ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 60/14

DATE: 20150723

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TRUNG LE TRAN

Megan Petrie, for the Crown, Appellant

Venus Sayed, for the Respondent

HEARD: March 13, 2015

r.f. goldstein j.

REASONS FOR JUDGMENT on summary conviction appeal

[1] Does a police officer need to be qualified as an expert witness in order to give evidence about a field sobriety test conducted during an impaired driving investigation? That is the question raised by this appeal.

[2] Mr. Tran was speeding. A police officer pulled him over. The officer smelled alcohol. He conducted a field sobriety test. Mr. Tran failed. The officer then arrested him for impaired driving and demanded a breath sample. Mr. Tran was taken to the police station. He provided two samples of his breath. Both samples showed that he exceeded the legal limit. He was charged with “over 80” and impaired driving.

[3] At trial Mr. Tran’s counsel argued that the officer conducting the field sobriety test should have been qualified as an expert in order to give evidence. The trial judge, Mr. Justice D. Cole of the Ontario Court of Justice, agreed. He acquitted Mr. Tran.

[4] With great respect to the judge, he erred in law by finding that a police officer needs to be qualified as an expert in order to give evidence of a field sobriety test. On May 1, 2015 I allowed the Crown’s appeal and ordered a new trial. I indicated that my reasons would follow. These are my reasons.

FACTS

[5] On October 16, 2012 Mr. Tran was driving at 12:48 am. He was driving a white Subaru southbound on Kipling Avenue in Toronto. Constable Matthews clocked Mr. Tran driving at 81 km/h in a 50 km/h zone. He pulled Mr. Tran over for speeding. He went to the driver’s side window. He smelled something like cleaning supplies. He asked if Mr. Tran had been drinking. Mr. Tran said that he had had one drink. The officer then took Mr. Tran’s documents back to his police car to write up a ticket. When he returned he noticed a smell of alcohol coming from Mr. Tran’s breath.

[6] Constable Matthews was suspicious that Mr. Tran had alcohol in his body. He demanded that Mr. Tran perform a field sobriety test. A standard field sobriety test consists of three parts but it is basically a test of physical coordination. The tests are set out by regulations made under the Criminal Code. Constable Matthews had received training in conducting a field sobriety test. Making a demand for a field sobriety test is equivalent to making a demand that a driver blow into an approved screening device. A poor showing on the field sobriety test is basically the same thing as a “fail” when a driver blows into an approved screening device. A “fail” gives an officer reasonable grounds to demand samples of breath in order to measure blood alcohol content and to make an arrest for impaired driving.

[7] Mr. Tran performed poorly. At 1:08 am Constable Matthews arrested Mr. Tran for impaired driving. He made a demand that Mr. Tran provide breath samples for an approved instrument. He then transported Mr. Tran to the police station. Mr. Tran provided two samples of his breath to Constable Khurshad, the breath technician. The samples showed that his blood alcohol content was 120 mg and 110 mg of alcohol per 100 ml of blood. He was charged with “over 80” and impaired driving. The Crown abandoned the impaired driving charge at trial.

[8] Constable Matthews was the only witness at the trial. Mr. Tran’s blood alcohol content was proven by way of certificate. Much of the cross-examination of the officer was directed at the factual basis supporting his reasonable grounds to arrest. Defence counsel (who was not counsel on the appeal) applied for a directed verdict at the close of the Crown’s case. She argued that the officer was conducting a drug evaluation under s. 254(3.1) of the Criminal Code. That section permits an officer to demand that a driver submit to a drug evaluation by a drug evaluation officer. The officer making the demand must have reasonable grounds to believe that the driver is drug-impaired. She based her argument that drugs were in play on the wording of the standard demand read by Constable Matthews. There was certainly no evidence that Constable Matthews ever thought that Mr. Tran was impaired by drugs. Defense counsel also argued that the officer did not even have a basis to perform the field sobriety test, let alone make a finding that he was impaired.

[9] The trial judge dismissed the directed verdict application. The trial judge said this:

All right. Thank you. I have before me presently a motion for a directed verdict in relation to the charge of impaired driving on the basis that the officer had (a) no authority to cause the accused to perform what have been referred to as field sobriety tests, and (b), that this was in fact a drug evaluation under 254(3.1), rather than an evaluation of the accused’s sobriety under 254(3).

It has taken me some time to understand the statutory framework here. I think Mr. Arnold [Crown counsel] is right. I don’t think at this stage I can decide that the Crown has not made out a case. I think the officer did have the authority to cause the accused to perform these sobriety tests because the officer was qualified to require him to perform them, which is an agreed fact. And thus, at the stage that I am dealing with, I am not satisfied that a directed verdict should follow.

[10] The defence called no evidence. The trial judge then heard closing submissions. Defence counsel argued that the results of the field sobriety test were inadmissible because Constable Matthews was not qualified as an expert. She also argued that the police violated Mr. Tran’s rights under s. 8 and s. 9 of the Charter. The Charter was violated, she argued, because the field sobriety test did not disclose reasonable grounds to believe that Mr. Tran was impaired. The arrest was, therefore, unlawful.

[11] The trial judge agreed with defence counsel that the officer should have been qualified as an expert. These were his reasons for dismissing the “over 80” charge:

No, thank you. It seems to me that one of the reasons we have screening devices at the scene is because they are a scientific basis for evaluating whether or not further steps can be taken to interfere with a citizen’s right to be left alone. It seems to me, at the very least, Parliament has chosen to replace this, as they apparently have, with the right of officers to perform field sobriety tests. There must be some level of expertise. I take Crown counsel’s point, that this is not the drug evaluation per se, but it seems to me that this officer should have been qualified as an expert. His failure to do so means that I have insufficient evidence, and therefore the accused is acquitted of the over 80.

[12] The trial judge did not deal directly with the Charter issue. By implication, however, he must have found that the statutory pre-requisite of reasonable grounds to make a demand was not met.

ANALYSIS

[13] In my view, a police officer performing a field sobriety test need not be an expert. He or she does not need to meet the criteria set out in R. v. Mohan, 1994 SCC 80, [1994] 2 S.C.R. 9. Respectfully, the trial judge erred in finding that Constable Matthews should have been qualified under the Mohan test. I say this for three reasons:

• The regulatory scheme does not require it;

• A drug evaluation officer does not need to be an expert: R. v. Bingley, 2015 ONCA 439. If a drug evaluation officer does not need to be an expert it is difficult to see why an officer conducting field sobriety test needs to be an expert;

• The evidence of a field sobriety test is only admissible to show that the officer had grounds to make a breath demand. It is not admissible as evidence of guilt: R. v. Milne (1996), 1996 ON CA 508, 28 O.R. 577 (C.A.).

(a) The Regulatory Scheme Does Not Require That An Officer Be Qualified As An Expert Witness

[14] The highly detailed scheme of the Criminal Code explains why Constable Matthews did not need to be qualified as an expert witness.

[15] The investigation of impaired driving offences where an officer flags down a motorist usually proceeds in two stages: the reasonable suspicion stage and the reasonable grounds stage. The first step occurs where a peace officer suspects that a driver has alcohol or drugs in his or her body. The Criminal Code provides investigative tools to determine whether the investigation can go from reasonable suspicion about the presence of alcohol or drugs to reasonable grounds to believe an offence has occurred. These tools are the field sobriety test and the approved screening device. The officer can demand that a driver submit to one of these. The threshold to make a demand is low: R. v. Lindsay (1999), 1999 ON CA 4301, 134 C.C.C. (3d) 159 (C.A.).

[16] At this first stage, where there is only reasonable suspicion, an officer has a choice of which of these two investigative tools to use where alcohol is concerned. That is clear from the plain language of s. 254(2). I will set out the key parts, without reference to impairment by drugs – which seems to have confused the issue at trial (I also leave out references to things like aircraft and railway equipment) and with my emphasis added:

254. (2) If a peace officer has reasonable grounds to suspect that a person has alcohol… in their body and that the person has… operated a motor vehicle… the peace officer may… require the person to comply with… either or both of paragraphs (a) and (b) in the case of alcohol:

(a) to perform forthwith physical coordination tests to enable the peace officer to determine whether a demand may be made under subsection (3) … and

(b) to provide forthwith a sample of breath that… will enable a proper analysis to be made…

[17] Prior to the enactment of s. 254(2)(a) in 2008, there was no doubt that a police officer in Ontario had authority under s. 30 of the Highway Traffic Act (now s. 48(1)) to require a driver to submit to a physical coordination test in order to determine whether there was evidence to justify a breath sample demand: R. v. Saunders (1988) 1988 ON CA 197, 41 C.C.C. (3d) 532 (C.A.). No doubt a police officer also had (and still has) the authority to require a physical coordination test at common law, in the exercise of his or her general duty to prevent crime and keep the peace. Nothing in Saunders suggests that under the Highway Traffic Act or at common law an officer conducting a field sobriety test needed to be an expert in the Mohan sense.

[18] Reference to the other investigative tool – the approved screening device – is useful. An approved screening device is meant to give a rough measure of whether a person has more than 80 mg of alcohol in 100 ml of blood in his or her body. Failure, as I’ve noted, gives a police officer reasonable grounds to demand that the person provide samples to a qualified breath technician. There is no requirement in the Criminal Code that an officer administering an approved screening device to be an qualified as an expert in the Mohan sense.

[19] The specifics of the field sobriety test are set out in the regulations. Failure also gives a police officer reasonable grounds to demand that the person provide samples to a qualified breath technician using an approved instrument (and to make an arrest). In that sense, a field sobriety test is no different from the use of an approved screening device. If an officer using an approved screening device does not need to be qualified as an expert, it is difficult to see how an officer conducting a field sobriety test needs to be qualified as an expert witness.

[20] Let me also deal with impairment by drugs, since, as I’ve noted, that seems to have confused the issue at trial. A summary conviction appeal court must have regard to the circumstances under which a judge of the Ontario Court of Justice works, where time pressures are great and oral judgments at the end of the evidence are common. Unfortunately, however, it appears that the trial judge conflated a field sobriety test under s. 254(2)(a) of the Criminal Code with a drug evaluation under s. 254(3.1). They are not the same. I also respectfully disagree with the trial judge that the science of field sobriety tests unsettled from a legal point of view, given the detailed scheme set out in the Criminal Code and the Regulations for scientific testing: Bingley, at paras. 45, 48. Where a police officer has reasonable suspicion that a driver has a drug in their body only a field sobriety test is available. Again, failing the field sobriety test will give an officer reasonable grounds to move to the second step: a demand that the person submit to a drug evaluation. That is also clear from the plain language of s. 254(2). I will set out the key parts, without reference to impairment by alcohol this time:

254 (2) If a peace officer has reasonable grounds to suspect that a person has… a drug in their body and that the person has… operated a motor… the peace officer may… require the person to comply with paragraph (a), in the case of a drug…:

(a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection… (3.1)…

[21] Subsection 254(3.1) of the Criminal Code (which is referenced in the above excerpt from s. 254(2)(a)) is the requirement that the driver submit to an evaluation by an evaluating officer.

[22] The second stage of the two-stage process occurs where a police officer forms reasonable and probable grounds – not mere suspicion – to believe that a driver is impaired by drugs, alcohol, or a combination of drugs and alcohol. Parliament has provided the police with investigative tools for this second step: those tools include a drug evaluation by a drug evaluation officer and/or breath samples for an approved instrument operated by a qualified breath technician.

[23] An officer performing a test at the second stage – either a breath technician or a drug evaluation officer – is designated by order or regulation and his or her qualifications are regulated. In contrast, the Criminal Code or the regulations do not require that an officer performing a test at the first stage – either an approved screening device or a field sobriety test – needs to have a particular designation or qualification. Thus, Parliament has obviously required a higher level of qualification and training at the second step but not the first. This requirement applies whether alcohol or drugs are at issue. That brings me to the Bingley case.

(b) The Bingley Case Is Close To A Complete Answer

[24] After I allowed the appeal from the bench, but prior to the release of these reasons, the Ontario Court of Appeal decided Bingley, a case I referred to earlier. Bingley is not a complete answer to this issue, but it goes a very long way towards one. The trial judge obviously did not have the benefit of the Court of Appeal’s decision in this matter.

[25] A police officer believed Bingley was driving while impaired. She did not detect an odour of alcohol. A roadside test detected only a very small amount of alcohol in his blood. The officer therefore required him to submit to a field sobriety test. He failed, and was arrested for impaired driving. The police officer then required that he submit to a drug evaluation pursuant to s. 254(3.1) of the Criminal Code. A qualified drug recognition expert performed the test in accordance with the regulations. The drug recognition expert concluded that Bingley was impaired by reason of drugs. Bingley was tried and acquitted. The Crown successfully appealed. He was acquitted at his second trial. Although the second trial judge found that there was ample evidence of impairment, he refused to admit the evidence of the drug recognition expert. The trial judge said that he should have been qualified as an expert under Mohan. The Crown successfully appealed again. Bingley sought and obtained leave to appeal further to the Court of Appeal.

[26] Cronk J.A. concluded that the drug recognition officer does not need to be qualified as an expert under Mohan as long as he or she is properly qualified under the regulations. She noted that the detailed scheme adopted by Parliament only permits qualified peace officers to give an opinion under s. 254(3.1).

[27] If a drug recognition expert conducting an evaluation under s. 254(3.1.) need not be qualified as an expert in the Mohan sense, it is difficult to see how an officer merely performing a first-stage field sobriety test needs to be qualified as an expert. Individual police forces (or even provincial regulations) may have policies in place regarding the training and qualifications of officers performing these tests, but they are not mandated by the Criminal Code or the regulations.

[28] I note that in Bingley defense counsel had argued that s. 254(3.1) of the Criminal Code was only a pre-requisite to a demand for a blood or urine sample under s. 254(3.4). Cronk J.A. rejected that submission and made the following observation (at paras. 40-41):

Under s. 254(2)(a), if an officer has reasonable grounds to suspect a person has alcohol or a drug in their body and that person has, within the preceding three hours, operated a motor vehicle, the officer may require the person to perform certain physical coordination tests

"to determine whether a demand may be made under subsection (3) or (3.1)".

The language of s. 254(3.1) stands in stark contrast to that of s. 254(2)(a). Section 254(3.1) does not state that the DRE's evaluation is to enable the DRE to determine whether a demand may be made under s. 254(3.4). Instead, s. 254(3.1) provides that the DRE's evaluation is "to determine whether the person's ability to operate a motor vehicle...is impaired by a drug or by a combination of alcohol and a drug".

[29] In my view, the reasoning in Bingley is directly applicable to this case.

(c) The Results Of A Field Sobriety Test Are Not Admissible On The Issue of Guilt Or Innocence

[30] Finally, given that the results of a field sobriety test are inadmissible on the ultimate issue, I simply do not see how an officer conducting one is required to be qualified as an expert witness.

[31] The limited purpose of the field sobriety test (or the approved screening device) was canvassed in Milne, which I also referred to earlier. In that case the issue was whether evidence of a physical coordination test could be used at trial to determine guilt or innocence prior to giving rights to counsel. Moldaver J.A. (as he then was) determined that they could not be used for that purpose, based on principles of self-incrimination. The tests were designed, he said (at para. 24):

… to be an investigative tool to allow police to remove impaired drivers from the highway immediately. Their use was to be limited to that of enabling the officer to make a demand under s. 254 of the Criminal Code if the results of the tests provided the reasonable and probable grounds necessary to justify a demand.

[32] In considering the liberty interest at stake, Moldaver J.A. noted at para. 37 that roadside screening device and physical coordination tests “take but little time and cause only minor inconvenience to the motorist.”

[33] The Supreme Court of Canada approved the reasoning in Milne in R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3.

[34] The reasoning in Milne supports the view that an officer conducting a field sobriety test need not be an expert.

DISPOSITION

[35] Although there was ample evidence upon which Mr. Tran could have been convicted, given that the trial judge made no findings of fact it is more appropriate to order a new trial.

R.F. Goldstein J.

Released: July 23, 2015

COURT FILE NO.: 60/14

DATE: 20150723

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TRUNG LE TRAN

REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL

R.F. Goldstein J.