NEWMARKET COURT FILE AND PARTIES

COURT FILE NO.: 12-C7179

DATE: 20140912

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN
Appellant

– and –

YUNHUA SU
Respondent

Bradley Juriansz for the Crown, Appellant

Peter Lindsay for the Respondent

HEARD: December 13, 2013

On Appeal of the Judgment of The Honourable Justice Bourque
dated March 05, 2013

H.K. O’CONNELL J.

Overview

[1] The respondent was acquitted on March 05, 2013 at Newmarket on a charge of “over 80”. The offence alleged occurred on August 26, 2012 at Markham.

[2] The crown appeals on the following basis:

The trial judge misapprehended the evidence and made an error in law in relation to the issue of:

Whether the s. 8 and 9 Charter rights of the Respondent were breached, and if they were, the appropriate remedy pursuant to s. 24(2) of the Charter.

And such further and other grounds as counsel advises and the court permits.

[3] I will only reference the evidence that is germane to the appeal issues, given that the trial judge rejected the other legal issues raised by the respondent.

The Trial

Evidence in Chief of Officer West

[4] The trial was short with the evidence heard on January 03, 2013. Submissions were made on February 25, 2012.

[5] The evidence consisted solely of that of one witness, Police Cst. Andre West of the York Regional Police. The defence called no case.

[6] Officer West testified that he was on duty on August 26, 2012. He was in uniform driving a police cruiser. He said he first observed the car that the respondent was driving at 3:15 on the date in question. He observed it as he was leaving from the police station in his cruiser. He observed the vehicle tailgating another car, cutting in front of another vehicle quickly, and speeding. The vehicle was paced at 75 kilometres in a 60 kilometre zone.

[7] The officer followed the car with the intent to stop the driver for speeding. The respondent had thrown a cigarette butt out of her car which bounced off the cruiser’s hood. The officer activated his lights and siren.

[8] The driver complied and pulled her vehicle, a Honda civic, over to the curb lane “almost immediately.” The officer approached the driver, asked for her licence, ownership and insurance. She responded “yes”. The officer smelt alcohol coming from her mouth, which he described as a “strong odour”.

[9] The officer asked her if she had been drinking, to which she replied she had one or two drinks.

[10] It was conceded by the defence that this utterance was relevant to “grounds.” The officer noted that the driver’s eyes were glassy and bloodshot.

[11] Although he had a ‘Drager’ with him, which is an approved screening device (ASD), the battery was dead. As a consequence at 3:25 am the officer called a second unit over to bring an ASD device.

[12] The driver was advised pending arrival of the ASD, that she was going to be asked to blow into a device to determine whether she should be driving at the time.

[13] At 3:28 a.m. officer Rajpaul (ph) Singh arrived with an ASD. Officer West confirmed that the ASD was calibrated by officer Singh. Between 3:25 a.m. when the request was made for another officer to attend and 3:28 when officer Singh arrived on scene, the officer discerned that the documentation that the respondent driver provided “checked out.”

[14] Officer West read the breath demand from his notebook. The respondent said she understood. Officer Singh then administered the test, which came back as ‘F,’ for fail. The test was administered at 3:33 am which was also the time the reading was made.

[15] A failure on the ASD requires a reading of over 100 milligrams of alcohol.

[16] The driver was arrested, advised of the reason, and placed in the back of the cruiser. The respondent was cautioned. The caution was read from the officer’s memo book at 3:36 a.m. The respondent said she understood. The respondent declined to say anything further. She was then given her rights to counsel at 3:38 a.m.

[17] The second breath demand was made at 3:39 a.m. At 3:39 a.m. the officer started to transport the respondent to the police detachment.

[18] At 3:44 a.m. the officer arrived at the station. The respondent was paraded, booked given her rights again, searched and housed in cell #4 at York Regional Police, 5 District station.

[19] Duty counsel was called and called back at 4:20 am. The respondent was placed in a room where she could speak to counsel. Their phone call was at 4:28 a.m. At 4:43 a.m. the respondent was handed over to the breath technician at the station.

[20] At 5:12 am the technician turned custody of the respondent back over to officer West, who placed her back in cell #4. Officer West was advised by the breath technician of the readings. Officer West was given the certificate of a qualified breath technician. A true copy of that document was given to the respondent.

Cross Examination of Officer West

[21] Given the strong odour of alcohol the officer said it was fair that there may have been a very recent consumption of alcohol. The officer recalled that the respondent had said that she had been at a friend’s place. The officer indicated that from the first time he observed the respondent until he pulled her over, about 2 minutes elapsed, “give or take”.

[22] The officer never asked the respondent when she had had her last drink.

[23] When suggested by Mr. Lindsay that the officer had never considered the issue of fresh mouth alcohol prior to the screening test being used, the officer testified that, “I didn’t see it as an issue.”

[24] The officer said that there was a ten minute rule before the device was to be used. He never asked the respondent if she had had a drink in the prior 10 minutes. The officer agreed that based on training, asking when the last drink was had was part of that training.

[25] However when asked if he failed to follow his training in this case, the officer said, “ I believe that the - from the time of observation to the time of the test, it was over 10 minutes, so it wasn’t an issue, in this case.”

[26] The officer was aware that fresh mouth alcohol can cause a fail reading on a screening device even if one is not truly above the legal limit.

[27] It was put to the officer that that is why in every case an officer is supposed to ask about the timing of last drink. The officer answered, “yeah, true”.

[28] The officer’s belief with respect to a ‘10 minute rule’ was based on his training. When the officer was asked if in fact the time to wait was 15 minutes, the Court directed the officer to step out of Court for a discussion with counsel.

[29] At that juncture the court advised Mr. Lindsay that if he was saying that it was a well- known statement of the law that in each case an officer was obliged to ask about recency of last drink, and if that was so, the trial judge stated, “I am not sure that that is the law at all.”

[30] Mr. Lindsay indicated that the law was indeed 15 minutes from last drink where fresh mouth alcohol is concerned. The court advised that it agreed with him on that point.

[31] Mr. Lindsay conceded however that it is not in every case that an officer has to ask about time of one’s last drink. The trial judge stated “Ok, I mean, I thought there had to be some factors to bring it to the attention of the officer. There has to be some factors, other than nothing.”

[32] Mr. Lindsay indicated that he wanted to know what the officer’s training revealed.

[33] The officer was recalled. He agreed that his training could have suggested a wait time of 15 minutes before a screening device was utilized, but he did not recall that. The officer was presented with a manual entitled Alcotest 7410 GLC Training Aid.

[34] The officer agreed that in that manual it states, under the heading, Conducting a Subject Test, “Question the subject, as to whether alcohol, or an alcohol containing substance such as, mouthwash, has been introduced into the mouth with the last 15 minutes. If the answer is yes, then wait 15 minutes before continuing to ensure that the possibility of mouth alcohol is eliminated.”

[35] The officer agreed that his training may have suggested a 15 minute rule. The officer indicated that he did not ask the respondent where she had her last drink, and the test did not occur until over 15 minutes in any event.

[36] To quote the officer, “from the time I stopped the vehicle to the time of the test was less than 15 minutes, but the time from observation to – to time of the test was over 15 minutes.”

[37] The officer agreed that he did not have an exact notation as to when his observations of the respondent’s vehicle were first made. He agreed that he had noted 3:22 a.m as the “traffic stop.” He said that he marked his time of leaving the station as 3:14 a.m, when he first observed the respondent vehicle. He agreed observations could have been between 3:15-3:20 a.m.

[38] The officer agreed that if the time was 3:20 a.m. the test was done in less than 15 minutes. He agreed that knowing that the manual for an Alcotest device suggests a 15 minute wait it would have been better to ask about time of last drink.

Re-Examination

[39] The officer indicated that he had no reason to believe that the respondent had anything to drink within the past 15 minutes, prior to his contact with her, “because the vehicle actually passed me north on Carlton, came north of Carlton and passed southbound.”

[40] The officer said he didn’t believe he had any reason to believe that the respondent had a drink in the 15 minutes prior to the officer seeing her.

[41] There was no visible alcohol in the car, either opened or unopened.

Concession by Crown

[42] The Crown conceded that the arresting officer told the breath technician at the station that the respondent had said she had a “couple of drinks”.

Reasons of the Trial Judge

[43] The trial judge overviewed the evidence of officer West. He found the officer “overall to be a credible witness” and “accept[ed] his recitation of events and the timelines in which events occurred.”

[44] The trial judge rejected the other arguments raised by the defence, inclusive of whether the test was conducted as soon as is practicable.

[45] The trial judge stated “that while I am not sure objectively, a strong smell of alcohol would necessarily require an inquiry, it is clear that this officer felt that on that information, an inquiry would have been necessary, if the time of this observation of her was over 10 minutes. He was incorrect in believing that 10 minutes was adequate. The test was taken between 13 and 18 minutes of his observations of her.”

[46] Relying on Justice Pugsley in R. v. Froude, the trial judge found that the officer did not put his mind to the time to adequately ensure that the test was accurate.

[47] Applying Justice Durno’s test in R. v. Mastromartino, the trial judge went on to find that:

It was implicit in his [the officer’s] evidence that there should be a delay, but he was incorrect in the amount of the delay. If he therefore could not reasonably rely on the accuracy of the test result, the results cannot assist in whether there are reasonable and probable grounds to arrest.

[48] Applying this reasoning to the facts of the case the learned judge found a section 8 breach, “because the officer was in error in thinking that he no longer had to consider the possible effects of mouth alcohol because of a 10 minute wait. The test in this matter could have occurred within 15 minutes and definitely occurred within 20 minutes of the officer’s observations of the defendant.”

[49] In considering the respondent’s section 24(2) argument, the learned justice held that the officer did not intentionally usurp constitutional rights, but that the breach went

…beyond a mere technical error in some act of processing a suspect. Like the right to counsel, it is quite a fundamental right which in its breach even though an error, leads to a significant finding of breach.

[50] The trial judge then noted the importance of the evidence to the case for the Crown, and the reliability of the test, and the seriousness of the offence, inclusive of the societal interest in having alcohol and driving cases adjudicated on their merits.

[51] The trial judge held:

Based on the charter breach that I have found in this case, and weighing the factors as noted above, I am persuaded that admitting the breach sample evidence in this case would bring the administration of justice into disrepute.

[52] As a consequence with the breath test evidence being excluded, the respondent was acquitted.

Decision

Did the trial judge err in finding that P.C. West believed that there was a need to delay of the administration of the ASD?

[53] The only issue for the trial judge given his determination on the other issues was “fresh mouth alcohol.”

[54] I find that the reasoning of the learned judge is flawed based on his misapprehension of the evidence and the application of his findings to the law. I appreciate that deference is owing to questions of mixed fact and law. However I conclude that the ‘facts’ as found by the trial judge are not reasonably supportable by the evidence. I find that the trial judge fell into palpable and overriding error.

[55] The conclusion that officer West believed that there was a need to delay the administration of the test, on the evidence, is not reasonably supported. The officer indicated that he did not see a ‘mouth alcohol issue’, that the time for the taking of the ASD test was more than 15 minutes, and that he had no reason to believe that the respondent had consumed an alcoholic beverage within the 15 minute time period in any event.

[56] The officer did agree that if he was to do it all over again he would ask about fresh mouth alcohol based on the questions posed to him by defence counsel, inclusive of the suggestion that 15 minutes was the gap in time required to administer the test, and inclusive of the intoxilyzer manual which suggests 15 minutes.

[57] However that manual makes the suggestion of a wait of 15 minutes only if there is reason to believe that there is fresh mouth alcohol. To repeat the officer did not see ‘fresh mouth alcohol’ as an issue. The evidence does not dispel that fact.

[58] In addition the officer testified that the respondent had “blood shot and glassy eyes,” which I note are common indicia of persons who have consumed alcohol. The officer accepted that indicia as an indicator of someone who had been drinking.

[59] That indicia was not tempered by any evidence that there was another possible reason for bloodshot and glassy eyes. Nor was there an evidentiary basis to suggest that such indicia of alcohol use is so readily apparent within 15 minutes of fresh mouth alcohol intake.

[60] It bears repeating that the trial judge found the officer credible in his testimony. There was no finding by the trial judge of the officer not being credible in any part of his testimony, a finding which was the trial judge’s to make.

[61] The trial judge also did not aver expressly to the fact that the officer was never told that the respondent had been drinking at the friend’s home, but rather was only advised by the respondent that she had been at a friend’s place, at a time and locale completely uncanvassed in the evidence.

[62] Absent a finding of incredulity in the officer’s evidence it was not open to the trial judge to make the finding that he did in relation to a section 8 breach.

Did the Trial Judge err in the Application of the correct legal test governing ASD reliance

[63] There was no credible evidence that the ASD reading was unreliable. It is not enough to say that ‘mouth alcohol’ could exist, nor is there any positive legal duty on a police officer to make inquiry about time of last drink.

[64] The officer in this case clearly had an honest and credible belief on a subjective basis for his actions. That basis was likewise manifestly objectively reasonable.

[65] Given that the officer had no reason at the time to believe fresh mouth alcohol was reasonably in issue, he was not obliged to go to the next step and make the actual inquiry of the respondent.

[66] The trial judge failed to appreciate this issue.

[67] The law requires that the ASD be administered forthwith. On the evidence, accepted as credible by the trial judge, compliance with administration forthwith all the more makes the officer decision to proceed in that fashion reasonable and necessary.

[68] As Doherty J.A. said, speaking for the Court in Einarson[1]:

Section 254(2) of the Criminal Code requires that the test authorized by that section be administered forthwith. An officer making a demand may briefly delay the administration of the test if, in his or her opinion, there is credible evidence which causes the officer to doubt the accuracy of the test result unless the administration of the test is briefly delayed. The officer in this case did not doubt the accuracy of the test he performed. On the information available to him, he could form no opinion as to when the respondent had last consumed alcohol. In my view that assessment was a reasonable one and based on that assessment the officer was entitled to administer the test without delay. (emphasis added by me)

[69] I find that the reasoning in Einarson is directly applicable to the case at bar. In Einarson, the court, referencing Sopinka J. in Bernshaw[2], further noted that:

In the present case there is absolutely no evidence with respect to the timing of the respondent’s last drink. That is, it is unknown whether any alcohol was consumed with a period of 15 minutes prior to the screening test. The police officer made no inquiry concerning how long it was prior to administering the screening test that the respondent had last consumed alcohol. Without Constable Mashford having this knowledge, it is too speculative to assert that the screening device result was unreliable. Where the particular screening device has been approved under the statutory scheme, the officer is entitled to rely on its accuracy unless there is credible evidence to the contrary.

[70] In the absence of credible evidence that officer West should have doubted the accuracy of the ASD test, namely by infection of fresh mouth alcohol, and having focused solely on the period of time that the officer believed it would take for fresh mouth alcohol to be eliminated as a contaminator of the ASD accuracy, the trial judge erred in finding a section 8 breach where the trial record militated against any realistic evidentiary basis to suggest that fresh mouth alcohol was a factor.

[71] The trial judge’s analysis sits on a footing of speculation as to possibility of fresh mouth alcohol having been possibly present, absent an evidentiary record that it was, or absent any objective evidence to suggest that this officer should have turned his mind to the issue, and given the officer’s express opinion that it was not an issue, makes the finding that fresh mouth alcohol was an issue completely untenable.

[72] Taken to its logical extreme, the trial judge’s reasons would either make it mandatory for an officer to ask about timing of last alcoholic drink, or even a substance such as mouthwash being placed in the mouth, and/or mandatorily wait the passage of time of 15 minutes without any basis to believe fresh mouth alcohol was in issue, and risk not administering the ASD forthwith.

[73] On the evidence P.C. West’s belief in the reliability of the test at the time it was taken, was honestly and reasonably held. The mere passage of time in the taking of the test whether it be shy of 15 minutes, is not, and should not have been the issue that the trial judge latched onto. The record reveals that the trial judge appears to have moved directly to his finding that reliance on the ASD by the officer was unreasonable, divorced from the need to address the ‘fresh mouth alcohol’ consideration.

[74] In Froude, a case relied upon by the respondent, and adopted by the trial judge in his reasons, there was evidence that the officer believed that mouth alcohol was an issue. In the case at bar no such evidence exists.

[75] Nor was there a need for the officer, as the trial judge put it, “to adequately address” the issue, in the forum of a complete absence of evidence that the officer believed, or objectively should have believed, that the ASD test would not be reliable because of the presence of fresh mouth alcohol.

[76] Such a conclusion is contra to Bernshaw.

[77] The trial judge’s finding of a section 8 breach cannot stand.

Section 24(2)

[78] Given my determination on the palpable and overriding errors in the trial judge’s reasons, which led him to find a section 8 breach when none was made out, it is strictly not necessary for me to consider section 24(2). However for the completeness of the record I will.

[79] The completeness of the trial judge’s reasons on the section 24(2) breach are as follows:

SECTION 24 ANALYSIS

I have found that the defendant section 8 rights were breach because the officer was in error in thinking that he no longer had to consider the possible effect of ‘fresh mouth alcohol’ because of a 10 minute wait. The test in this matter could have occurred within 15 minutes and definitely occurred with 20 minutes of the officers’ observations of the defendant.

The officer made other errors in this case, but I did not find that they amounted to breaches of his Charter right. I can consider these matters in the context of the larger section 24 issue. This breach speaks to a lack of training and experience for this officer. It is not an intentional attempt to usurp the constitutional rights of the defendant. However I feel that the information of the reasonable and probable grounds for the arrest of a person and making a breath demand, go beyond a mere technical error in some act of the processing of a suspect. Like the right to counsel, it is quite fundamental right which in its breach even through error, leads to a significant breach.

I note in MacMillan, the court restated the applicable concerns dealing with the charter protected interests of the accused. It restates the comments in Grant that breath samples fall at the relatively non-intrusive end of that spectrum. The court state at paragraph 79: “…. Properly understood, the impact of the s. 8 violation was minimal.”

In assessing the third factor I must assess the importance of the evidence to the Crown’s case, the reliability of the evidence and the seriousness of the offence. There is always a strong societal interest in having alcohol and driving cases adjudicated by the courts. Breath test evidence is inherently reliable and of course, the breath test results are essential to the Crown’s case.

CONCLUSION ON CHARTER ISSUES

Based on the charter breach that I have found in this case, and weighing the factors as noted above, I am persuaded that admitting the breath sample evidence in this case would bring the administration of justice into disrepute.

CONCLUSION

Having found that the results of the breath test cannot be admitted into evidence, I find the defendant not guilty.

[80] The trial judge, although finding that two of the Grant factors favoured admission of the evidence, namely that the breach was minimal and the societal interest was strong in admitting the evidence, nonetheless excluded the test results.

[81] The trial judge failed to provide reasons on why the other factor in Grant militated against admission of the evidence. That factor, namely the impact of the breach on the Charter protected interests of the accused, must therefore have been the portal for which the trial judge rendered the evidence inadmissible under section 24(2).

[82] Given the reasons of the trial judge on the section 24(2) analysis it is impossible within those reasons to find why the trial judge found that the evidence should be excluded. I find that reference to the complete record of the case, and the findings that the trial judge did make, manifestly should have led to inclusion of the evidence.

[83] In coming to this conclusion, this court is well aware that substantial deference is due to a section 24(2) ruling. This court is not to substitute its view for that of the trial judge just because this court takes a different view of inclusion vs. exclusion.

[84] I find that no deference is owed to the section 24(2) decision as it is premised on misapprehensions of the evidence and the failure to apply the law correctly given those misapprehensions.

[85] It also bears note that the trial judge’s comment that, “the officer made other errors in this case, but I did not find that they amounted to breaches of his Charter right. I can consider these matters in the context of the larger section 24 issue,” is not legally sound.

[86] Those other errors, which lead to no breaches, and for which the record does not suggest were errors, was not a factor to be considered.

[87] Exclusion could only have hinged upon the trial judge’s conclusion that:

I feel that the formation of the reasonable and probable grounds for the arrest of a person and making a breath sample, go beyond mere technical error in some act of the processing of a suspect. Like the right to counsel, it is quite fundamental right which in its breach even through error, leads to a significant breach.

[88] Yet this conclusion runs contrary to the trial judge’s express finding that the breach was relatively non-intrusive, something which is completely different when a violation of the right to counsel is in issue. In the latter scenario, refuge for admission of evidence under section 24(2) is very narrowly proscribed. In the context of breath sample cases, particularly roadside tests, where a breach is established without bad faith and/or constitutional rough-shodding by the police, resort to section 24(2) is a frequent exercise that leads to admissibility in ASD cases.

[89] As a consequence, even had I found that the finding of a section 8 breach was otherwise sustainable, the inevitable result would have been that the evidence would been admissible as the administration of justice would clearly not be brought into disrepute.

Conclusion

[90] The Crown appeal is allowed. The acquittal is set aside, a verdict of guilty is substituted, and the matter is remitted to the trial judge for imposition of a fit sentence.

H. K. O’CONNELL J.

Released: September 12, 2014

[1] 2004 ONCA 19570, 70 O.R. (3d) 286 (Ont. C.A.)

[2] (1995), 1995 SCC 150, 95 C.C.C. (3d) 193 (S.C.C.)