ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-A13633
DATE: 2015-07-16
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
CAROLYN BORER
Defendant/Appellant
Julien Lalande, for the Crown
Michael Johnston and Mathew Day, for the Defendant/Appellant
HEARD: July 15, 2015
On appeal from the Decision of the Honourable David Paciocco of the Ontario Court of Justice, dated January 13, 2014.
Ray, j.
Introduction
[1] The defendant appeals her conviction of “over 80” contrary to s. 253(1)(b) CCC, by Paciocco, J, dated January 13, 2014 on the ground that:
a. the learned trial judge erred in law by failing to address whether the detaining officer had the requisite objective grounds to justify his detention of the (defendant) at the roadside;
b. the learned trial judge erred in law by failing to find a breach of s. 9 of the Charter of Rights and Freedoms; and
c. That the learned trial judge erred in law by admitting the evidence which emanated from the (defendant’s) illegal detention;
[2] The defendant served a motion July 14, 2015 for leave to serve and file a supplementary Notice of Appeal and to extend the defendant’s factum beyond the prescribed length permitted by the Rules, on the ground that during preparation for the hearing of this appeal counsel discovered an additional ground of appeal. She seeks to file a supplementary factum. The additional ground of appeal is:
The learned trial judge erred in law by misapprehending the evidence about whether Constable Burnie advised the Appellant of the reasons for her detention, as guaranteed by subsection 10(a) of the Charter of Rights and Freedoms, at the time that he detained her for the alleged “unsafe right turn.”
[3] The Crown consents to the supplementary Notice of Appeal, and to the additional factum addressing the additional ground of appeal.
Standard of Review
[4] The standard of review requires that an appellate court should not interfere merely because it would have reached a different result and should only interfere if the trial judge made a finding that is unsupported by the evidence or that is unreasonable and would have affected the result.[^1] The application of a legal standard to the facts of a case is a question of law and is subject to review for correctness.[^2] The weighing and examination of the evidence is only for the purpose of determining if it is reasonably capable of supporting the trial judge’s conclusion.[^3] The standard of review on a summary conviction appeal requires that deference be given for findings of credibility and findings of fact.[^4]
Trial Judge’s Decision
[5] The trial judge considered the Charter applications by the defendant to exclude evidence from the breath test on the basis of charter breaches, found doubt as to whether breaches had occurred, and held that in any event the evidence ought not to be excluded. His findings on each of the grounds are as follows:
a. With respect to the defendant’s s. 9 arbitrary detention breach issue:
The testimony (Cst. Burnie) gave was not far different from the testimony you (defendant) gave, and I also found your evidence to be candidly, and refreshingly, honest and forthright.
…….but I am not persuaded that the event described by Officer Burnie is impossible, or even improbable. You may honestly — and I believe your evidence — have thought that he was a parked vehicle and that you had every right to make the turn, but, in fact you were mistaken about that; he was not a parked vehicle, and I accept his testimony that he was driving and intending to move forward at the time and your vehicle moved across the path of someone was in a turning lane.
….he (Cst. Burnie) had reason to believe that you had violated the rules of the road by moving your car across a turning lane when there was a vehicle in that turning lane.
….in any event I believe that he (Cst. Burnie) had a basis upon which to exercise his authority under law to conduct a Highway Traffic Act stop. I am not persuaded, on the evidence before me, that there was an arbitrary detention that occurred when you were pulled over.
b. With respect to the defendant’s s. 10 (a) failure to advise of her detention issue:
He (Cst. Burnie) described how he routinely, as a matter of practice, asks for the documents — the three documents that he did, indeed, ask you (defendant) for and that you confirmed in your testimony — and he also testified that he explained why he had pulled you over. You could not recall an explanation for why he pulled you over. You were, I think, very fair in your evidence, when cross-examined by Mr. Wadden, when you indicated that there was lots happening, and that it was some time ago and you may well have forgotten.
….., I cannot find, on a balance of probabilities, that he failed to advise you that he had pulled you over for a traffic stop.
Therefore, to the extent that the violation of s. 10(a), the right to be informed promptly of the reason for your detention is based on the failure to advise you of the Highway Traffic Act stop, I cannot accept that specific argument that has been put forward on your behalf.
c. With respect to the defendant’s s 10(a) ‘failure to promptly notify’ before the breath test demand was made issue:
In the context of this case, we have the conversation taking place between 02:50 and 02:52, when the officer goes to swipe the licence that you had provided him. At that point, you still had not provided your ownership document. The attempt on your part to continue to look for it was expected, and you did that at the point when he returned to his vehicle.
At some point in that two-minute interval, and it is not clear exactly when, he had asked you whether you had been drinking, and you were honest about the fact that you had consumed alcohol.
At that point, the officer had reasonable grounds to suspect that you had alcohol in your body, and knowing that you were driving, he could have — and according to your lawyer, should have I— made the demand immediately.
As soon as the officer began to ask you questions about your alcohol consumption, how much you had to drink and where you had been, it certainly was evident to you that he was pulling you over not just for the purposes of the initial transaction. But that, in the course of this conversation, your response that you had been drinking changed the circumstances to one where you were potentially in jeopardy for alcohol driving offences. That would have been obvious to you.
I am not persuaded that the law requires him to be explicit about that, given the context of events — pulling you over for a Highway Traffic Act violation, then asking you routine questions about alcohol consumption, receiving an affirmative response. If this is a violation of s. 10(a) by not informing you of the change in the purpose of the detention, it is a very ephemeral breach, which I will return to in a moment.
d. With respect to the breach of the “forthwith demand” issue.
What we are talking about here is a delay of maybe a couple of minutes between the time he forms the grounds and the time he ultimately makes the demand.
In all of the- circumstances, it strikes me that this officer acted with immediacy. This officer acted promptly. He went back to the motor vehicle, having not received ownership from an individual while processing that individual, and it was within a couple of minutes, at most, that he was in the process of actually receiving a breath sample from you.
e. With respect to the s. 24 (2) exclusion of evidence issue:
Even if this delay constitutes a failure to comply with the forthwith requirement and we are to take an approach that requires the officer to instantaneously invoke the demand, I still have to go on and consider whether or not there is a violation that is sufficient to justify the exclusion of the evidence — ….
The first element l am to consider is the seriousness of the Charter violation, and the primary objective here is to evaluate the degree of blameworthiness of the officer — Has the officer acted in a way that requires me to distance myself from his behaviour? — because, as society’s representative, I have to avoid appearing to condone a violation.
We have an officer here who acted with significant dispatch throughout his dealings with you. He understood that he had the obligation to give you immediate advice with respect to your demand that he was going to make. He simply interpreted that demand differently than your counsel has — on a matter which I am not even confident was an incorrect interpretation.
The officer did not act heavy-handedly or dishonestly. I think you agree he treated you with dignity. The officer was doing his job, and while it may not have acquired legal perfection, I think this is an officer whose conduct is not such that it requires sanction or censure by the courts.
Multiple breaches: It may be that there are breaches of s. 10(a) for not having advised you of the change in the nature of your detention and the failure to comply with the forthwith requirement, but, even if so, those two breaches are effectively overlapping, because the failure to advise someone of the reason for their detention would be fulfilled by making the roadside demand. The case of R. v. Kerr, at paragraph 25, links the two and, effectively, makes clear that the description of the demand is sufficient reason for the individual to know they are detained.
So, when I examine the seriousness of the violation here, I would have to say it is at the very lower end of the seriousness of Charter violations.
Gravity of the violation overall: You were pulled over for a Highway Traffic Act reason initially and you were legally obliged to produce your ownership, and you were unable to do that initially and you continued to look for it The officer may, as I say, have been under an obligation to have read you your rights before doing so, but I do not know that anything really changed. You knew you were being detained; you had to remain there in any event.
In any event, the impact on you was really only a matter of a minute, maybe a minute or two, at best, where you did not know exactly why you were pulled over. That officer acted quickly, apart from that potential, very highly technical, failure.
…..but I have to look at the impact of the specific breach, not the impact of the entire event. The impact of the specific breach was, really, that you sat there for a short period of time while looking for your ownership, oblivious to the fact that the officer was in the process of going to get the Alcotest unit and that he was going to require you to give a roadside breath sample.
Exclusion of the evidence: I have to look at the other side of the equation which is that your lawyer is asking me to exclude evidence that is essential to the case for the Crown on a key charge, that is recognized to be a serious offence against which the public requires protection, in a case where your breathalyzer readings were very high and where that evidence is very reliable.
Those breaches are at the very low end, if they exist at all. Under the circumstances, I am going to be admitting the evidence that has been called by the Crown and denying your Charter motion.
[6] After dismissal of the defendant’s charter applications, the defendant pleaded guilty, and was sentenced. The sentence was suspended pending this appeal.
Position of the defendant.
[7] The defendant’s contention is that the trial judge failed to conduct both a subjective and an objective analysis in determining that Cst. Burnie had “a basis upon which to exercise his authority to conduct a highway traffic stop. The defendant complaints that the trial judge failed to find as a fact, on the evidence, that Cst. Burnie could not reasonably have inferred that the defendant had not checked to see whether the turn could have been made in safety. She further asserts that the trial judge misapprehended the evidence of the defendant and the police officer concerning whether she was told of the reason for the traffic stop. She contends that the detention of the defendant by Cst. Burnie was not available for a driving offence without proper grounds; and her detention without proper grounds was therefore arbitrary and unlawful.
[8] The defendant further contends that the trial judge erred in failing to find that Cst Burnie failed to inform the defendant of the changed reason for her detention and that the questioning by the police officer as to whether she had had anything to drink was therefore impermissible.
[9] She further contends that the trial judge failed to exclude evidence of the breathalyzer under s. 24 (2), because he failed to give proper weight to the charter breaches, failed to consider Cst Burnie’s s. 9 charter infringing conduct as serious, in that he did not have a reasonable suspicion for her detention for the traffic stop, and questioned the defendant about her alcohol consumption by asking her to incriminate herself without first advising her of the jeopardy she faced contrary to s 10 (a) of the Charter of Rights and Freedoms.
The Crown’s position
[10] The Crown supports the trial judge’s decision, and contends that the defendant was already being detained while she produced her driver’s licence and insurance when she was asked if she had been drinking, and that there was no obligation on the police officer to preface his question to her with a warning. He argues that there was evidence on which the trial judge could make his findings that the defendant had been told why she had been stopped for the traffic offence, and that in any event, the s. 24 (2) argument should be left for a new trial in the event the appeal is successful.
Analysis
[11] As is often the case after the Appeal has been filed, and further thought has been given, the defendant has refined her grounds of her appeal from those described in her Notice of Appeal. Therefore, I will address the grounds as discussed in oral argument.
s. 9 Arbitrary detention:
[12] The thrust of the defendant’s submissions was to re-argue the evidence at trial to persuade me that the trial judge was wrong to conclude that the police officer had reasonable grounds to believe that the defendant had committed a Highway Traffic Act infraction. It is not the function of an appellate court to re-assess evidence and decide if it would have come to a different conclusion from the trial judge. The standard of review requires that deference be shown to the trial judge’s findings of fact; and only interfere where there has been a demonstrable “finding that is unsupported by the evidence or that is unreasonable and would have affected the result.”[^5] There was clearly evidence on which the trial judge was entitled to come to the conclusion that he did. I do not accept the defendant’s submission on this point.
[13] In considering the standard of review and the deference that is owed by an appellate court, I am satisfied that the trial judge’s reasons demonstrate that he understood his legal obligations in assessing the reasons for the defendant’s traffic stop. He explicitly found the police officer “had reason to believe that you had violated the rules of the road by moving your car across a turning lane when there was a vehicle in that turning lane.” And further implicitly made the objective finding: “In any event I believe that he (Cst. Burnie) had a basis upon which to exercise his authority under law to conduct a Highway Traffic Act stop. I am not persuaded, on the evidence before me, there was an arbitrary detention that occurred when you were pulled over”. I cannot imagine how much more explicit the trial judge could have been. I do not accept the defendant’s contention on this point.
s. 10 (a) Failure to promptly notify the defendant of the basis of her detention after the traffic stop; and again before asking her if she had been drinking.
[14] The defendant contends that the trial judge misapprehended the evidence when he found that the defendant had been told by the police officer why she had been stopped, and that she was unable to recall if she had been given an explanation for the stop. He points to the transcript of the defendant’s evidence at trial when she said “no” in response to the question during examination in chief – “He didn’t tell you at all (why you had been stopped)?” And points to the police officer’s evidence that the reason given to the defendant “would have been ….. for the right hand turn you made across me”, as proof that he had no actual recollection.
[15] The evidence also included the defence counsel in cross-examination asking the police officer – “And what is it that you told her she was being detained for?” And his answer – “A. For making the right turn in front of me for cutting me off for lack of a better term.” I note that the police officer frequently used the phrase “I would have” during his evidence. It would have been open to the trial judge to take that expression as a figure of speech- as regrettable as it might have been- and not an expression meaning that he had no actual memory. It was for the trial judge to assess. The evidence also included that of the defendant in cross-examination agreeing “Q: So your recollection – your memory is that it all unfolded once the stop occurred essentially as he (the police officer) described it? – A: Correct”. She agreed that she had more than one drink. She also said that “that’s a little confusing” in describing the nature of the stop.
[16] The transcript was pretty clear as to the police officer’s evidence that he told the defendant why she was stopped. The transcript is not quite so clear concerning the defendant’s recollection. It is not so clear that there is a direct contradiction between the defendant and the police officer. One must keep in mind that the evidence of a witness includes far more than what might appear in a transcript. There are nuanced facial expressions, tones of voice, head movements, and other body language which must be considered by a trial judge in assessing and interpreting a witness’s response. As noted earlier, it is not the function of an appellate court to re-assess evidence to see if it might have come to a different result. Clearly the trial judge accepted the police officer’s evidence on this point. That finding is entitled to deference.
[17] The trial judge is an experienced jurist. I am not prepared to find that he misapprehended the evidence by a “finding that is unsupported by the evidence or that is unreasonable and would have affected the result” on the question of whether the defendant had been given reasons for her traffic stop that evening.
[18] The police officer asked the defendant where she had been. She told him she had been at a local bar. He then asked if she had had anything to drink. I do not accept the defendant’s submission that before the police officer could ask the defendant if she had had anything to drink, that he was required to say to her- I am now going to ask you some questions unrelated to the Highway Traffic Act: or as he suggested – I am now investigating an alcohol / driving offence. He contended that it was because the defendant’s jeopardy had changed, that she needed to know that a criminal investigation was now underway, and that she was not required to incriminate herself. While finding that: “it certainly was evident to you that he was pulling you over not just for the purposes of the initial transaction. But that, in the course of this conversation, your response that you had been drinking changed the circumstances to one where you were potentially in jeopardy for alcohol driving offences. That would have been obvious to you.”; the trial judge held: I am not persuaded that the law requires him ( the police officer) to be explicit about that, given the context of events — pulling you over for a Highway Traffic Act violation, then asking you routine questions about alcohol consumption, receiving an affirmative response. If this is a violation of s. 10(a) by not informing you of the change in the purpose of the detention, it is a very ephemeral breach, which I will return to in a moment.
[19] The defendant made much of the trial judge’s description of this being an “ephemeral” breach. Not only do I not conclude that the breach was of a transitory nature or very brief, I cannot conclude that there was any breach at all. The defendant relies upon the recent decision in R. v. Evans[^6] to support his argument. It is at most only persuasive authority since it is a lower court decision. The judge purports to consider that he was not bound by R. v. Kumarasamy[^7] on the ground that the judge got the law wrong in relying upon a specific passage in the Court of Appeal decision in R. v Nguyen[^8]. The trial judge in Evans believed that he was not bound by Kumarasamy and appears to suggest that Nguyen (on which Dambrot, J. relied) is not the law in Ontario. The Evans case is not persuasive. Aside from Evans, the suggestions made by the defendant as to what ought to have occurred are not supported by any jurisprudence.
[20] The Supreme Court of Canada has explicitly excluded this kind of debate from RIDE programs, on the ground of public safety.[^9] Where a motorist, as here, is detained lawfully, there cannot be any serious objection taken to a police officer asking that motorist, in the interest of public safety, if they have had anything of an alcoholic nature to drink. It is noteworthy that this defendant was found to have a very high blood alcohol. Had this been a RIDE program, the defendant could not be heard to complain, and public safety would have taken priority. Why not also here where a motorist is lawfully stopped for another lawful purpose such as a possible Highway Traffic Act infraction?
[21] S. 24 (2) Exclusion of evidence of the breathalyzer test: I am satisfied that the trial judge meticulously considered the three part analysis and properly concluded that the evidence should not be excluded.
[22] The appeal is dismissed and the stay of sentence is lifted forthwith.
Honourable Justice Timothy Ray
Released: July 16, 2015
COURT FILE NO.: 12-A13633
DATE: 2015-07-16
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
CAROLYN BORER
Defendant/Appellant
REASONS FOR JUDGMENT
Ray, J.
Released: July 16, 2015
[^1]: Housen v.Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
[^2]: R v Shepherd, 2009 SCC 35, 2009 S.C.C 35, para 20.
[^3]: R v Burns, 1994 127 (SCC), [1994] S.C.J. No. 30 (SCC).
[^4]: R. v. Gagnon 2006 SCC 17 at paragraphs 10 and 19 (SCC)
[^5]: Note 1.
[^6]: R. v. Evans, [2015] OJ. No. 2907, ONCJ 305 (OCJ).
[^7]: R. v. Kumarasamy, 2011 ONSC 1385,15 M.V.R. (6th) 44 (SCJ as Summary Conviction Appeal)
[^8]: R. V. Nguyen, 2008 ONCA 49, [2008] O J. No. 219, ONCA 49 (OCA) paras 16 ff.
[^9]: R v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3 (SCC).