ONTARIO

SUPERIOR COURT OF JUSTICE

NEWMARKET COURT FILE NO.: CR-12-007350

DATE: 20140912

BETWEEN:

Her Majesty the Queen

– and –

Quenton Hunt

Respondent

Bradley Juriansz, for the Crown

Paul Burstein, for the Respondent

HEARD: August 1, 2014

Cases cited:

H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401

R. v. Shepherd, 2009 SCC 35, [2009] S.C.J. No. 35

R. v. MacMillan, 2013 ONCA 109, [2013] O.J. No. 727 (C.A.)

R. v. Bush, [2010] O.J. No. 453 (C.A.)

R. v. Brown, [2014] ONSC 1383 (S.C.J.)

R. v. Mastromartino, 2004 28770 (ON SC), [2004] O.J. No. 1435 (S.C.J.)

R. v. Cuthbertson, [2003] A.J. No. 800 (Prov. Ct.)

R. v. Austin, [2009] O.J. No. 4122 (O.C.J.)

R. v. Burnshaw, 1995 150 (SCC), [1995] 1 S.C.R. 254

R. v. McClelland, 1995 ABCA 199, [1995] A.J. No. 539 (C.A.)

R. v. Haas, 2005 26440 (ON CA), [2005] O.J. No. 3160 (C.A.)

R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241

R. v. Stellato (1993), 1993 3375 (ON CA), 12 O.R. (3d) 90 (C.A.); aff’d 1994 94 (SCC), [1994] 2 S.C.R. 478

REASONS FOR JUDGMENT

VALLEE J.:

Overview

[1] This is a Crown appeal of a decision in which the trial judge found that adequate indicia of alcohol impairment did not exist and, therefore, the arresting officer did not have reasonable and probable grounds for arrest. He found that section 8 of the Charter had been breached and excluded the subsequent breath samples pursuant to section 24(2) of the Charter. The Crown appeals the trial judge’s finding on the impaired driving charge. The Crown did not make submissions regarding section 8 of the Charter.

Chronology

[2] On August 25, 2012, at 2:33 a.m., Mr. Anthony Hanna, a civilian witness who was travelling eastbound on Stouffville Road, saw a vehicle ahead of him swerve into the westbound oncoming lane, almost go into the westbound ditch, and then swerve back to the eastbound land and almost go into that ditch. Mr. Hanna observed further swerves while he followed the vehicle although they were not as severe as the first one. The vehicle was travelling at over 80 kilometers per hour for a short time, and then the speed dropped to between 60 to 85 kilometers per hour. Mr. Hanna called 911 to report a vehicle “going all over the road.” He observed the vehicle over a 10 to 15 minute time interval. The police dispatcher asked Mr. Hanna to continue to follow the vehicle.

[3] At 3:53 a.m. Police Constable Cofaru was dispatched to locate the vehicle.

[4] At 3:56 a.m. P.C. Cofaru observed the vehicle, which Mr. Hanna was still following. The vehicle stopped for a red light and then drove through an intersection with its high beam headlights on.

[5] At 3:58 a.m. P.C. Cofaru made a traffic stop and the vehicle pulled over.

[6] Mr. Hunt, the respondent, was driving the vehicle. At the officer’s request, he provided his driver’s licence and insurance documents.

[7] P.C. Cofaru smelled alcohol on Mr. Hunt’s breath. He noticed that Mr. Hunt had slurred speech, was barely opening his mouth to talk and was speaking oddly.

[8] At 3:59 a.m. P.C.s Masson and Halimic arrived. P.C. Masson spoke to Mr. Hunt and to P.C. Cofaru. P.C. Masson learned from P.C. Cofaru that Mr. Hanna had observed Mr. Hunt’s vehicle swerving and crossing the center line at least four times. When P.C. Masson returned to Mr. Hunt’s vehicle, he was smoking and leaning against side of vehicle. He was speaking in such a low tone that she had trouble hearing him.

[9] Mr. Hunt denied having anything to drink. P.C. Masson told him she could smell alcohol on his breath and questioned why this would be. Mr. Hunt’s reply was that he had alcohol in the vehicle. P.C. Masson noticed that Mr. Hunt’s pupils were dilated.

[10] At 4:05 a.m. P.C. Masson arrested Mr. Hunt. He was searched and put in back of P.C. Corfaru’s cruiser.

[11] At 4:09 a.m. P.C. Cofaru read Mr. Hunt his rights to counsel and cautioned him.

[12] At 4:13 a.m. P.C. Cofaru read Mr. Hunt a breath demand.

[13] At 4:16 a.m. P.C. Corafu left the scene with Mr. Hunt and arrived at the police station at 4:27 a.m. The booking procedure was completed by 4:38 a.m. At 5:09 a.m. Mr. Hunt spoke to duty counsel on the phone. Subsequently, he provided breath samples which measured 126 and 123 milligrams of alcohol in 100 millilitres of blood, respectively. Breath technician, P.C. Gifuni, administered the testing.

[14] P.C. Gifuni noted on the alcohol influence report (“AIR”) that the effects of alcohol were slight. The options to check off on the AIR were “none, slight and obvious”. He indicated “slight” because there was an odour of alcohol.

[15] Jean-Paul Palmentier, a toxicologist employed by the Centre of Forensic Sciences, gave evidence at trial that Mr. Hunt’s blood alcohol would have been between 120 and 150 milligrams of alcohol in 100 millilitres of blood at the time of the event.

Police Officers’ Evidence at Trial

[16] P.C. Masson gave evidence that when she arrested Mr. Hunt, she did not make a roadside demand. She stated that she had sufficient grounds to believe that the offence of driving “over 80” had been committed on basis of the driving evidence, and the fact that Mr. Hunt smelled of alcohol. P.C. Cofaru had no entry in his notes to show that he formed the opinion that Mr. Hunt was impaired; however, he was not the arresting officer.

[17] Regarding other indicia of impairment, the police officers made different observations of Mr. Hunt. With respect to his eyes, P.C. Masson said his pupils were dilated. P.C. Cofaru said they were normal. P.C. Gifuni said they were watery. There was no evidence that Mr. Hunt had trouble with his balance or motor skills. With respect to his speech, P.C. Cofaru gave evidence that it was slurred. Mr. Hunt barely opened his mouth, used a low tone and was hard to understand. P.C. Masson also said Mr. Hunt’s tone was low and hard to hear, but his speech was not slurred.

[18] It should be noted that P.C. Cofaru, P.C. Masson and P.C. Gifuni all gave evidence that Mr. Hunt’s mouth smelled of alcohol. P.C. Masson stated that when she first spoke to Mr. Hunt, he was smoking. She noticed a smell of alcohol coming from his mouth. After he extinguished the cigarette, the odour was very strong.

[19] The trial judge concluded that he could not rely on the officers’ evidence regarding indicia of impairment because they gave inconsistent evidence relating to Mr. Hunt's eyes and speech. Mr. Hunt’s balance seemed normal. He held that an odour of alcohol and prior bad driving did not provide an objectively reasonable basis for concluding that Mr. Hunt’s ability to drive was impaired, let alone impaired by alcohol. The evidence would provide a suspicion which mandated use of an Alert device.

The Standard for Review

[20] Both the Crown and the respondent agree on the standard of review which is set out in the Crown’s factum. I will paraphrase the relevant sections of the factum. Where an error of fact can be isolated, the appropriate standard of review is palpable and overriding error. This would include findings that are clearly wrong, unreasonable or not reasonably supported by the evidence. Where an error of law can be isolated, the appropriate standard of review is correctness. Deference to the trial judge’s findings is owed regarding findings of mixed fact and law. (See H.L. v. Canada (Attorney General) at paras. 52 – 61 and 110.) The application of a legal standard to a set of facts is a question of law and is reviewable on the standard of correctness. (See R. v. Shepherd at para. 20.)

[21] An appellate court owes considerable deference to the trial judge’s decision regarding whether evidence should be excluded under section 24(2) of the Charter where the trial judge has considered the proper factors. Where errors by the trial judge affect the section 24(2) analysis, an appellate court may balance the various factors without the usual deference. (See R. v. MacMillan at paras. 43, 44 and 93.)

Did the Trial Judge Make an Error in Law and/or a Palpable and Overriding Error with Respect to a Fact?

[22] The trial judge considered whether sufficient indicia of impairment actually existed upon which the arresting officer could conclude that she had reasonable and probable grounds. As noted above, the officers gave inconsistent evidence regarding common indicia of impairment, including the condition of Mr. Hunt’s eyes and his speech. The trial judge considered the officers’ conflicting testimony regarding indicia of impairment and asked himself whether he could find that these indicia actually existed. Because the officers’ evidence was inconsistent, the trial judge found that it lacked credibility on these points. Accordingly, he determined that the arresting officer’s investigation produced only evidence that Mr. Hunt smelled of alcohol and had been driving poorly. He concluded that this was not sufficient for the arresting officer to form a belief that an offence had been committed.

The Appellant Crown’s Position

[23] The Crown argues that the trial judge’s method of analysis in which he considered of whether the indicia actually existed resulted in an error in law. The essence of the Crown’s appeal is that the trial judge should not have been concerned about the ultimate correctness of the facts regarding the indicia. The important consideration is not whether the officer’s belief was accurate, but rather whether it was reasonable for the officer to hold the belief on the roadside, at the time of arrest, even if the officer misunderstood the facts at that time. (See R. v. Bush at para. 66.) The actual event is the pertinent time for evaluation of an officer’s belief. (See R. v. Brown at para. 36.) The trial judge ought to have measured what the officer understood when the belief was formed at the roadside, not what was proved at trial. (See R. v. Mastromartino at para. 25.) With respect to section 8 of the Charter, it does not matter if the belief is inconsistent with facts that are learned later at trial. The trial judge asked himself whether he could find that Mr. Hunt’s pupils were dilated and whether his speech was slurred. According to his analysis, he needed to find that these signs existed to support the officer’s belief. The Crown argues that this is incorrect. The trial judge was doing a trial analysis and then importing this to section 8. As stated in Bush, whether the officer was ultimately wrong about the signs of impairment is not determinative, so the trial judge should not have carried out an analysis as to whether the indicia actually existed.

[24] The Crown argues that on a subjective analysis, the trial judge should have considered only what was known by or available to the officer, whether the officer did hold the belief that an offence had been committed, and whether there was a reasonable basis for the officer to believe it, even if turned out to be wrong. The trial judge should have asked himself whether the officer was reasonably making these observations and developing a belief. With respect to an objective evaluation, the trial judge should have considered whether there was a reasonable basis for a person in the officer’s shoes to believe that an offence had been committed. He should have asked himself whether the indicia observed could support the belief that there were reasonable and probable grounds. The court should not look over the officer’s shoulder to see whether or not the circumstances, as understood by the officer, were true. The court must weigh the circumstances as they were understood by the officer to determine whether the officer had reasonable and probable grounds. The court must also weigh the circumstances as understood by the officer to determine their reasonableness and probability. While the Crown bears the onus on a section 8 application, the Crown does not have to prove that each indicium existed on a balance of probabilities. (See R. v. Cuthbertson at paras. 45 and 46.)

[25] The trial judge relied on R. v. Austin which supported his reasons; however, the Crown argues that Austin is incorrectly decided. Austin states that evaluation of reasonable and probable grounds is a matter of fact, whereas it is properly a matter of law. The trial judge should not have relied on this case. It is concerned primarily with the issue of deference. The defendant argues that the trial judge was making findings of credibility and reliability. He was not making findings based on fact. In paragraphs 29, 30 and 32 of the trial judge’s decision, it is clear that he was inquiring into whether there were actually indicia of impairment. The questions set out in the decision that the trial judge asked himself, such as, “Can I make a finding….”

[26] The Crown also notes that the respondent relies on R. v. Burnshaw; however, it is important to understand the context of the decision. The court was considering whether officers who stop drivers should be able to delay the administration of a breath test due to concerns about mouth alcohol, which could skew the results. The court was trying to balance a delay, in which the issue of rights to counsel could arise, in contrast to the need for the officers to be confident that they can rely on the test. In Burnshaw, the court concluded that officers should not administer breath tests when they know that the results could be skewed due to mouth alcohol, because if the driver fails the test, the officer will not have the subjective belief required for reasonable and probable grounds. Although Burnshaw states that a finding of reasonable and probable grounds is a finding of fact, not one of pure law, the court was reviewing the subjective aspect relating to a roadside screening device. The court in Burnshaw did not consider the same issues that are the subject of this appeal.

The Respondent’s Position

[27] The respondent states that the Crown is urging this court to re-weigh the trial judge’s factual findings, which would be improper. The trial judge made findings of credibility which he was entitled to do. The trial judge concluded that the smell of alcohol and evidence of bad driving was not enough, in the circumstances, for the arresting officer to form reasonable and probable grounds. There was no evidence at trial that odour of alcohol means that a person has recently consumed a quantity of alcohol.

[28] The Crown’s position is that the trial judge was obliged to accept police testimony about what they observed. In fact, the Crown states in its factum that with respect to the objective analysis, the observations are “assumed to be true.” There is no authority for the argument that evidence given by the police is assumed to be true. Evidence after the fact can be used to assess whether the officer really did see what she claims to have seen, which formed the basis for reasonable and probable grounds.

[29] In Bush, there was no dispute about the police evidence. The issue was whether it could form the basis for reasonable and probable grounds. A fact based analysis is required to determine whether reasonable and probable grounds existed. An officer’s understanding of the facts must be reasonable, and based on facts known by or available to the officer when he or she formed the belief. (See R. v. McLellan at para. 21.) The trial judge was correct in his exercise of finding whether indicia of alcohol consumption actually existed. Section 8 requires that reasonable and probable grounds exist in fact, and not that their presence can be deemed to exist notwithstanding the evidence. (See R. v. Haas at para. 30.) The trial judge concluded that the other common indicia of impairment did not exist and, therefore, the officer’s belief that she had reasonable and probable grounds was not supported.

[30] The question of whether there are reasonable and probable grounds is essentially a question of fact, not pure law. (See Burnshaw at para. 46.) The trial judge appropriately relied on Austin, because in that case the court found the evidence to be so unreliable that there was nothing upon which to base reasonable and probable grounds. The only evidence regarding whether Mr. Hunt was impaired by alcohol was that given by the officers. There were no independent witnesses regarding that issue. The civilian could only give evidence of bad driving. The trial judge found the officers’ evidence to be unreliable. Accordingly, his conclusion that the officer did not have reasonable and probable grounds was correct.

Analysis

[31] The trial judge’s written reasons for judgment were attached to the transcript of his oral reasons for judgment, delivered on October 11, 2013. In paragraph 29 of the trial judge’s written reasons, he noted the contradictions in the police officers’ evidence and non-observance of indicia, and asked himself whether he could make a finding, on a balance of probabilities, that reasonable and probable grounds were present to allow the police to arrest for impaired driving rather than resort to the ASD. Further, in paragraph 32, he stated, “…can this court, even at this stage, be satisfied that the applicant’s pupils were dilated given the direct contradiction in the evidence? … Can this court conclude the applicant slurred his speech? … There is no dispute about the odour of alcohol coming from the mouth of the applicant.” [emphasis added] He commented further that what the arresting officer did, “i.e. in terms of having reasonable and probable grounds, does not conform to what the Supreme Court stated in Shepherd, and indeed what Durno J. articulated in Bush.” (See paras. 35 and 39.) He concluded that odour of alcohol and bad driving provides only a suspicion of impaired driving which mandated the use of the alert device. Therefore, there was a section 8 Charter violation. (See paras. 35 and 39.)

[32] The Crown argued that the issue of reasonable and probable grounds is a question of law. The defence argued that it is a question of fact. The Supreme Court of Canada commented that the issue is grounded in the factual findings of the trial judge. The issue of whether the facts found by the trial judge amount at law to reasonable and probable grounds is a question of law. (See Shepherd at para. 20.)

[33] There was no question that there was an odour of alcohol coming from Mr. Hunt’s mouth, even when he was smoking. P.C. Masson described it as strong once Mr. Hunt extinguished his cigarette. It is an understatement to say that Mr. Hunt’s driving was poor. He was driving in a life-threatening manner. He crossed the oncoming lane several times and almost went into the ditch twice. If there had been an oncoming car, a collision likely would have happened.

[34] Evidence which arose or came to light subsequent to the formation of the belief is not relevant in determining whether the police officer had reasonable and probable grounds for her belief at the time she formed it. It is neither necessary nor desirable to conduct an impaired driving trial as a threshold exercise in determining whether the officer’s belief was reasonable. (See McLellan paras. 22 and 55.) In asking himself the questions noted above, the trial judge was looking for a prima facie case. He was essentially conducting a trial as a threshold exercise. The Supreme Court of Canada has stated that police need not demonstrate anything more than reasonable and probable grounds. They are not required to establish a prima facie case for conviction before making the arrest. (See R. v. Storrey at para. 17.)

[35] The trial judge had to consider whether the facts supported reasonable and probable grounds. He concluded that they did not. He made an error in law in reaching this conclusion because if the defendant’s ability to drive was even slightly impaired by alcohol, that is sufficient. The Criminal Code does not prescribe any special test for determining impairment. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence is made out. The test is whether, objectively, there are reasonable and probable grounds to believe that the suspect’s ability to drive is even slightly impaired by the consumption of alcohol. (See R. v. Stellato at page 6.)

Ruling

[36] The trial judge erred in law in finding that the officer’s subjective belief that Mr. Hunt was impaired was not supported by an objective foundation. He combined the requirements for reasonable and probable grounds with an analysis of all of the evidence to determine whether impaired driving was proven. He erred in blending both together and dismissing the charge. Evidence of life-threatening driving together with a strong odour of alcohol coming from the defendant’s mouth was consistent with intoxication. The evidence was sufficient to provide P.C. Masson with reasonable grounds to believe that an offence had been committed. The arrest was lawful.

[37] The appeal is allowed, a new trial is ordered and the matter is remitted back to the Ontario Court of Justice for that purpose.

Justice M.E. Vallee

Released: September 12, 2014