ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-15-047-00AP
DATE: 2015 Jul 10
BETWEEN:
HER MAJESTY THE QUEEN
– and –
TAYLOR CURRY JOHN DIXON
Appellant
R. Andrew Scott, for the Crown
Michael J. Pretsell, for the Appellant
HEARD: June 19, 2015 at Napanee
BELCH, j.
APPEAL DECISION
[1] On January 13, 2015, Taylor Dixon was convicted by Justice G. Griffin of operating a motor vehicle on May 24, 2014, having consumed alcohol in such quantity that the concentration in his blood exceeded 80 mg of alcohol in 100 ml of blood contrary to section 253(1)(b) of the Criminal Code of Canada.
[2] At trial, there was an application pursuant to Section 24(2) of the Charter of Rights and Freedoms to have the breath readings excluded from the proceedings on the basis Mr. Dixon’s rights under Sections 8, 9, and 10(b) of the Charter were infringed.
[3] The arresting officer testified he stopped the vehicle driven by Mr. Dixon on Highway 401 shortly after 9:52 AM, likely closer to 10:01 AM. No issue was taken with respect to the vehicle stop. The officer requested Mr. Dixon to come to his cruiser and while they both occupied the front seat, the officer observed Mr. Dixon’s eyes were bloodshot, his pupils were slightly dilated, and there was an odour of alcohol on his breath. At 10:01 AM, the officer read the roadside demand to Mr. Dixon who was advised there would be a 15 minute wait because Mr. Dixon had been smoking and had cigarette smoke in his mouth. As the officer later learned, a wait of 15 minutes was not required, only two minutes, given the testing device he was using. At 10:16 AM, Mr. Dixon provided a suitable sample and that registered a fail. At 10:17 AM, the officer advised Mr. Dixon he was under arrest for driving with more than 80 mg of alcohol in 100 ml of blood and Mr. Dixon was read his rights to counsel.
[4] The officer testified at trial there was nothing about Mr. Dixon’s driving that indicated his ability to drive was impaired. His balance was not an issue; his speech was not an issue and before the breathalyzer reading, he had no grounds upon which to form an opinion his ability to drive had been impaired by alcohol.
[5] In addition, the officer admitted he made an error in judgment in believing a 15 minute wait was required. The issue was cigarette smoke which can affect the accuracy of this instrument. In his words, “…in fairness to the individual you’re asking to provide that sample, you wait a set amount of time so that you’re going to get a true reading and not one that’s affected by cigarette smoke or mouth alcohol.”
[6] The trial judge was alive to the issues:
a. Immediacy: the trial judge referred to the decision of Justice Fish in R. v. Woods wherein Justice Fish remarked, “but for its requirements of immediacy, Section 254(2) would not pass constitutional muster.”
b. As for, “a brief and unavoidable delay of 15 minutes, can this be justified when it is in accordance with the exigencies of the use of the equipment.” See Bernshaw. Justice Griffin found “the exigencies of the use of the equipment in this case did not require a 15 minute wait and as such, the delay results in the constitutional integrity of what followed being compromised. The improper use of the approved screening device flowing from an honest, but mistaken belief about cigarette smoke, results in an unreasonable search and seizure, as any demand made for Intoxilyzer testing was unlawful, there being no lawful grounds, as well as an arbitrary detention and an infringement of his right to counsel. So it is clear, Mr. Dixon has established his rights under Sections 8, 9 and 10(b) of the Charter were infringed by the officer’s improper use of the approved screening device.”
c. In dealing with the three part test from R. v. Grant, namely before excluding evidence, the court must have regard to:
i. the seriousness of the Charter infringing state conduct;
ii. the impact of the Charter protected interest on the accused; and
iii. society’s interest in the adjudication on the merits, the trial judge examining the seriousness of the breaches found, “the offending conduct in question is that of being very careful, although mistakingly careful, rather than wilful disregard or negligence. Certainly, within minutes of the fail on the approved screening device, Mr. Dixon was informed of his right to counsel. He remarks, “If a police officer is going to make use of a device to establish reasonable and probable grounds to arrest someone, then they should have a complete understanding of how that device should be used; ... Certainly, one could conclude that Officer Holland’s faulty understanding about the presence of cigarette smoke on the workings of the device is below par and that a more solid knowledge about the use of the device should be expected, the only conclusion available concerning the delay [is] Officer Holland was acting in good faith pursuant to what he thought was the proper use of the device…. I conclude that the gravity of the offending conduct by Officer Holland was not of the sort that would favour exclusion of the breath readings.”
iv. regarding the impact on Mr. Dixon’s rights, he concludes: “…I am of the view that the delay of over 15 minutes while Mr. Dixon sat in Officer Holland’s cruiser simply waiting for the passage of time because of the mistake and concern over cigarette smoke affecting the proper working of the device without the officer informing Mr. Dixon of his right to retain and instruct counsel without delay to be a serious infringement…. To deprive Mr. Dixon of the right to counsel in such circumstances is a serious thing as a free and democratic society operates on the principle that citizens are not detained at the side of the road and required to sit in police cruisers for a quarter of an hour without being told they have a right to speak to a lawyer who could explain the jeopardy they are in and how best to react to it…. I am of the view that the admission of the breath samples would send the message that Mr. Dixon’s rights account for little and, accordingly, the impact of the breaches on Mr. Dixon’s Charter protected interest militates towards excluding the breath samples.”
v. regarding society’s interest in the adjudication on the merits, the trial judge remarks “it should go without saying that society has an interest in the adjudication of any alcohol driving offence on Highway 401, which has been referred to from time to time as Canada’s Main Street. A proper consideration of society’s interests and the adjudication on the merits results in the conclusion that the breath samples obtained be included in the evidence.”
[7] The trial judge after reviewing the relevant case authorities concluded, “As such it would normally follow that failure to comply with the forthwith component of Section 254(2) should result in Mr. Dixon’s breath test being excluded. However, when a proper analysis under Section 254(2) of the Charter is undertaken, I simply am unable to ignore Officer Holland’s bona fides in approaching the approved screening device testing in the manner that he did; namely, wanting to ensure a reliable result on the Alcotest 6810. He waited for 15 minutes when he did not have to. The wait was to ensure, in his own mind, that any result obtained would be reliable and, therefore, fair to Mr. Dixon, the accused.”
[8] The trial judge in his ruling states, “it must be understood that there is no mathematical formula that determines if the admission of the evidence would bring the administration of justice into disrepute that is I simply review the three Grant factors, where I concluded 2 favour inclusion of the evidence while one favours exclusion; therefore, the evidence will be admitted.”
[9] The trial judge continued, “I considered not only the negative impact of admitting the breath results obtained, despite noncompliance with Section 254(2) of the Criminal Code, I also consider the impact of failing to admit the evidence when Officer Holland did everything right, but was wrong about the presence of cigarette smoke.
[10] After much anxious consideration concerning the matter and having considered all the circumstances, I find that the exclusion of the breath samples: 120 and 110 mg of alcohol and a 100 ml of blood, would bring the administration of justice into disrepute more than their admission.
[11] Accordingly, the application to exclude the breath samples is dismissed.”
THE APPELLANT’S POSITION
[12] Appellant’s counsel acknowledges an appellate court may not interfere with findings of fact and factual inferences drawn by the trial judge unless they are clearly wrong, unsupported by the evidence or otherwise inadmissible. “…The reviewing appellate court may be able to identify a flaw in the evaluation of the evidence, or in the analysis, that will serve to explain the unreasonable conclusion reached and justify the reversal.” See R v. Biniaris
[13] A trial judge’s conclusion may not command deference where the appellate court reaches a different conclusion on the breach itself. However, the trial judge’s underlying factual findings must be respected absent palatable and overriding error.
[14] Appellant’s counsel submits the finding that the offending conduct is mistakingly careful as opposed to negligent is clearly wrong, a misapprehension of the evidence, not supported by the evidence and not owed any deference. While counsel acknowledges conduct was not wilful, he submits the error of waiting 15 minutes for the cigarette smoke results in a test which was not administered “forthwith” nor in accordance with the Charter and therefore, was a violation of section 8. That error is compounded by not providing rights to counsel or reasons for detention, a requirement well known to police officers and which amounted to an arbitrary detention contrary to section 9. Failure to advise of the reasons for detention and offer an opportunity to consult with counsel was contrary to section 10.
[15] The trial judge found a violation of Mr. Dixon’s Section 10 rights, however, focused on what he called a non-negligent delay in waiting to get an accurate sample, a breach of section 8 rights. Absent is any analysis of section 10 rights.
[16] Counsel submits the delay is negligence. Police officers who stop and detain motorists in order to perform ASD are required to execute their duties competently and accurately. Unfamiliarity, and even admitting one’s incompetence on an important issue, does not excuse it. Counsel relies upon the decision in R. v. Au-Yeung, [2010] wherein Justice Ducharme concludes “In my view, the public should expect that when they are stopped by the police, their Charter rights will be respected. Certainly, 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. Even more importantly, the public must have confidence that those officers who are charged with exercising the important duties under s. 254 of the Criminal Code have the necessary skills and training to do so in a matter that complies with both the Criminal Code and the Charter.”
[17] Counsel submits R. v. Sergalis [2009] distinguishes between negligence and good faith. The trial judge in that case in commenting on the officer’s negligence said as follows: “it is plain that there was no justification for the detention of (the accused); any reasonable police officer, particularly one with eight years’ experience, would know that he was not clothed with authority under section 48 of the Highway Traffic Act. The apparent ignorance of an experienced police officer about the limits of his authority under the Highway Traffic Act and his clear intention to pursue an investigation of possible impaired driving in the complete absence of grounds puts into question the trial judge’s conclusion that “I have no basis in the evidence to conclude that the officer was acting in bad faith or knowing himself to be in violation of Mr. Sergalis’ right.” Appellant’s counsel points out the officer in our case had 32 years’ experience, and by analogy ignorance about the machine’s use should be found to be negligence.
[18] In the case of R. v. Deleersnyder, [2014], the summary conviction appeal court disagreed with a trial judge’s conclusion that police conduct was inadvertent and at the lower end of the spectrum of seriousness. Counsel advises this was the case with respect to rights to counsel being provided at the station and confusion between officers as to whether or not the accused has exercised those rights. The court wrote: “the totality of aforementioned conduct at least on the part of (the officers), is far more indicative as a minimum of negligence, not mere inadvertence. The trial judge’s reasons, as a whole, suggest that the police were viewed as acting in good faith, which I find to be unreasonable based on the record and the trial judge’s findings of fact. Ignorance of Charter standards must not be rewarded, or encouraged, and negligence or wilful blindness cannot be equated with good faith. R. v. Grant, supra, at paragraph 75.”
[19] In summary, counsel submits there is no question there were violations of sections 8, 9, and 10 of the Charter caused by police negligence, and ignorance of Charter jurisprudence. Police negligence and ignorance of Charter standards cannot be equated with good faith. Counsel urges the court to exclude the evidence and acquit the accused respectfully submitting the combined errors by the trial judge in analysing the evidence renders the trial result unsafe.
CROWN’S POSITION
[20] It is the Crown’s position the evidence demonstrated the officer held an overall understanding of the operational requirements of the device and respect for the Charter rights of the accused. The trial judge concluded Constable Holland had acted in good faith. There was ample evidence to make this finding based upon his evidence which included a clear understanding of the general operations of the device but the officer made a simple error with respect to the machine’s use when cigarette smoke was involved. The mistake was grounded in an effort to ensure the results provided by the appellant were reliable and to prevent an arrest from occurring based on false readings.
[21] A misapprehension of evidence includes the failure to consider evidence relevant to a material issue, a mistake regarding the substance of the evidence, or a failure to give proper effect to evidence. The ultimate issue for an appellate court is, however, whether the misapprehension has impacted upon trial fairness by raising doubt regarding the reliability of the verdict, such that a miscarriage of justice has occurred.
[22] Excluding the breath test readings would bring more long-term harm to the administration of justice than would its admission. The purpose of section 24(2) is to maintain the good repute of the administration of justice. The inquiry is an objective one, which asks whether a reasonable person, informed of all of the circumstances and Charter values, would conclude the admission of the evidence would bring the administration of justice into disrepute.
[23] Where a trial judge has considered all the proper factors, has not made any unreasonable findings, his or her section 24(2) determination should be afforded great deference by an appellate court. It is not open to the reviewing court to substitute its own view of the police misconduct for that of the trial judge.
[24] In assessing the seriousness of the Charter-infringing state conduct, the more severe or deliberate the Charter breach, the more need there is for the court to disassociate itself from the police conduct. However, this is not a case where the police wilfully and flagrantly breached their Charter obligations and the court need not disassociate itself from the good faith efforts of the police.
[25] In R. v. Ho, failure by the police to perform a self-test with the roadside device prior to using it was found to be nothing more than a simple error of judgment and evidence of the breath test was admitted. In R. v. Huang, failure by the investigating officer to check the calibration of the machine prior to use was again found as minor and inadvertent; conduct which would not risk bringing the administration of justice into disrepute. In R. v. Ramsammy, an officer’s lack of knowledge with respect to error codes that came up on the device was found to be no breach at all, but even if a breach the judge suggested the evidence would have been admitted in any event as it showed the officer was acting in good faith. It is the Crown’s position these cases demonstrate when officers, who in good faith, make minor mistakes with respect to the use of the device the evidence should still be admitted.
[26] Regarding R. v. Au-Yeung, the Crown submits in that case, the investigating officer had an incredibly poor understanding of the device used, which is not the case here, therefore, the court should not rely upon this case cited by the defence.
[27] Addressing the defence argument that the trial judge failed to address section 10 breaches in his analysis the Crown submits the section 10 breach was inextricably linked to the section 8 and nine breaches which all flowed from the officer’s erroneously held belief he had to wait 15 minutes due to the presence of cigarette smoke. Had the officer been correct regarding the 15 minute delay, there would have been no breaches of any kind. All the trial judge had to analyse at this stage was the state conduct that led to the breaches of sections 8, 9, and 10 which was all the same conduct, namely, the delay in administering the roadside test. The trial judge thoroughly and correctly considered this as evidenced by his comment…” when I consider the seriousness of the breaches, which really overlap one another due to the delay in taking the approved screening device…”
[28] Crown counsel submits the Supreme Court in Grant specifically indicated breath samples are minimally intrusive and fall on the lower end of the scale with respect to the impact on the accused’s privacy, bodily integrity, and dignity. Thus breath samples in drinking and driving cases will often be admitted as the violation is less egregious due to their reliability and minimal intrusiveness.
[29] Regarding society’s interest in adjudication on the merits, if the evidence is reliable and relevant, excluding it may undermine the truth seeking function of the justice system and cause a reasonable member of the public to lose confidence in the system. Breath samples, in the absence of evidence to the contrary, are inherently reliable, and support the inclusion of the evidence at trial.
[30] The Crown requests the appeal against conviction be dismissed.
ANALYSIS AND CONCLUSION
[31] The trial judge carefully reviewed the evidence and case authorities before deciding to admit the breath test samples. He noted in Grant, there was no mathematical formula. Regarding the seriousness of the Charter infringement, while finding the officer was mistaken with respect to the operation of the device, he described the offending conduct as being very careful, although mistakingly careful, rather than wilful disregard or negligence. He concludes the issue of infringement in favour of the Crown. On the matter of the impact of the Charter protected interests of the accused, he finds waiting 15 minutes in error is a serious infringement. This factor is found in favour of the accused. Addressing society’s interests, he finds Society has an interest in the education of alcohol related offences on 401. In the end, while finding the final balancing act is very close, he admits the breath test samples into evidence.
[32] The trial judge decides for the Crown on the best two out of three. There is no certainty expressed in the case authorities the court has been referred to on whether all three factors rank equally. For example, does the impact of the Charter protected interest of the accused prevail? If that were the case, one might question why the court in Grant bothered to mention the seriousness of Charter infringement or society’s interest in the adjudication on the merits.
[33] Negligence involves a duty of care. A police officer has a duty to understand the workings of a roadside ‘alert’ device. This officer’s knowledge of how this device functioned was incomplete. This fact triggered the 15 minute delay in administering a test which is supposed to happen ‘forthwith,’ and set in motion the delay in advising Mr. Dixon of his legal rights. Does unnecessarily waiting 15 minutes equate with such circumstances as failure to perform a self- test, failure to check the calibration of the machine prior to use, and lack of knowledge with respect to error codes all of which have previously been found by a court to be good faith mistakes? Or is the unnecessary wait of 15 minutes more in keeping with lacking the necessary skills and training, exhibiting ignorance about the limits of authority, and confusion at the police station as to whether an accused had exercised rights to counsel all of which have been found to be negligence and not good faith mistakes?
[34] The trial judge found it was a good faith mistake and not negligence. There is ample evidence in his reasons for judgment that the trial judge was alive to and considered all of the issues in play. On appeal, this Court is not to substitute its decision for that of the trial judge unless the trial judge is clearly wrong. I am unable to conclude the trial judge is clearly wrong.
[35] The failure to inform Mr. Dixon in a timely fashion of his right to speak with and retain counsel, perhaps the most obvious issue, was properly found by the trial judge to be an infringement of Mr. Dixon’s Charter rights and as previously mentioned, the trial judge found this aspect of the three part test in R. v. Grant in Mr. Dixon’s favour, but decided the other two aspects of the three part test favoured admission into evidence of the breath test reports.
[36] In reviewing a trial decision, the test to be applied is whether the verdict is one a properly instructed jury acting judicially could reasonably have rendered. I am satisfied that a properly instructed jury could have reached the same conclusion as the trial judge and accordingly, the appeal against conviction is dismissed.
Honourable Mr. Justice Douglas Belch
Released: July 10, 2015
CASES CITED
R. v. Woods, 197 C.C.C. (3d)
R. v. Grant, 245 C.C.C. (3d)
R. v. Biniaris, [2000] 143 CCC 3d SCC
R. v. George, [2004] O.J. No. 3287
R. v. Au-Yeung, 2010 ONSC 2292, [2010] O.J. No. 1579 SCJ
R. v. Sergalis [2009] O.J. No. 4823 SCJ
R. v. Deleersnyder [2014] O.J. No. 431
R. v. Ho, [2014] O.J. No. 4019 (S.C.J.)
R. v. Huang, 2014 ONSC 4785, [2014] O.J. No. 3820 (S.C.J.)
R. v. Ramsammy, [2013] O.J. No. 46 (S.C.J.)
COURT FILE NO.: CR-15-047-00AP
DATE: 2015 Jul 10
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
TAYLOR CURRY JOHN DIXON
Appellant
appeal decision
Belch, J.
Released: July 10, 2015