COURT FILE NO.: SCA (P) 176/13
DATE: 2014 07 07
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Mr. W. Dorsey, for the Respondent
Respondent
- and -
MAN-LUNG NG
Mr. P. Lindsay, for the Appellant
Appellant
HEARD: February 18, 2014
REASONS FOR JUDGMENT
[On appeal from the judgment of Justice B. Duncan dated January 7, 2013]
MacKenzie, J.
[1] The appellant appeals against his conviction for driving with excess blood alcohol (“over 80”), contrary to s. 253(1)(b) of the Criminal Code, on March 1^st^, 2013, pursuant to a Ruling released on January 7, 2013 in relation to the appellant’s Charter application under s. 8 of the Charter of Rights and Freedoms. In this application, the appellant sought an exclusion of the breath sample evidence taken by police officers, pursuant to s. 24(2) of the Charter.
[2] The Crown’s evidence was heard beginning on May 2^nd^, 2012 with submissions made on or about October 19^th^, 2012 and December 11^th^, 2012 with respect to the appellant’s application. The appellant elected to call no evidence on the trial proper.
[3] The appellant sought in his appeal an order allowing the appeal, granting the Charter application and dismissing the charge, or in the alternative, an order allowing the appeal and ordering a new trial. On the hearing of the appeal, the appellant revised his relief in terms of the proposed disposition by seeking an order allowing the appeal but ordering a new trial.
[4] The grounds of appeal as set out in the Notice of Appeal are that the learned trial judge erred in law:
in dismissing a Charter application to exclude breath test results, pursuant to sections 8, 9 and 24(2) of the Charter;
in finding that there were reasonable grounds for the police to demand breath samples from the appellant and in misapprehending the evidence in concluding that there were such reasonable grounds; and
in giving insufficient reasons for finding the existence of reasonable grounds to demand breath samples from the appellant.
ANALYSIS
[5] The appellant’s factual summary as set out in his factum is essentially agreed to by the respondent except that the respondent’s position respecting the facts recited in paragraph 25 of the appellant’s factum relating to the cross-examination of Constable Jones, the first officer on the scene where the appellant’s vehicle was pulled over to the side of the road. Constable Jones in his cross-examination was unable to recall whether the appellant was stepping down from the top of the curb to the road pavement or if Constable Gorrill, the arresting officer, had told the appellant to give her some space or if the appellant had backed up and stood up on the curb. Jones conceded that such things may or may not have happened.
[6] In the overall scheme of the case, in terms of factual relevance to the issues raised, I am not persuaded that this creates any significant impact on the outcome of the appeal.
[7] Briefly, the appellant, on the evidence of Constable Jones, was driving towards him at approximately 4:08 in the morning on December 18^th^, 2010 at an excessive rate of speed. Jones then pursued the appellant’s motor vehicle, observing that at times the vehicle was straddling two lanes on the street in question. After Jones activated his lights and siren for a few seconds, the appellant’s car pulled to the street side.
[8] When he approached the appellant in his vehicle he observed that the appellant was “coughing, sneezing, full of cold.” He then requested the appellant produce his driver’s licence and observed the appellant had some trouble retrieving his driver’s licence from his wallet. He asked the appellant if he had been drinking and he said the appellant responded that he had “a beer, about two hours ago.”
[9] He then removed the appellant from his own vehicle and had him sit in the police cruiser while some checks were conducted; he testified at this point he started to smell alcohol. In the result, Jones requested an approved screening device (ASD) be brought to the scene as he did not have one in his vehicle.
[10] Constable Gorrill then attended at the scene and received Jones’ observations respecting the appellant’s driving conduct and stated the reason why he wanted the ASD.
[11] Jones further testified that on the appellant’s walk from his police cruiser to Constable Gorrill’s cruiser, the appellant appeared to be really unsteady on his feet but then qualified this by saying the appellant was not so much unsteady as walking in a slow and deliberate fashion. He also testified that as they got close to Gorrill’s vehicle, the appellant actually bumped into the door and reached forward for the ASD. At this point Gorrill arrested the appellant for impaired operation of a motor vehicle.
[12] Jones allowed that he did not think the appellant was impaired when he was seated in his cruiser but he thought that perhaps his ability was affected, although in cross-examination he did allow that he simply had a suspicion that the appellant had alcohol in his body and he (Jones) did not have grounds to arrest the appellant for impaired operation of a vehicle.
[13] Gorrill’s evidence was that at the time of her arrival at the scene the appellant was in the rear seat of Jones’ police cruiser and she received from Jones his observations about the appellant’s driving leading up to his stopping the appellant. She said this was the entirety of her conversation with Jones upon her arrival at the scene.
[14] She allowed that she spoke with the appellant while he was seated in the rear of Jones’ cruiser while she was standing at the door to the rear seat, that at this point she noted an odour of alcohol coming from the appellant and that he had a cold of some sort as he was congested and had a runny nose. She said she then asked the appellant to step out of Jones’ cruiser and accompany her to her cruiser where she had the ASD set up. She noted the appellant did comply and at this point he was standing up on the curb while Gorrill was standing below him on the road pavement. She said that in his eagerness to perform the test, the appellant reached for the ASD and in so doing he stepped off the curb and made direct but minor contact with her right shoulder. She said she then asked the appellant to give her some space and stand back on the grass curb area. He complied with this direction but she said he was unsteady at this point, tripping on his way back onto the curb and that this unsteadiness lasted for “like, half a second.” She testified that based on these events plus the information respecting the appellant’s driving that she had received from Jones, she arrested the appellant for impaired operation of a motor vehicle at approximately 4:26 a.m.
[15] In the course of her cross-examination, Gorrill agreed the appellant had had no difficulty getting out of Jones’ cruiser and he had no difficulty walking over to a grassy area beside her cruiser. She stated she was still intending to administer the ASD and had not at that point decided to arrest him for impaired operation of a motor vehicle. She acknowledged that the odour of alcohol would simply indicates consumption and does not establish impairment. She did, however, note that the appellant’s brief period of over-eagerness and unsteadiness was “the straw that broke the camel’s back” in terms of moving from the ASD test to the arrest for impaired operation of a motor vehicle. She noted other than this brief unsteadiness at the curb, there was no other unsteadiness that she observed in her dealings with the appellant and she made no observations of any slurred speech, flushed face or blood shot eyes.
[16] As noted above, the appellant called no evidence at the hearing and this was the sole evidence adduced on behalf of the respondent.
[17] The first ground of appeal relates to the sufficiency of the trial judge’s reasons for his Ruling on the s. 8 Charter application. The trial judge in his brief reasons on the issue of whether there were reasonable grounds for the arrest and breath demand made of the appellant noted that the case law provided that in assessing the sufficiency of reasonable grounds,
It is important to keep in mind that the issue is whether there were grounds to believe in impairment to even a slight degree.
and,
It suffices to say that in my view, the evidence in this case set out above, provided reasonable grounds for the arrest and demand[^2]. Accordingly, this argument is rejected.
(See page 7, paras. 17 and 18 of the Reasons for Ruling)
[^2]: The summary is a compendium of the indicia noted by the two officers. Gorrill did not note any unsteadiness in the short walk between the police cars. Even without that factor, I conclude that she had sufficient grounds. (see page 7, para. 18, footnote 2)
[18] The appellant contends that on the authority of R. v. Sheppard, 2002 SCC 26, [2002] S.C.J. No. 30, these reasons were insufficient on two bases:
the appellant was left in doubt about why a conviction was entered against him; and
the lack of reasons in this case prevent the appellate court from effectively reviewing the decision of the trial judge.
[19]
[20] Although the appellant acknowledges that the trial judge did provide a summary of the facts at the beginning of the Ruling prior to the passages cited above, counsel submits that the trial judge failed to properly deal with inconsistencies between the evidence of the officers and failed to state which indicia of impairment he relied upon in finding that Gorrill had reasonable and probable grounds. Counsel refers at length to inconsistencies in the evidence of the two officers in relating to the issue of whether the appellant was unsteady on his feet in his short walk from Jones’ police vehicle to Gorrill’s police vehicle.
[21] Counsel contends that the trial judge erred in law in failing to deal with these inconsistencies and that the appellant would be unable to ascertain the reason why he was ultimately convicted and it was unclear as to what grounds the trial judge relied on and the reasons by which evidence was accepted or rejected by him.
[22] In response to these submissions, the respondent notes that at the hearing, both the appellant and the respondent through counsel asked the trial judge to focus on three main factors in Gorrill’s evidence in deciding whether reasonable and probable grounds objectively existed. These three factors are as follows:
the hearsay evidence of the appellant’s driving as relayed by Jones;
the strong odour of alcohol Gorrill smelled on the appellant’s breath, and
The unsteadiness and clumsiness that the appellant briefly displayed as he was about to do the ASD test.
[23] Counsel for the respondent notes that neither the appellant nor the respondent submitted that Jones’ evidence as to the appellant’s unsteady walking was even a factor to be considered in assessing whether reasonable and probably grounds existed, let alone make any mention of its inconsistency with Gorrill’s evidence on that point: (see respondent’s factum, page 4, paragraph 7).
[24] In this regard, counsel for the respondent contends that any inconsistencies between the evidence of Jones and Gorrill as to whether the appellant had walked unsteadily or with sure balance and whether he had bumped into Gorrill’s shoulder at the police cruiser were not live issues at trial. The respondent submits they were not lives issues since Jones’ evidence as to the unsteady walking and what occurred between Gorrill and the appellant was significantly undermined, in terms of perception and recall, by counsel for the appellant in cross-examination. As well, the submissions of counsel for the appellant implicitly accepted the reliability of Gorrill’s evidence: no suggestion was made that, as a result of any inconsistency between her evidence and that of Jones or for any other reason, Gorrill’s evidence ought to be discredited or given less weight.
[25] Counsel points out that a trial judge need not expound on evidence which is uncontroversial or detail his or her finding on each piece of evidence or controverted fact, so long as the findings linking the evidence to the verdict can be logically discerned: See R. v. R.E.M., [2008], 3 S.C.R. (3) at para. 20.
[26] The respondent contends the trial judge’s reasons for the ruling in their entirety reveal why he made the decision he did in light of what was framed as a central issue, namely, whether Gorrill’s evidence afforded her with grounds to make an arrest. Accordingly, it is submitted that his findings linking the evidence to his verdict can be logically discerned, even though a review of his decision seems to suggest that he was nonetheless alive to the inconsistencies that are the subject of this ground of appeal. Gorrill’s evidence as to the unsteadiness that the appellant displayed on his feet around the time the ASD test was to be administered, together with the grounds from Jones as to the evidence of the appellant’s driving, was sufficient to meet the objective test of whether there were reasonable grounds to believe the appellant’s ability to drive was even slightly impaired by the consumption of alcohol: in support, counsel sites R. v. Stellato, 1993 CanLII 3375 (ON CA), [1993] 78 C.C.C. (3d) 380 (O.C.A).
[27] I accept the submissions of the respondent on this ground of appeal and reject the arguments of the appellant therein.
[28] The second ground of appeal is that the trial judge erred in law in misapprehending the evidence in concluding there were reasonable grounds for the demand for a breath sample made of the appellant. The focus of the misapprehension by the trial judge is that in his reasons he made a mistake as to the substance of the evidence of Gorrill and Jones.
[29] The appellant refers to the evidence of Jones as the first officer arriving on the scene in relation to the appellant’s driving behaviour prior to being stopped, his admission of alcohol consumption, the difficulty in retrieving his driver’s licence and the odour of alcohol on his breath. In this regard, upon Gorrill’s arrival with the ASD equipment, her evidence was that she was briefed by Jones as to the appellant’s driving conduct but received no information from Jones as to the appellant’s admission of alcohol consumption or difficulties experienced by the appellant in retrieving his driver’s licence. Gorrill testified she observed the appellant’s unsteadiness on his feet, as outlined above, in attempting to administer the ASD test. She described the appellant’s unsteadiness on his feet while attempting to administer the ASD test as “the straw that broke the camel’s back”: see para. 15 in Reasons for Ruling. Gorrill’s metaphor of “the straw that broke the camel’s back” is arguably the tipping point for her decision and conclusion that she had reasonable grounds to arrest the accused.
[30] In his submissions, counsel for the appellant submits that even if it is found that Constable Gorrill had an honest subjective belief that [the appellant was operating a motor vehicle while his ability was impaired], no reasonable person in the place of the officer would conclude there were reasonable and probable grounds for the arrest based on the information and observations made by the officer. (see paragraph 50, appellant’s factum)
[31] Having regard to the evidence and Reasons for the Ruling as a whole, I am not persuaded that the trial judge erred in law in misapprehending the evidence in concluding there were reasonable grounds for the breath sample demand and arrest of the appellant.
[32] I turn now to the ground of appeal that the breath sample evidence should be excluded under s. 24(2) of the Charter, based on the breach of the appellant’s s. 8 and s. 9 Charter rights.
[33] The appellant contends there was a breach of the appellant’s s. 9 Charter right as a result of arbitrary detention by being placed in the back of the police cruiser while the officer continued the investigation. Counsel points out that if the trial judge erred in finding that the appellant’s s. 8 Charter right had not been violated, then the breath sample evidence should be excluded under s. 24(2) of the Charter.
[34] In this regard, counsel deals with the first factor in the analysis for exclusion of evidence under s. 24(2), namely, the seriousness of the breach of the subject Charter right. In this regard, counsel argues that if the s. 8 Charter right violation is established, then it was a serious breach of the appellant’s Charter rights since the officer in question did not have reasonable and probable grounds to make the arrest for “impaired operation”.
[35] The respondent, quite apart from the position that there were reasonable and probable grounds to make the arrest for impaired operation of a motor vehicle, contends there was no bad faith in the conduct of the two police officers at the scene and Jones pulled the appellant over due to his driving conduct and read the appellant his rights while waiting for another officer to bring the ASD. With respect to Gorrill, it is not in issue that she had a subjective belief there were grounds to arrest the appellant and it is contended those grounds (odour of alcohol on his breath and unsteadiness on his feet) were objectively valid. In this regard, the respondent contends that if there was a breach of the appellant’s Charter rights such breach was minimally serious in the circumstances of the case. I accept these submissions.
[36] On the impact of the breach on the Charter interests of the appellant, the appellant alludes to the following dictum from R. v. Au-Yeung 2010 ONSC 2292,
…the demands placed on a driver to facilitate these tests [breach sample test] are often not minimally intrusive. (see para. 61)
Counsel contends that the breach which resulted in the appellant’s detention, arrest and being held in a police station for a number of hours prior to release were a significant impact on his Charter interests and that such a factor should weigh in favour of the exclusion of the evidence. In my view, this argument confuses the results of the demands, i.e. breath sample demands, with the taking of the breath sample. I am not persuaded that the overall view of the view expounded in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 providing for breath samples being “minimally intrusive” is rendered inapplicable in the circumstances of this case by the decision in Au-Yeung.
[37] I turn to the third factor, namely, the interest of society in the adjudication of cases on the merits. Both the appellant and the respondent acknowledge that society’s interest in the adjudication of drinking and driving related offences favours inclusion of breath sample evidence.
[38] The appellant relies on the dicta in Au-Yeung to the effect that,
The public must have confidence in the competence of the police and in the fact that they will not detain or arrest drivers without the requisite grounds. (see para. 69)
[39] Although the statement appears to rely on dicta coming from the Supreme Court in the case of R. v. Morelli, I am not persuaded that the trial judge erred in ruling that the breath sample evidence should be excluded, even on the trial judge “assuming there was a violation of s. 9.” (emphasis added)
[40] In the result, the appeal is dismissed.
MacKenzie J
DATE: July 7, 2014
COURT FILE NO.: SCA (P) 176/13
DATE: 2014 07 07
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
MAN-LUNG NG
Appellant
REASONS FOR JUDGMENT
MACKENZIE J
DATE: July 7, 2014