ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 148/13
DATE: 20140929
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JENNIE MCCANN
Kim Walker, for the Crown, Appellant
Saman Wickramasinghe, for Jennie McCann, Respondent
HEARD: Sept. 19, 2014
r.f. goldstein j.
REASONS FOR JUDGMENT
[1] In the early morning hours of May 24 2012 the Respondent, Ms. McCann, was driving a Nissan Maxima in the City of Toronto. Constable Baksh of the Toronto Police observed that she was driving in an erratic manner. He pulled Ms. McCann over. He went to the driver’s side window to speak to Ms. McCann. He smelled alcohol coming from within the vehicle. He testified that he asked her to step out of the vehicle. She did so. He asked Ms. McCann to blow a puff of air into his face. She did so. Constable Baksh suspected that Ms. McCann had alcohol in her body and demanded that she blow into an approved roadside screening device. She refused to do so. She was then arrested and charged with refusing to provide a sample of her breath contrary to s. 254(2) of the Criminal Code.
[2] Ms. McCann was tried before His Honour Justice Wolski of the Ontario Court of Justice. Constable Baksh testified for the Crown. Ms. McCann testified on her own behalf. She testified that she refused to blow into the device because she thought she had the right to refuse. She also felt that since she had not been drinking she did not need to blow into the device.
[3] The trial judge’s reasons for acquitting Ms. McCann were very brief. I reproduce the key parts:
THE COURT: There was odour of alcohol coming from the vehicle. He [the police officer] asked Ms. McCann to step from the vehicle. He engaged her in a bit of conversation and asked her to provide a puff of air into his face from which he says he has detected a slight smell of an alcoholic beverage. Ms. McCann’s evidence is, candidly, that she refused to provide a sample foolishly because someone told her she has a right to refuse to provide a sample, which by the way Ms. McCann, is totally wrong.
JENNIE MCCANN: Mm-hmm.
THE COURT: But, her evidence essentially is that she was driving people, who had been drinking, home from a friend’s party. That party began probably at 9:00 pm the night before and that she had consumed no alcoholic beverages whatsoever. There was no alcohol on her system.
I am left in a state of reasonable doubt. It is not a question of whether I believe the officer or not. But the officer’s evidence is only as good as his glands are for smelling something at that hour in the morning outside a vehicle after he smelled odour of alcohol inside the vehicle. I am left in a state of reasonable doubt. Get out of here Ms. McCann.
JENNIE MCCANN: Thank you.
THE COURT: As to whether there was any alcohol from which the officer could form…
JENNIE MCCANN: Okay.
THE COURT: … a reasonable suspicion.
[4] The Crown argues that the trial judge conflated the test for whether it was objectively reasonable for the officer to suspect that Ms. McCann had alcohol in her system with proof beyond a reasonable doubt that the officer had alcohol in her system.
[5] The elements of the offence of failing to provide a breath sample contrary are set out in s. 254(2) of the Criminal Code. The Crown must prove each of the following essential elements beyond a reasonable doubt:
• The accused had, within the previous three hours, operated a motor vehicle;
• The accused refused to comply with a demand by a police officer for a sample of breath without lawful excuse; and,
• The police officer making the demand had a reasonable suspicion that the accused had alcohol in his or her body.
See: R. v. Swietorzecki (1995), 1995 444 (ON CA), 97 C.C.C. (3d) 285 (Ont.C.A.); R. v. Ademaj, [2001] O.J. No. 3767, 20 M.V.R. (4th) 110, 2001 CarswellOnt 3334 (Sup.Ct.).
[6] There was no doubt in this case that the first and second elements were proven beyond a reasonable doubt. Ms. McCann admitted to them in her own testimony. The question was, therefore, whether Constable Baksh had a reasonable suspicion that Ms. McCann had alcohol in her body.
[7] There must be an objective basis for the officer’s subjective suspicion that the accused had alcohol in her body: R. v. Singh, [2006] O.J. No. 5133, 44 M.V.R. (5th) 285 (Sup.Ct.). The smell of alcohol on the accused’s breath is enough to form reasonable suspicion. The officer need not believe that a crime has occurred: R. v. Lindsay, 1999 4301 (ON CA), [1999] O.J. No. 870, 134 C.C.C. (3d) 159, 40 M.V.R. (5th) 225 (C.A.).
[8] It appears that the trial judge was left in a state of reasonable doubt because he believed that Ms. McCann had no alcohol in her system. With great respect, that was an error. The reasonableness of the officer’s suspicion is to be evaluated at the time of the incident, not in light of evidence that arose at trial: R. v. Grothheim, 2001 SKCA 116, [2001] S.J. No. 694, 161 C.C.C. (3d) 49 (C.A.).
[9] Mr. Wickramasinghe argues that the reasons must be read in the context of the discussions that the trial judge had with Crown counsel during submissions. His Honour said:
Obviously, the issue will be whether or not the defence of, “I did not have any alcohol in my system whatsoever” raises a reasonable doubt with the officer’s evidence that he smelled a slight odour of alcohol on her breath…
I am only dealing with whether or not he had a reasonable suspicion because she denies that there was any alcohol in her body from 9:00 p.m. until he smelled it at 0140 hours.
[10] The problem with that argument is that it takes into account evidence that was available to the trial judge, but not the officer at the time he made the breath demand. The officer indicated that he smelled alcohol on Ms. McCann’s breath, which was the reason for the demand. That was enough to provide an objective basis for the reasonableness of the officer’s suspicions.
[11] The trial judge obviously accepted the officer’s evidence, as he was entitled to do, when he said that “it is not a question of whether I believe the officer or not”. Since the trial judge accepted the officer’s evidence, then it was clear that reasonable suspicion, objectively supported, existed.
[12] As I read the trial judge’s reasons, even when read in context with the comments made during submissions, it seems clear that the trial judge had a reasonable doubt about whether there was alcohol in Ms. McCann’s body at the time of the demand. He applied the proper test for evaluating the credibility of the accused, but whether or not Ms. McCann had alcohol in her body was irrelevant. The presence of alcohol in her body was not an element of the offence of refusal to provide a breath sample.
[13] The Crown’s appeal is allowed and a new trial is ordered.
R.F. Goldstein J.
Released: September 29, 2014
COURT FILE NO.: 148/13
DATE: 20140929
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JENNIE MCCANN
REASONS FOR JUDGMENT
R.F. Goldstein J.