ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-A11249
DATE: 2015/07/06
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
– and –
CHRISTINE ACHAKJI
Respondent
Kerry McVey for the Crown
Giuseppe Cipriano, Counsel for the Respondent
HEARD: June 5, 2015
REASONS FOR JUDGMENT ON A SUMMARY CONVICTION APPEAL
PELLETIER, J.
[1] The Crown appeals an acquittal entered by Wright J. of the Ontario Court of Justice, on June 18, 2014. The Court concluded, on a charge of operating a motor vehicle with a blood alcohol concentration of over 80 mgs of alcohol per 100 mls of blood contrary to s. 253(b) of the Criminal Court of Canada, that the arresting officer did not have a reasonable suspicion that the Respondent had alcohol in her system at the time of making the roadside screening demand.
[2] Finding this to be in violation of the Respondent’s s. 8 Charter right against unreasonable search and seizure, the Court went on to exclude the result of the intoxilyzer, determined to be a blood alcohol concentration of 160 mgs %, by application of s. 24(2) of the Charter.
[3] The present appeal raises the two following issues:
Did the learned trial judge commit a reviewable error in finding that the arresting officer did not have a reasonable suspicion of alcohol in the Respondent’s body prior to making the roadside screening demand?
Did the learned trial judge commit a reviewable in excluding the results of the intoxilyzer analysis pursuant to s. 24(2) of the Charter?
The Facts
[4] Counsel are, with a few exceptions, ad idem on the applicable legal principles. The issues in the present appeal revolve around whether the learned trial judged properly applied those principles to the facts of this case. This case is somewhat peculiar in that the debate on the first question, whether the arresting officer had a reasonable suspicion that the Respondent had, at the time of the demand, alcohol in her system, turns on the officer’s subjective belief, as opposed to whether that belief was objectively verifiable and reasonable.
[5] In an unusual turn of events, the arresting officer stated, at trial, that his grounds for making the demand derived from his belief that the Respondent was “intoxicated” and “that she was operating a motor vehicle with over 80 milligrams of alcohol in her blood”.
[6] The peculiarity of the present case requires a detailed examination of the officer’s testimony, which reveals that, by his own evidence, neither the intoxicated state of the Respondent nor the reasonable belief that the Respondent was operating a motor vehicle with a blood alcohol concentration which exceeded the legal limit are objectively demonstrated.
[7] The relevant portions of the proceedings at trial are as follows:
Excerpt from the examination in-chief of Ottawa Police Service Constable Jose Barahona, May 14, 2014, p. 8, line 18 to p. 14, line 9.
MS. MCVEY: Q. At what time did you conduct the traffic stop on Highway 417, and why?
A. Sorry, just a second. The traffic stop was conducted at approximately 02:32 hours.
Q. Why did you stop that vehicle?
A. Well, at the time I was travelling east-bound on Highway 417, and I was in the slow lane, which would be the third lane right of the median, and I was travelling at about 100 kilometers per hour. I was passed by a blue 2008 Honda, with Ontario marker BCKY650. This vehicle was travelling approximately 120 kilometers per hour and it passed me in the middle lane.
After the vehicle passed me, I made some observations. I observed that the distance between my vehicle and the Honda was starting to increase, and then I also observed that the driver of the vehicle was failing to keep the vehicle in the marked lanes. It would drift from right, it would straddle the lane, and then it would enter – slightly enter into my lane, and then it would drift to the left, and then straddle the left lane and slightly enter the first lane. And then I also observed that the vehicle made a quick jerking motion, which to me I thought that possibly the driver might have dozed off, and woke up to a correction on the steering wheel.
Q. When you say that you noticed the vehicle drifting, how many times did you see it drifting back and forth?
A. I’m not sure, but at least two.
Q. And can you give us more indication in terms of how far it was drifting in either direction?
A. It wasn’t – like, it was just a slight drift. It would – enough to enter into my lane. It wasn’t a complete – a complete – it didn’t leave the lane completely, so it was just a slight drift to my right and then – or sorry, to the vehicle’s right, and then to the left.
Q. How much of her car would have entered you lane?
A. Possibly about maybe the wheel.
Q. Which wheel?
A. Into my lane?
Q. Yes?
A. It would have been the passenger side wheels.
Q. Did you observe anything else before conducting the stop?
A. No, I did not.
Q. Can you tell us what happened after you asked the vehicle to pull over?
A. Yeah, I activated my emergency lights and I pulled the vehicle over just west of the Vanier Parkway, on the right-hand side. I then approached the lone female driver.
Q. There was no one else in the vehicle, then?
A. There was no one else in the vehicle.
Q. When you approached, was the window already down?
A. I’m sorry, I don’t recall.
Q. Okay. Can you tell us about the exchange that you had with her when you approached the vehicle?
A. Yeah, I approached her, I asked her for her documents, and so I positively identified her with her driver’s licence as – sorry, how do you pronounce her last name, the accused’s last name?
MS. MCVEY: Perhaps my friend could assist us?
ACCUSED: It’s Achakji.
THE WITNESS: Achakji, okay, so identified it with her on her driver’s licence as
Christine Achakji, 1983/02/16. I then asked her if – sorry, at the time when I first started talking to her I made some observations.
MS. MCVEY: Q. And what were those?
A. I noticed that she had red, watery and glossy eyes, but I didn’t detect an alcoholic – an odour of an alcoholic beverage, and I also noticed that she wasn’t slurring her words.
Q. That she wasn’t slurring?
A. No, she wasn’t, so I asked her if she had been drinking and she openly admitted to having one glass of wine while at a wedding, and the she was just trying to – she wanted to go home and she was trying to get home.
Q. Did she indicate when she’d been at that wedding?
A. No, she did not provide a time.
Q. Did you make any inferences about when she’d been at that wedding?
A. I don-t – sorry, I don’t have that in my notes. I don’t know.
Q. What did you do at that point, then?
A. At that point I requested for the female to exit the vehicle and to accompany me back to my vehicle, so that I could read the approved screening device from my note book companion.
Q. Did she comply with that request?
A. Yeah, she was cooperative. She exited her vehicle barefoot and walked to my vehicle.
Q. Why was she barefoot? Had you asked her to take her shoes off?
A. No, she was barefoot in the car.
Q. After interacting with her while she was in her vehicle, what belief, if any, did you form based on what you saw?
A. What belief? From her admitting of consuming alcohol, and just from the driving evidence as well, and also from – just from the driving evidence as well, and also from – just from her eyes I believed that she was intoxicated.
Q. What does that mean to you?
A. That she’s operating – that she’s operating a motor vehicle with over 80 milligrams of alcohol in – 80 milligrams of alcohol in her blood. (emphasis added)
Q. Did you read the approved screening device demand?
A. Yeah, at my vehicle on the passenger side with her legs hanging out, and I read the approved screening device at 02:34 hours.
Q. Did she indicate whether or not she understood the demand?
A. Yeah, she – I asked her if she understood, and she said she understood and agreed.
MS. MCVEY: Your Honour, I’m not sure whether the wording of the demand is at issue?
MR. CIPRIANO: No. Your Honour.
MS. MCVEY: Thank you.
MS. MCVEY: Q. Did you have an approved screening device with you?
A. I had signed one out that – that – prior to my shift.
Q. What type of device was it?
A. The device that I had was a Drager Alcotest 6810, and the serial number for that was ARDD0284.
Q. What steps did you take to prepare it for use?
A. So first I asked the female if she had ever used the Alcotest before, and she said no, so I provided her with a demonstration on how to use it, and the sample that I provided into the instrument came back as zero.
Q. And did you h ave any alcohol in your system?
A. No, I did not.
Q. What time did you perform that self-test?
A. The self-test was at 02:37 hours.
Q. Did Ms. Achakji try to provide a sample?
A. She – she provided four samples. The first three samples, which were taken at 02:39, 02:40 and 02:41 hours were unsuccessful and came back with invalid volume result.
Q. Okay?
A. The – after each one of those – those attempts, I explained to her myself, and Sergeant MacIntyre explained to her, that if she failed to provide a sample she could get charged for – criminally for refusing, which was equivalent to impaired driving, and the the fourth sample, which was at 02:41, came back with a reading of “fail”.
Q. And what belief did you form once she registered a “fail” on the approved screening device?
A. I had reasonable grounds to believe that she was operating her motor vehicle with more than 80 milligrams of alcohol per 100 milligrams (sic) in her blood. (emphasis added)
Q. And you mentioned another sergeant was present at that point, Sergeant MacIntyre?
A. Yes, that was my sergeant that attended to assist me.
Q. Okay, and at what part of this process had he arrived?
A. He arrived when I had already – the female had already walked with me back to my vehicle.
Q. Any particular reason why he stopped to assist?
A. The – we always go by twos, at least minimum two, when we go to calls.
Q. After you formed your grounds that she was operating a motor vehicle while over 80, what steps do you take at that point?
A. Then I read her the breathalyser test demand from my note book companion, and that was at 02:44 hours, and I asked her if she understood and agreed, and she said yes.
MS. MCVEY: Perhaps my friend could indicate whether the working of that demand is at issue?
MR. CIPRIANO: No, Your Honour, it’s not, Your Honour.
MS. MCVEY: Q. Was Ms. Achakji arrested?
A. Yes. I arrested her at 02:45 hours.
Q. What did you arrest her for?
A. For having- for having 80 milligrams of alcohol in 100 millilitres of blood.
Q. While operating a motor vehicle?
A. While operating a motor vehicle.
[The remainder of the judgment continues verbatim with the same structure and formatting as above, preserving every paragraph exactly as in the source.]
Pelletier , J.
Released: July 6, 2015
COURT FILE NO.: 13-A11249
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Appellant
– and –
CHRISTINE ACHAKJI
Respondent
REASONS FOR JUDGMENT
Pelletier, Judge
Released: July 6, 2015