable grounds standard.
The fact that reasonable suspicion deals with possibilities, rather than probabilities, necessarily means that in some cases the police will reasonably suspect that innocent people are involved in crime. In spite of this reality, properly conducted sniff searches that are based on reasonable suspicion are Charter-compliant in light of their minimally intrusive, narrowly targeted, and highly accurate nature: see Kang-Brown, at para. 60, per Binnie J. and A.M., at paras. 81-84, per Binnie J. However, the suspicion held by the police cannot be so broad that it descends to the level of generalized suspicion, which was described by Bastarache J., at para. 151 of A.M., as suspicion “that attaches to a particular activity or location rather than to a specific person.”
Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience: see R. v. Bramley, 2009 SKCA 49, 324 Sask. R. 286, at para. 60. A police officer’s grounds for reasonable suspicion cannot be assessed in isolation: see Monney, at para. 50.
[24] In R. v. Williams 2010 ONSC 1698 Justice Hill reviews in detail the reasonable suspicion standard at para: 44 as follows:
The contours of the reasonable suspicion standard may be summarized as follows:
"The reasonable suspicion standard is a pragmatic and balanced response to the realities of modern law enforcement": R. v. Kang-Brown, at para. 166 per Deschamps J., dissenting in the result.
Reasonableness comprehends a requirement of probability: Baron v. Canada (1993), 1993 154 (SCC), 78 C.C.C. (3d) 510 (S.C.C.) at 532.
The reasonable suspicion standard has been described as not "unduly onerous" (R. v. Mack, at 554) and "necessarily ...low": R. v. Cahill (1992), 1992 2129 (BC CA), 13 C.R. (4th) 327 (B.C.C.A.) at 339. It is an intermediate standard: R v. A.M. (2008), 2008 SCC 19, 230 C.C.C. (3d) 377 (S.C.C.) at para. 60, 82. Because reasonable suspicion "is a less demanding standard than reasonable grounds" (R. v. Bennett (1996), 1996 6344 (QC CA), 108 C.C.C. (3d) 175 (Que. C.A.) at 183), it has been correctly observed "that a reasonable suspicion will much more frequently be wrong than will be reasonable and probable grounds": T. Quigley, "Brief Investigative Detentions: A Critique of R. v. Simpson" (2004) 41 Alta. L. Rev. 935, at para. 20. Put differently, the reasonable grounds to suspect standard is a minimal level of belief which does not rule out the possibility of innocent conduct or "other reasonable possibilities": United States v. Gould, 364 F. 3d 578, 593 (5th Cir. 2004).
Binnie J., at para. 75 of R. v. Kang-Brown, observed:
The "reasonable suspicion" standard is not a new juridical standard called into existence for the purposes of this case. "Suspicion" is an expectation that the targeted individual is possibly engaged in some criminal activity. A "reasonable" suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds. As observed by P. Sankoff and S. Perrault, "Suspicious Searches: What's so Reasonable About Them?" (1999), 24 C.R. (5th) 123:
[T]he fundamental distinction between mere suspicion and reasonable suspicion lies in the fact that in the latter case, a sincerely held subjective belief is insufficient. Instead, to justify such a search, the suspicion must be supported by factual elements which can be adduced in evidence and permit an independent judicial assessment.
What distinguishes "reasonable suspicion" from the higher standard of "reasonable and probable grounds" is merely the degree of probability demonstrating that a person is involved in criminal activity, not the existence of objectively ascertainable facts which, in both cases, must exist to support the search. [pp. 125-26]
Writing about "reasonable suspicion" in the context of the entrapment defence, Lamer J. in R. v. Mack, 1988 24 (SCC), [1988] 2 S.C.R. 903, thought it unwise to elaborate "in the abstract" (p. 965). See also R. v. Cahill (1992), 1992 2129 (BC CA), 13 C.R. (4th) 327 (B.C.C.A.), at p. 339. However, in Alabama v. White, 496 U.S. 325 (1990), the U.S. Supreme Court contrasted "reasonable suspicion" with reasonable grounds of belief (or, what the U.S. lawyers call "probable cause"):
Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. [p. 330]
See also R. v. Lal (1998), 1998 4393 (BC CA), 130 C.C.C. (3d) 413 (B.C.C.A.) at 423 (leave to appeal refused [1999] S.C.C.A. No. 28) ("Since the standard for reasonable suspicion is less demanding than that for reasonable belief it can arise from information that is less reliable than that required to show reasonable belief"); R. v. Lewis (1998), 1998 7116 (ON CA), 122 C.C.C. (3d) 481 (Ont. C.A.) at para. 27 (anonymous informer tip and verification of some details only, falling short of Debot guidelines, nevertheless amounting to reasonable suspicion).
While a reasonable suspicion involves lesser probability than reasonable and probable grounds, it cannot be limited to a hunch or feeling without extrinsic evidence: R. v. Barnes, at para. 16. Accordingly, the standard is not a hunch based on intuition gained by experience (R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 at para. 30) or a well-educated guess: R. v. A.M., at para. 91. An officer's subjective belief must be accompanied by objectively verifiable evidence supporting reasonable suspicion: R. v. A.M., at para. 42, 80.
What is reasonable "by its very nature, must be assessed in context": R. v. Jackpine (2006), 2006 SCC 15, 207 C.C.C. (3d) 225 (S.C.C.) at 243. The totality of circumstances viewed as a whole must be considered: R. v. Jacques, 1996 174 (SCC), [1996] 3 S.C.R. 312 at para. 25. Reasonable suspicion "is dependent on both the content of the information provided to the police and its degree of reliability": R. v. Lal, at para. 30; R. v. Bennett, at 181. While the existence of reasonable suspicion is very much a fact-specific inquiry, "it is important that the test laid out in Mack not be applied in a mechanistic fashion. If it is, there is a danger that sight will be lost of the rationale for the defence of entrapment that has been elucidated in that decision": R. v. Benedetti, at para. 19.
[25] In the case at bar the learned trial judge listed the constellation of identifiable factors in assessing whether the officer held the necessary subjective belief and could reasonably have come to the conclusion on an objective justification. Those factors included the following:
The accused was driving a motor vehicle in Orangeville on April 24, 2011, when he was stopped by PC Mulligan of the Orangeville Police;
PC Mulligan saw the accused vehicle make a wider than normal right turn on a curve in the road prior to a stop sign on Townline at 0312 a.m.;
When the vehicle stopped at the stop sign he indicated with the turn signal he was going to turn right, but changed his mind to turn left. This turn to the left was away from a marked OPP cruiser that was stopped at an intersection toward the right with its emergency lights on. This struck the officer as odd since there was nothing to indicate any traffic accident where the OPP car was;
PC Mulligan followed the vehicle and noticed it was weaving slightly within its lane of travel although there was no obstructions on the roadway;
PC Mulligan then decided to make a traffic stop given the time of night, the observed driving behavior, thinking that perhaps everything was not all right with the driver;
When the officer activated his police emergency lights in the dark, it took approximately 10 seconds for the accused to stop which seemed to be a longer than usual time given the residential area and lighting;
He asked for a license; insurance and registration and noted the accused to be fumbling with his documents, meaning he could not pick one out of his hand and give it to the officer and was observed to be holding the insurance slip in his hand on three different occasions but was still looking for it;
The eyes of the accused were red rimmed and glossy and he detected a smell of alcohol from the accused and/or the vehicle although he noted there was a passenger as well.
[26] In his submissions the appellant focused significantly on one factor, the smell of alcohol. However, as I just set out there were many factors that were in play and the learned trial judge acknowledges in his reasons on the s. 8 ruling that an officer can be wrong. The learned trial judge stated:
But in relation to indicia or to grounds for suspicion, the officer had every right to rely on them objectively. Whether he was correct or not, he had a right to rely on them objectively.
[27] At para: 60 in Chehil the Court states:
A trial judge’s determination as to whether a constellation of factors relied on by the police in making the decision to deploy a sniffer dog gave rise to a reasonable suspicion is a question of mixed fact and law. While a trial judge is owed deference in relation to her factual findings, whether those factual findings support reasonable suspicion is a question of law, and as such is reviewable on the correctness standard: see R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20.
[28] I am not satisfied that the learned trial judge applied the wrong standard nor am I satisfied that he applied it incorrectly. This ground of appeal therefore fails.
Issue: Whether the trial failed to consider the requirement in s. 258 (I) (C) (iv).
[29] The learned trial judge did consider the appellant’s argument on this issue and I have already set out his reasons in dismissing that argument.
[30] I am not satisfied the learned trial judge committed any error in his analysis of that issue. In reviewing the testimony of both officers there is nothing on that evidentiary record to establish that this instrument was not working properly. Cst. Kachik testified that he was satisfied that the instrument was working properly.
[31] The fact that Cst. Mulligan changed the solution, a process that takes a matter of seconds and is very simple, and Cst. Kachik conducted tests is irrelevant. The section does not stipulate that it must be the same person who does both. The learned trial judge’s analysis on this issue was correct.
[32] The ground of appeal, therefore, fails.
Sentence Appeal
[33] The Crown submits that the sentence imposed was in the appropriate range and his discretion in doing so should not be interfered with. The high readings were an aggravating feature in this case. The increased fine and lengthier prohibition were not unreasonable in all of the circumstances.
[34] At trial the appellant suggested a larger fine and minimum prohibition period as the extended prohibition would have been more difficult for the appellant.
[35] The appellant argues that the learned trial judge erred by incorrectly assuming that it would be difficult for the appellant to pay a large fine.
[36] In his reasons the learned trial judge states:
In the result what I am going to do is this. You are a student so your financial ability is lessened. And there is going to be a fine in the amount of $1,200.00.
And in addition, sir, your privilege to operate a motor vehicle is prohibited for a period of 18 months.
[37] There is no doubt that the learned trial judge viewed the high readings (.201 and .212) as aggravating factors. The learned trial judge said this, “Two-hundred-and-one milligrams percent is an insanely high reading.”
[38] I am not satisfied the learned trial judge erred in handing down the sentence he did. It was entirely within his discretion to increase the period of driving prohibition. He was not bound by the appellant’s submission that a larger fine be imposed and the minimum driving prohibition be imposed. I cannot accept the appellant’s position that the learned trial judge erred because he commented that as a student his financial ability is lessened.
[39] The appellant’s counsel made submissions at this appeal that for employment reasons at this time a continued driving prohibition will be difficult for the appellant. On the evidentiary record before me I cannot find and conclude that the hardship advanced warrants a variation of the driving prohibition from 18 months to 12 months. On the evidentiary record at trial and before me I am satisfied that the sentence given was reasonable in all of the circumstances and for the reasons articulated by the learned trial judge.
[40] The sentence appeal is therefore, dismissed.
Disposition
[41] Appeal as to both conviction and sentence is dismissed.
Fragomeni, J.
Released: March 26, 2014
COURT FILE NO.: CR15/13
DATE: 20140326
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
DAVID NOEL SAMUEL WATT
REASONS FOR JUDGMENT
Fragomeni J.
Released: March 26, 2014