ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
COURT FILE NO.: SCA(P) 505/14
DATE: 20150724
B E T W E E N:
HER MAJESTY THE QUEEN
Robin Prihar, for the Respondent
Respondent
- and -
BEANT SINGH GILL
Peter Thorning, for the Appellant
Appellant
HEARD: July 17, 2015 at Brampton
REASONS FOR JUDGMENT
[On appeal from the judgment of Band J.
dated August 8, 2014]
André J.
[1] The appellant, Mr. Beant Singh Gill, (“Mr. Gill”) appeals his conviction of the charge of excess blood alcohol on the ground that the learned trial judge erred in law in admitting the intoxilyzer results even after finding that the investigating officer had breached his s. 8 and 9 rights under the Canadian Charter of Rights and Freedoms. The Crown however, submits that the trial judge committed no error and accordingly, the appeal should be dismissed.
BACKGROUND FACTS
[2] On June 18, 2012, a member of the Peel Regional Police Force investigated Mr. Gill at a R.I.D.E. spot check. He ultimately arrested Mr. Gill for impaired driving and transported him to a police station. Mr. Gill provided two samples of his breath into an intoxilyzer machine. The samples registered results of 254 mgs of alcohol in 100 millilitres of blood and 220 mgs of alcohol in 100 millilitres of blood.
TRIAL JUDGE’S DECISION
[3] On August 8, 2014, the trial judge convicted Mr. Gill on the charge of excess blood alcohol and acquitted him of the charge of impaired driving.
[4] During the blended trial, P.C. Kosher, the investigating officer, testified that he stopped Mr. Gill at 12:56 p.m. and had a conversation with him. He detected a strong odour of an alcoholic beverage on Mr. Gill’s breath, and noticed that Mr. Gill’s eyes were bloodshot and watery. Mr. Gill admitted to consuming alcohol the evening before. The officer then formed the suspicion that Mr. Gill had alcohol in his body and at 12:59 p.m. provided him with an Approved Screening Device (“ASD”) demand.
[5] The officer testified that while walking to the police cruiser, Mr. Gill “was taking very short and unsteady steps”. Upon arrival Cst. Kosher had a further conversation with Mr. Gill. The officer then observed that the odour of alcohol on Mr. Gill’s breath became stronger and his speech was slurred: Transcript of the evidence, December 19, 2013, page 14.
[6] The officer then formed the opinion that Mr. Gill’s ability to operate a motor vehicle had been impaired by the consumption of alcohol. He arrested him for impaired driving without administering an Approved Screening Device test.
[7] Under cross-examination, Cst. Kosher denied that he had asked Mr. Gill to do a separate walking test to assess his balance. He denied requiring Mr. Gill to do any field sobriety tests: Transcript of the evidence, December 19, 2013, pages 46 and 49.
[8] The officer also denied having Mr. Gill stare at a pen while moving it back and forth, in the police cruiser: Transcript of the evidence, December 19, 2013, page 46.
[9] Mr. Gill testified that Cst. Kosher asked him to read his licence plate and to stare at a pencil which the officer moved back and forth: Transcript of the evidence, January 23, 2014, at page 11.
[10] P.C. Kapitan testified about the location of Constable Kosher and Mr. Gill’s vehicles at the scene of the traffic stop.
[11] The trial judge concluded that Mr. Gill’s s. 8 and s. 9 Charter rights had been violated by P.C. Kosher. He discounted the officer’s testimony that Mr. Gill was unsteady on his feet given that Mr. Gill was wearing his shoes “as if they were slippers”. Second, the trial judge concluded that the smell of alcohol was only relevant to the consumption of alcohol rather than impairment and third, that P.C. Kosher had made no mention in his notes that Mr. Gill’s speech had been slurred: Transcript of the Reasons for Judgment, August 8, 2014, page 25.
[12] The trial judge further opined that even if he was wrong that the officer had violated Mr. Gill’s s. 8 and s. 9 Charter rights, he was unable to rely on the officer’s evidence for the following reasons:
(1) His evidence was internally inconsistent.
(2) His evidence was inconsistent with that of P.C. Kapitan concerning the location of the vehicles at the scene of the police stop.
(3) The trial judge had “very serious concerns” about the accuracy of P.C. Kosher’s recollection of time in this matter.
[13] The trial judge found it “improbable that everything P.C. Kosher described could have taken place between 12:56 and 1:00 p.m.” He stated that according to P.C. Kosher, the following steps were taken between 12:59 and 1:00 p.m.:
(1) An ASD demand was made by a road as it appears in the standard officer memo book.
(2) Mr. Gill walked approximately 50 metres with short and unsteady steps.
(3) The ASD was warmed up and prepared for use.
(4) Some discussion and computer inquiries took place surrounding Mr. Gill’s identity.
(5) P.C. Kosher exited the police car, repeated his demand, and provided some explanation to the applicant.
(6) Mr. Gill made three pleas.
(7) Mr. Gill was arrested.
Transcript of the Reasons for Judgment, August 8, 2014, at pages 26-29.
SECTION 24(2) ANALYSIS
[14] The trial judge assessed the following factors in determining whether to exclude the evidence regarding Mr. Gill’s blood alcohol concentration at the time of driving:
(1) The seriousness of the Charter infringing state conduct.
(2) The impact on the Charter protected interests of the accused; and
(3) Society’s interest in the adjudication of the matter on the merits.
[15] On the first factor, the trial judge concluded that:
In my view, concerns about police evidence that is inaccurate or unreliable do not necessarily rise to that level.
In this particular case, P.C. Kosher proceeded upon a fairly straightforward investigation in the context of a static RIDE Program. While he may have been stern with the applicant at times, his conduct was not oppressive. Unlike the accused in R. v. Macmillan, 2013 ONCA 109, [2013] O.J. No. 727, the applicant did not have a special vulnerability.
I would also point out that P.C. Kosher took some care with the applicant who appeared unwell in the breath testing room, and had provided him with a second opportunity to consult with Counsel at his request between the two breath tests. I also note that the entire investigation was completed within a normal timeframe, from approximately 1:00 p.m. to 5:00 p.m., and that the applicant was released from the station after P.C. Kosher made arrangements for him to be picked up safely. This factor weighs in favour of the inclusion of the evidence.
Transcript of the Reasons for Judgment, dated August 8, 2014, page 33
[16] Concerning the second, the trial judge concluded that:
In my view, while the s. 8 breach constituted an intrusion into the applicant’s bodily integrity and privacy, it was only minimally intrusive and done in a manner that preserved his human dignity. This factor weighs in favour of an inclusion.
[17] Regarding the third factor, the trial judge concluded at page 35 of the Transcript of the Reasons for Judgment dated August 8, 2014, that:
In this case, while there was no evidence of poor or egregious driving, the applicant’s first breath test yielded a B.A.C. that was three times the legal limit. The breath samples are reliable and no argument was made to the contrary. They are also of central importance to the Crown’s case. This factor weighs in favour of admission of the evidence.
ANALYSIS
[18] The appellant raises the following issues regarding the trial judge’s decision to admit the intoxilyzer results into evidence despite his finding that Constable Kosher had breached his s. 8 and s. 9 Charter rights:
(1) His failure to decide whether Cst. Kosher conducted any sobriety tests constituted an error of law.
(2) He considered irrelevant information in his s. 24(2) analysis.
(3) Whether the trial judge’s decision to deal with the impaired driving charge before rendering his decision on the Charter application constitutes an error in law.
ISSUE NO. ONE: Did the trial judge’s failure to decide whether Cst. Kosher conducted any sobriety tests constitute an error in law?
[19] An appellate court should show a considerable degree of deference to a trial judge who has considered the proper factors and has not made any unreasonable findings in his or her s. 24(2) analysis: see R. v. Grant, [2009] 1 S.C.R. 353 at para. 86; R. v. Beaulieu, 2010 SCC 7, [2010] 1 S.C.R. 248 at para. 5; R. v. Coté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 44.
[20] A trial judge’s assessment of credibility must be accorded considerable deference, absent palpable and overriding error: R. v. Dinardo, 2008 SCC 24, [2008] SCJ No. 24, at paras. 26-29.
[21] In deciding whether or not the breathalyzer tests should be excluded, the trial judge properly considered the three avenues of inquiry set out in R. v. Grant, namely:
i) the seriousness of the Charter-infringing state conduct;
ii) the impact on the breach on the accused’s Charter; and
iii) society’s interest in an adjudication of the case on its merits.
[22] In assessing Cst. Kosher’s testimony, the trial judge concluded that his concerns about the inaccuracies and unreliable nature of the officer’s testimony did not rise to the level of police misconduct that undermines the public’s confidence in the administration of justice.
[23] It was open to the trial judge to characterize the officer’s testimony in that manner. His failure to make a finding about whether the officer conducted sobriety tests in my view, does not constitute a reversible error in this case. There is no need to prove that the trial judge was alive to and considered all the evidence, or answered each and every argument of counsel: R. v. Dinardo, at para. 30. The trial judge’s reasons responded to the live issues in the case.
[24] Second, this omission cannot be construed as a palpable and/or overriding error that warrants appellate intervention.
[25] Third, with respect to the time discrepancies between the officer’s testimony and the times indicated on a computer printout of time queries made by the officer, the trial judge made it clear, at page 31 of the Transcript of the Reasons for Judgment dated August 8, 2014, that he did not find the officer had altered his time entry “for any dishonest purpose”.
[26] Additionally, the trial judge concluded at page 33 of his decision that while the officer “may have been stern with the applicant at times, his conduct was not oppressive”. It is clear therefore, that even if the trial judge had found as a fact that the officer had conducted sobriety tests at the scene of the traffic stop, that would not have made a difference in his s. 24(2) analysis.
ISSUE NO. TWO: Did the trial judge consider irrelevant information while conducting his s. 24(2) analysis?
[27] In analyzing the seriousness of the Charter-infringing state conduct, the trial judge noted the following:
I would also point out that P.C. Kosher took some care with the applicant who appeared unwell in the breath testing room, and had provided him with a second opportunity to consult with Counsel at his request between the two breath tests. I also note that the entire investigation was completed within a normal timeframe, from approximately 1:00 p.m. to 5:00 p.m., and that the applicant was released from the station after P.C. Kosher made arrangements for him to be picked up safely. This factor weighs in favour of the inclusion of the evidence.
[28] The trial judge made these observations while considering the seriousness of the Charter-infringing state conduct. The fact that the officer made arrangements for Mr. Gill to be picked up safely or provided him with a second opportunity to consult with counsel between the two breath tests should not, in my view, have been considered as factors that weighed in favour of including the evidence. For example, acts of Charter-infringing state misconduct by an arresting officer cannot be absolved by subsequent acts of compassion or kindness.
[29] That said, it is clear that the trial judge ruled that this factor weighed in favour of the inclusion of the evidence primarily because of his finding that Cst. Kosher’s evidence, while inaccurate and unreliable, did not rise to the level of misconduct that would justify exclusion of his evidence.
ISSUE NO. THREE: Whether the trial judge’s decision to deal with the impaired driving charge in advance of rendering his decision on the Charter application, constitutes an error in law?
[30] In my respectful view, it does not. There is no evidence to suggest that the trial judge’s decision to do so affected the outcome of his decision on the appellant’s Charter application. Significantly, under the inquiry headed, “Society’s interest in adjudication on the merits”, the trial judge noted that “while there was no evidence of poor or egregious driving,” the appellant’s blood alcohol concentration was three times the legal limit. Given the paucity of evidence regarding the indicia of impairment in this case, the trial judge’s failure to consider this additional factor would not have affected his analysis regarding this inquiry. To that extent, his decision to acquit the appellant on the impaired driving charge before arriving at a decision concerning the Charter application, does not constitute an error of law.
DISPOSITION
[31] For the above reasons, the appeal is dismissed.
André J.
Released: July 24, 2015
COURT FILE NO.: SCA(P) 505/14
DATE: 20150724
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
BEANT SINGH GILL
Appellant
REASONS FOR JUDGMENT
André J.
Released: July 24, 2015