R. v. Germain, 2015 ONSC 2295
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
– and –
Matthieu Germain
Respondent
COUNSEL:
Natalie M. Boivin, for the Crown
Terry P. Waltenbury, for the Respondent
HEARD: March 26, 2015
REASONS ON APPEAL
A. Introduction
1The within appeal was argued before me at Sudbury, Ontario, on March 26, 2015. I reproduce below the appellant’s overview summary, extracted from the factum filed on the appeal. This overview sets out the nature of the proceeding before the trial judge, and the nature of the main issues argued on the appeal.
OVERVIEW
The Respondent was charged with one count of having the care or control of a motor vehicle having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to section 253(1)(b) of the Criminal Code of Canada. The Crown proceeded summarily, and the trial proceeded before Justice Glaude on March 20, 2014. In Reasons for Judgment released July 30, 2014, the learned trial Judge acquitted the Respondent of the single count of “over 80”. The learned justice found that the police officers misunderstood a basic principle of law of the right to remain silent and that the questioning of the Respondent after the breath demand led him to find that the officer did not have reasonable and probable grounds to make the breath demand. Consequently, the Judge stayed the charge.
The Appellant submits that the trial judge erred in several ways in dismissing this Count: First, the learned trial judge did not properly address whether Cst. Kidder had a subjective basis to make the breath demand and whether or not that basis was objectively reasonable. The trial judge further erred in finding that the police officer’s misunderstanding of the right to silence reflected a systemic issue in the police force. These errors were compounded by the trial judge’s failure to consider appropriate factors when he excluded evidence and imposed a stay of proceedings in this case. The Appellant submits that, but for any or all of these errors, the verdict on Count one would necessarily have been different, and that a finding of guilt should be entered.
B. The Scope of Appellate Review
(i) Reasonable and Probable Grounds
2The standard of review to be applied when deciding whether or not a police officer has sufficient grounds to make a breathalyzer demand was clarified by the Supreme Court of Canada in R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at paras. 13-21:
13The central issue on this appeal is whether the officer had reasonable and probable grounds to demand breath samples from Mr. Shepherd. Section 254(3) of the Criminal Code, R.S.C. 1985, c. C-46, requires that an officer have reasonable grounds to believe that the suspect has committed an offence under s. 253 of the Code (impaired driving or over 80) before making a breathalyzer demand. As this Court explained in R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 S.C.R. 254, at para. 51: “The requirement in s. 254(3) that reasonable and probable grounds exist is not only a statutory but a constitutional requirement as a precondition to a lawful search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms.”
14Mr. Shepherd argues that the officer lacked the requisite grounds to make a breathalyzer demand and that as such, his breath samples were obtained in violation of ss. 8 and 9 of the Charter. The courts below did not refer explicitly to s. 9 and, in our view, based on the facts of this case nothing would be added by an analysis under s. 9. Accordingly, our analysis will proceed solely under s. 8.
15As this Court explained in Collins, where evidence is obtained as a result of a warrantless search or seizure, the onus is on the Crown to show that the search or seizure was reasonable. A search will be reasonable if it is authorized by law, the law itself is reasonable, and the manner in which the search was carried out is reasonable (Collins, at p. 278). No issue is taken with the manner in which the search was carried out or the reasonableness of the breath demand provisions in the Code. Rather, the only question is whether the arresting officer complied with the statutory pre-conditions for a valid breath demand.
16As noted above, s. 254(3) of the Criminal Code requires that the officer have reasonable grounds to believe that within the preceding three hours, the accused has committed, or is committing, an offence under s. 253 of the Criminal Code. The onus is on the Crown to prove that the officer had reasonable and probable grounds to make the demand because the Crown seeks to rely on breath samples obtained as a result of a warrantless search. It would also be impractical to place the burden on the accused because evidence of the presence or absence of reasonable and probable grounds is within the “peculiar knowledge” of the Crown (R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, p. 210).
17As this Court noted in Bernshaw, there is both a subjective and an objective component to establishing reasonable and probable grounds; that is, the officer must have an honest belief that the suspect committed an offence under s. 253 of the Criminal Code, and there must be reasonable grounds for this belief (Bernshaw, at para. 48). Here, it is not disputed that the officer had a subjective belief that Mr. Shepherd was intoxicated. The courts below disagreed, however, on whether the officer's subjective belief was reasonable in the circumstances.
18In the courts below, the issue arose as to whether the standard of reasonable and probable grounds involves a question of fact or a question of law. This issue bears on the question of the appropriate standard of review of the trial judge's decision. If reasonable and probable grounds are a question of law, then the standard of review is, of course, correctness. On the other hand, if reasonable and probable grounds are a question of fact, the standard of review is that of palpable and overriding error. The issue may also be relevant in determining whether a court has jurisdiction to hear the appeal, although jurisdiction is not an issue before us.
19The summary conviction appeal judge characterized the trial judge's conclusion that the officer did not have objective grounds to make the breath demand as a “factual finding”, and thus deferred to the trial judge's finding (para. 16). The majority in the Court of Appeal concluded that the issue of reasonable and probable grounds involved a question of law. Smith J.A., in dissent, adopted an intermediate position. While she recognized that the question of whether a legal standard is met is, in a general sense, a question of law, she also held that the summary conviction appeal judge “did not err in according deference to the conclusion of the trial judge” regarding the lack of reasonable and probable grounds (para. 53).
20While there can be no doubt that the existence of reasonable and probable grounds is grounded in the factual findings of the trial judge, the issue of whether the facts as found by the trial judge amount at law to reasonable and probable grounds is a question of law. As with any issue on appeal that requires the court to review the underlying factual foundation of a case, it may understandably seem at first blush as though the issue of reasonable and probable grounds is a question of fact. However, this Court has repeatedly affirmed that the application of a legal standard to the facts of the case is a question of law: see R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 18; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 23. In our view, the summary conviction appeal judge erred in failing to distinguish between the trial judge's findings of fact and his ultimate ruling that those facts were insufficient, at law, to constitute reasonable and probable grounds. Although the trial judge's factual findings are entitled to deference, the trial judge's ultimate ruling is subject to review for correctness. [Emphasis added.]
21In his ruling, the trial judge rightly stated that the totality of the circumstances should be considered in determining whether the officer had reasonable and probable grounds to make the breath demand.
(ii) Excluding Evidence Under s. 24(2) of the Charter
3The trial judge’s decision to exclude evidence or not to exclude evidence under s. 24(2) of the Charter is a question of law: see R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265; R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613, at p. 653.
Standard of Review
4The Supreme Court of Canada has consistently endorsed appellate deference in reviewing the decisions of trial judges whether to exclude evidence under s. 24(2) of the Charter: see Kent Roach, Constitutional Remedies in Canada, 2nd ed., loose-leaf (Toronto: Canada Law Book, 2014) at ¶ 10.640.
5In R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 519, Lamer J. stated that appellate judges should defer to the trial judge’s decision “even though they might have decided the matter differently [if]…they are of the view that the decision was not reasonable”.
6In R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at paras. 42-48, the Supreme Court discussed the rationale for deference. Arbour J. stated that an appellate court should defer to the trial judge’s assessment of the factors under s. 24(2) unless the trial judge’s decision was unreasonable or based on an error in principle or misapprehension of law.
C. Analysis
(i) Reasonable and Probable Grounds
7To analyse this issue, it is important to consider the underlying evidence adduced at the trial. This evidence is summarized in paras. 12-19 of the Respondent’s Factum, which I reproduce below:
On August 22, 2013, Constables Kidder and Balloway of the Greater Sudbury Police Service were working together on a shift that ran from 4:00 p.m. on August 22, 2013, until 2:00 a.m. on August 23, 2013.
At approximately 12:20 a.m. on August 23, 2013, they noticed a vehicle (later determined to have been operated by Mr. Germain), which was followed and ultimately stopped on Shirley Street in Chelmsford in the City of Greater Sudbury, a short time later.
Cst. Kidder made an approved screening device demand to Mr. Germain, on the basis of an odour of alcohol emanating from his breath and an admission of consumption.
Mr. Germain failed and was arrested at 12:28 a.m. on August 23, 2013, for the offence of “over 80”.
At 12:34 a.m. Cst. Kidder made a breath demand to Mr. Germain (approved instrument demand).
Shortly after the approved screening test had been completed, Cst. Balloway brought several items to the cruiser which he had found in Mr. Germain’s vehicle. The items were shown to Cst. Kidder. One of those items was a partially full Brava beer bottle.
During his testimony, Cst. Kidder explained the significance of this bottle of beer as follows:
Q. … what did you believe the significance of the beer bottle was in your investigation?
A. It was additional evidence in relation to consuming alcohol while operating a motor vehicle or having care and control of a motor vehicle.
Q. Based on what Constable Balloway told you, did you believe that the bottle was accessible to the driver of the motor vehicle or not?
A. Yes, I believe it would have been accessible to the driver.
Q. Now, in your will say statement you described this bottle of beer, and I’ll read from this, “Furthermore, Constable Balloway did also show a partially full and fresh/recent container of alcohol being a 341 millilitre bottle of Brava beer with the odour of alcohol detected from the interior of the bottle leading me to believe that the contents were, in fact, alcohol which had been opened and accessible to the driver”, correct?
A. Yes.
Q. And that’s how you described that bottle of beer in your will say statement, correct?
A. Yes.
Q. And that is, in fact, your recollection and view of how you felt about the bottle of beer, correct?
A. Yes.
Q. How did you determine that this partially full bottle of beer appeared fresh and recent?
A. Based on the odour, the fact that there was no debris or any fouling around the rim, I believed that it had been opened within the past several hours, as opposed to the past several days.
Q. And that you believed that it was opened and accessible to the driver, correct?
A. Yes.
Q. Which, I take it, common sense is kicking in here and you’re thinking maybe he was drinking that while he was driving the car, is that right?
A. Yes.
Q. Is that why you asked him in the cruiser about when he drank out of that bottle of beer?
A. Yes.
Q. Did you ask Mr. Germain a question to the effect of how much he had to drink in terms of alcohol?
A. Yes.
Q. Did you ask him a question about when his last drink was?
A. Yes.
Q. Did you ask him a question about whether or not he had been drinking out of that bottle of beer that had been discovered in his vehicle.
A. Yes.
Q. I take it that you were interested in knowing whether or not he had been drinking out of that bottle of beer that was in his vehicle otherwise you wouldn't have asked him that correct?
A. Yes.
Q. You were interested in knowing that because you wanted to determine whether or not he had mouth alcohol that could have affected the accuracy of the approved screening device test, correct?
A. Yes.
Q. And the way you got an answer to satisfy you about that was questioning Mr. Germain before he had an opportunity to speak to counsel, correct?
A. Yes.
Q. Okay, and if not for that questioning and the answering of Mr. Germain you would have still had a concern, in your own mind, as to whether or not there had been mouth alcohol that had affected the reliability of the approved screening device test, correct?
A. No.
Q. No? Then why did you bother to ask him the question?
A. Just to confirm because, as advised in my earlier evidence, during the time of the stop he indicated his last drink was an hour prior to the stop.
8The trial judge dealt with reasonable and probable grounds in his reasons. I reproduce a portion of the reasons from pages 14 through 16 of the transcript.
What I want to say is this, is that the accused raises the issue of whether or not the officer’s thoughts were that he was satisfied that the machine, the roadside screening device was functioning properly.
It is clear that the appellate courts have consistently refused to open that door in the sense that police officers could have relied on the fact that the accused told him way before that he had his last drink an hour before. However, all of that line of cases is irrelevant in this matter because in this case, the officer did in fact ask questions after his test had been completed, the ASD test, and in my view, those questions were exactly for the purpose of responding to the fact that after the test and a fail was registered, Officer Balloway showed up with a bottle of beer, a Brava beer which was, in their opinion, fresh. Now, when asked what fresh meant, it meant it could have been as old as two months, but as well, it could have been as fresh as fresh. In fact, if we look at what the accused indicated, he did admit that he did consume alcohol from that beer.
So, while I have looked at all of the decisions, including the decisions from Justice Durno, who seems to be leading the discussion with respect to this issue, I find that those cases, again, are clearly distinguishable because in my mind, this officer was trying to better his case and after he found out that the beer bottle was there, he proceeded to ask the exact questions that he should not have. That gives rise to whether or not the defence has satisfied me on a balance of probabilities that by proceeding after asking those questions, whether or not he reasonably and objectively and subjectively believed that the ASD sample was correct. I find that the inescapable conclusion is that he asked those questions, that he had some doubt as to whether or not the readings were complete and accurate. While he does say I had all the items in my mind and this was just to better the case, I find that given this officer’s, and to a lesser extent Officer Balloway’s, complete lack of knowledge with respect to a fundamental premise of society and that being that the accused is presumed innocent until proven guilty, that he has a right to remain silent, and that he has a right to instruct counsel without delay, and that he has a right not to be asked questions until he gets to speak to a lawyer. So, I find that on a balance of probabilities, the defence has proven to my satisfaction that the officers had some real questions about the validity of the ASD readings.
9On the appeal, Crown counsel conceded that the answers given by the accused, after he was cautioned and being transported to the police station, ought to be excluded from the evidence. At this point in the appeal hearing, the focus of submissions made by both counsel was whether, by asking questions about recent consumption from the open bottle of Brava, the officer thereby indicated that reasonable and probable grounds to continue the arrest, along with the breath sampling at the police station, were no longer justifiable in law. Counsel for the respondent, in succinct written and oral argument, stated that by asking the said questions (and thus breaching the Charter right to counsel), the officer demonstrated that he was questioning the accuracy of the roadside screening device, and that such questioning or doubts resulted in a loss of reasonable and probable grounds. A review of the trial judge’s reasons demonstrates that he generally concurred with the legal position taken at trial (and as outlined on the appeal) by the accused’s counsel.
10The Appellant’s counsel summarized her position on this issue at para. 39 of her factum:
As the law stands, even if the officer had been informed at the station that the accused drank from the beer bottle in the 15 minutes prior to the ASD sample, the officer’s grounds would not be invalidated. It is the officer’s belief at the time that is relevant. It was an error of law for the learned justice to find that the officer had no subjective belief when: 1) the officer testified that he believed in the accuracy of the roadside device at the time the demand was made and 2) the officer’s belief was reasonable, given the facts he understood at the time.
11Counsel also pointed to the officer’s later testimony under cross-examination, when he stated:
Q. And that’s because you were concerned about the possibility of mouth alcohol, from drinking that bottle of beer, possibly having affected the approved screening device text reliability, correct?
A. As advised, I was satisfied, but just to go above and beyond to ensure that there wasn’t any issues I asked again for clarification to make sure ‘cause sometimes, like I said, the answers do change before and after arrest.
12The trial judge made a finding, at page 16 of his reasons, that when the officer “asked those questions, that he had some doubt as to whether or not the readings were complete and accurate”. This finding of fact is owed deference by this appeal court. But the issue is not whether an investigating officer has ‘some’ doubts about the accuracy of an ASD test. In R. v. Mastromartino (2004), 2004 CanLII 28770 (ON SC), 70 O.R. (3d) 540 (S.C.), Durno J. stated, in part, at para. 23:
Officers making ASD demands must address their minds to whether or not they would be obtaining a reliable reading by administering the test without a brief delay.
If officers do not, or reasonably could not, rely on the accuracy of the test results, the results cannot assist in determining whether there are reasonable and probable grounds to arrest.
13In R. v. Brown, 2014 ONSC 1383, 65 M.V.R. (6th) 271, Durno J. stated, in part, at para. 41, as follows:
The mere possibility that a driver has consumed alcohol within 15 minutes does not preclude an officer from relying on the accuracy of the ASD. The determination focuses on this officer’s belief as to the accuracy of the test results.
14Finally, in R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 S.C.R. 254, Cory J. stated in part the following, at para. 51:
Where there is evidence that the police officer knew that the suspect had recently consumed alcohol and expert evidence shows that the subsequent screening test would be unreliable due to the presence of alcohol in the mouth, it cannot be decreed, as a matter of law, that both the subjective and objective tests have been satisfied.
15The cases that I have analysed above do not stand for the proposition that any doubt that an officer might hold with respect to the accuracy of an ASD test undermines, all other circumstances considered, reasonable and probable grounds to arrest, and to proceed with an Intoxilyzer demand.
16In my view, the trial judge fell into error by concluding that because the officer had some doubts as to the accuracy of the ASD test, he therefore could not have had reasonable and probable grounds to continue the arrest and to proceed with breath testing at the station.
17The trial evidence establishes that prior to administering the ASD test, the accused told the officer that he had three to four beers and that his last drink was an hour ago. While the trial judge found as a fact that the officer had some doubts about the accuracy of the ASD test, upon discovery of the semi-full Brava beer bottle, those doubts, in light of the remaining trial evidence (and excluding all answers given by the accused in breach of his rights to counsel) did not, in my view, nullify or negate the officer’s grounds for continuing his demands for an Intoxilyzer test.
18Further, a finding that the officer may have had some doubts about the accuracy of the ASD test does not automatically equate to the absence of a subjective belief that reasonable and probable grounds existed to arrest, and to continue the arrest process in order to demand breath samples at the station. The officer never stated that he did not have subjective and objective grounds to continue with the arrest and the Intoxilyzer demand.
19And I would go further and state that even if it could be found as a fact that the officer himself subjectively believed (as opposed to having some doubt) that he no longer had reasonable and probable grounds to continue with the arrest, nevertheless, objective grounds existed herein as I have outlined for the officer to continue with the Intoxilyzer breath demand.
20As held by Durno J. in Brown, at para. 18: “When assessing whether the officer had reasonable and probable grounds to make the Intoxilyzer breath demand, the trial judge here was entitled to rely on the appellant’s roadside statements.” In the within appeal, there existed (apart from the accused’s statements in the cruiser) clear objective evidence to support the officer’s ASD demand and, once the results were obtained, to support reasonable and probable grounds to continue with the arrest and the breath demand.
21In the present appeal, I conclude that the trial judge fell into error by equating a finding of some doubt as to the accuracy of ASD test results with a lack of reasonable and probable grounds to arrest, and to continue with the Intoxilyzer breath demand process.
22In short, having regard to all the existing circumstances, though the officer had some doubts about the accuracy of the ASD test results, these did not, in this case, eliminate or undo reasonable and probable grounds to continue with the arrest. Nor did the officer concede in his evidence that he subjectively believed that he did not possess reasonable and probable grounds to continue with his arrest, and with the demand for an Intoxilyzer breath test.
ii) Excluding Evidence Under s. 24(2) of the Charter
23The trial judge’s decision to stay the charge against the accused followed his analysis with respect to subjective belief in the accuracy of the ASD test results and by inference, his conclusion that reasonable and probable grounds no longer existed to support the Intoxilyzer breath demand. By staying the charge before the court, the trial judge indirectly excluded the meaning and effect of the Intoxilyzer breath results. And in staying the charge (of over 80, in effect), the trial judge in his reasons dealt with the accused’s Charter rights to remain silent, once cautioned, until he was provided a reasonable opportunity to instruct counsel without delay.
24This decision is, as I indicated earlier, subject to deference unless the trial judge’s decision was unreasonable or based on an error in principle or misapprehension of the law. In my view, the trial judge’s ruling to exclude the Intoxilyzer readings and stay the charge was inextricably linked to his conclusion, analysed above, wherein he fell into error as to whether reasonable and probable grounds existed to continue with the breath demand process.
25At paras. 43 and 44 of the appellant’s factum, counsel stated as follows:
The s. 10(b) Charter breach involves the questioning of the respondent before he had an opportunity to consult with counsel. The evidence that flowed from the breach includes the utterances of the Respondent in the cruiser, in answer to those questions. The Crown did not tender that evidence/those utterances for their truth. The argument for remedy under s. 24(1) or s. 24(2) for a s. 10(b) Charter violation is therefore moot.
The learned justice found that the act of questioning the respondent showed that the officer:
a) had a complete disregard for this person’s s. 10(b) rights (which the judge was entitled to find) but moreover that;
b) the officer did not have the subjective ground to believe an offence had been committed, given that his questions called into play the timing of drinking (which the trial judge was not entitled to infer, given that the officer testified to his subjective believe of the accuracy of the ASD and this belief was objectively reasonable at the time of the demand).
The judge then compounded the error by excluding evidence and entering a stay of proceedings, in an effort to “educate” police officers, which he was not entitled to do in law. [Emphasis in original.]
26I concur, in general, with those points. Further, at paras. 48 and 52 of the appellant’s factum, counsel stated:
- To meet the threshold requirement the respondent must establish a connection between the violation of his Charter right and the evidence adduced. The connection can be temporal, contextual, causal, or a combination of all three.
R. v. Munro [2009] O.J. No. 399 (SCJ) at para. 58.
R. v. Wittwer, supra, at para. 21.
R. v. Karst [2009] O.J. No. 4974 (SCJ) at para. 19.
R. v. Grant [2012] O.J. No. 1158 (SCJ) at para. 18.
- The trial Judge did not embark in any analysis under s. 24(1) or s. 24(2). While there may be a limited temporal connection between the s. 10(b) Charter violation in the cruiser, there is no causal or contextual connection between the utterances and the breath samples. The Respondent provided the breath samples, having fully been informed of his rights. As the Court of Appeal found in R. v. Simon:
“… the taking of the sample, provided by the Respondent when he had full knowledge of his s. 10(b) rights as they related to the providing of the sample, drives a wedge between the giving of the sample and earlier breach of s. 10(b).”
R. v. Simon, ibid. at para. 74.
27I also concur with these statements. At trial, the appellant was not tendering the statements of the accused, while in the cruiser, as part of its case. And as I have concluded, the trial judge erred in concluding that the officer did not possess reasonable and probable grounds to continue the arrest process. While it is true that the trial judge understandably held concerns with respect to both officers’ understanding of the s. 10(b) Charter right, and whether such misunderstanding flowed from systemic causes, I conclude herein that his error in finding lack of reasonable and probable grounds to continue the arrest, and the lack of any link between the s. 10(b) breach and the readings subsequently obtained, taken together, do not justify and cannot support the decision to stay charges herein. This is further so, given the ambiguity surrounding the trial judge’s reference to “… in the circumstances, to do anything but to exclude this testimony would bring the administration of justice into disrepute,” when the utterances and testimony seemingly referred to were not intended to be part of the appellant’s case. A stay of proceedings is a remedy of last resort and for the reasons herein given, I conclude that the trial judge erred both in granting a stay, and effectively, if indirectly concluding, that the Intoxilyzer readings were to be excluded from the trial evidence.
D. Conclusion
28This court has the powers on appeal set out in s. 822(1)(2) and s. 686(4) of the Criminal Code. On the arguing of the appeal before me, the issue as to time considerations relating to “as soon as practicable” was dealt with. This issue was also dealt with briefly by the trial judge, in his reasons.
29Accordingly, I conclude that for all the reasons set out herein, the following disposition is to be made on the within appeal:
The stay of proceedings relating to Count one on the information sworn August 23, 2013 (over 80 – s. 253(1)(b)) is herein set aside and this matter is reverted to the Ontario Court of Justice for trial. The decision whether to proceed with a new trial rests in the discretion of the appellant.
30Order accordingly.
The Honourable Mr. Justice J.S. O’Neill
Released: April 23, 2015