ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-14-872-00
DATE: 2015 08 06
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
D. Scapinello, for the Respondent
- and -
MICHAEL PARRIS
Appellant
S. Whitzman, for the Appellant
HEARD: June 18, 2015
REASONS FOR JUDGMENT
Woollcombe J.
[1] The appellant, Michael Parris, appeals from his conviction by Madam Justice Morneau on May 7, 2014 for one count of driving over 80.
[2] There are two issues raised by the appellant:
a. Whether the trial judge erred in allowing the presumption of identity, as contained in s. 258(1)(c) of the Criminal Code, to apply when the police had failed to make the breath demand under s. 254(3) of the Criminal Code as soon as practicable; and
b. Whether the trial judge erred in failing to exclude from evidence, pursuant to s. 24(2) of the Charter, the certificate of analysis.
THE FACTS
[3] At about 11:48 p.m. on June 1, 2013, OPP Officer Larson stopped a motor vehicle driven by the appellant, Mr. Parris. The officer had clocked the vehicle travelling at a speed of 108 kph in an area where the posted speed limit was 80 kph, and stopped it for speeding. While speaking to the appellant, the officer detected the odour of burnt marijuana coming from within the motor vehicle. Although the appellant denied having smoked marijuana recently, the officer noted that his eyes were squinted more than he would consider normal. The officer also saw a clear zip lock baggy on the passenger seat and believed that it contained cannabis marijuana in a bud form. At 11:52 p.m., the officer told the appellant he was under arrest for possession of cannabis marijuana. The appellant provided his driver’s license and was asked to exit the vehicle.
[4] When the appellant got out of the vehicle, he staggered and required assistance to stand up. The appellant was handcuffed. The officer noted that his eyes were bloodshot and that there was an odour of alcohol on his breath. The appellant staggered noticeably as he was escorted to the police cruiser.
[5] Officer Larson asked the appellant about his alcohol consumption and the appellant responded that he had consumed four or five beers throughout the day, with the last one about an hour before.
[6] Officer Larson cautioned the appellant at 11:54 p.m. and read him his rights to counsel at 11:55 p.m, both in relation to his arrest on the possession of marihuana charge under the Controlled Drugs and Substances Act (CDSA). The appellant indicated that he understood and was unsure if he wanted duty counsel or a private lawyer.
[7] Officer Larson continued his investigation and formed grounds to make a roadside screening breath sample demand. That demand was made at 11:56 p.m. After demonstrating for the appellant how to provide a sample for the approved screening device, the appellant was asked to provide a sample. On his third attempt, at 11:59 p.m., he provided a suitable sample, which resulted in a fail.
[8] A tow truck was called but Constable Durocher, who was assisting Officer Larson, had to leave the scene to attend to another call. Officer Larson waited for Constable Durocher to return as he did not want to leave the appellant’s car unattended.
[9] Officer Larson and the appellant left the scene at 12:15 a.m.
[10] Officer Larson made no entry in his notebook of making the Intoxilyzer demand and what, if anything, the appellant said in response. He testified that he told the appellant that he was transporting him to provide further samples of his breath at the police detachment. He said that he read the formal Intoxilyzer demand from the OPP issued card at some point between 12:15 a.m., when they left the scene, and 12:46 a.m., when they arrived at the detachment.
[11] At 12:55 a.m., the appellant asked to speak with duty counsel. A message was left and duty counsel called back to the detachment and spoke to the appellant between 1:20 a.m. and 1:25 a.m. Officer Larson then turned the appellant over to the breath technician.
[12] The appellant’s two samples were taken at 1:35 a.m. and 1:58 a.m. resulting in readings of 140 mg alcohol in 100 mL of blood and 120 mg alcohol in 100 mL of blood.
THE POSITIONS OF THE PARTIES AT TRIAL
[13] The trial was conducted as a blended voir dire/trial. Various arguments were advanced on behalf of the appellant. While not always easy to follow, trial counsel’s position (not Mr. Whitzman) included:
a. A claim for exclusion of the Intoxilyzer results under s. 24(2) of the Charter on the basis of violations of:
i. s. 10(b) of the Charter because the officer administered the breath sample demand following the accused’s equivocation about whether to exercise the right to counsel in relation to the CDSA charge;
ii. s. 8 of the Charter because of the officer: (a) failed to make an Intoxilyzer demand or (b) failed to make the Intoxilyzer demand “as soon as practicable” or (c) lacked grounds to make an Intoxilyzer demand;
b. A claim that as a result of the police failing to make the Intoxilyzer demand “as soon as practicable” the Crown ought to be denied the ability to rely on the presumption of identity in the Criminal Code.
[14] It was the Crown’s position that there had been no breach of either ss. 8 or 10(b) of the Charter, that the demand had been made as soon as practicable, and that the appellant ought to be convicted.
THE TRIAL JUDGE’S REASONS FOR JUDGMENT
[15] The trial judge provided oral reasons for judgment. She concluded that the officer had grounds to make the roadside screening breath sample demand and that there was no s. 8 breach from the officer doing so.
[16] She held that the officer was not required to suspend the investigation on the over 80 offence because the appellant had not yet made up his mind about whether he wished to speak with counsel following the CDSA arrest. She held that the appellant was afforded an opportunity to speak with counsel and so dismissed the s. 10(b) Charter argument.
[17] The trial judge found that the officer explained to the appellant that they were returning to the detachment so that he could provide a breath sample. The formal Intoxilyzer demand was made at some point between 12:15 a.m. and 12:46 a.m. The trial judge found that when the officer had grounds to make the demand at midnight, and might not have made the demand until 46 minutes later, the demand had not been made “as soon as practicable”.
[18] The trial judge then found, relying on R. v Forsyth, (2009) 2009 MBCA 123, 250 C.C.C. (3d) 90 (Man.C.A.), that the fact that the Intoxilyzer demand was not made as soon as practicable did not render the certificate inadmissible, but may leave the accused with a Charter argument. She held that there had been a s. 8 breach as a result of the failure to comply with the Code requirement that the demand for the Intoxilyzer be made as soon as practicable. But, applying the factors set out in the Supreme Court of Canada’s decision in R. v. Grant, she held that the certificate should not be excluded under s. 24(2) of the Charter.
[19] Following the oral reasons, defence counsel raised with the trial judge that although she had found that a Charter breach, he had asked for not only the exclusion of the certificate under s. 24(2), which he had clearly lost, but also for the presumption of identity not to be available to the Crown. The trial judge agreed that she had not addressed that issue and provided further oral reasons. She concluded that the administration of justice would not be brought into disrepute by allowing the certificate to be filed, and that she was satisfied that the Crown should not be disentitled from relying on the presumption of identity.
[20] The appellant was convicted and was fined $1,000.00. He was prohibited from driving for one year.
THE POsitions ON APPEAL
The position of the appellant
[21] The appellant’s primary position on appeal is that having found that the breath demand was not made as soon as practicable, the trial judge erred in law in not granting the remedy of disentitling the Crown from relying on the presumption of identity. A secondary argument is made that having found a s. 8 breach, the trial judge erred in declining to exclude the certificate evidence under s. 24(2) of the Charter.
The position of the Crown
[22] It is the Crown’s position that the trial judge made no error in admitting the certificate of analysis under s. 24(2). The Crown argues that defence counsel at trial never clearly made the argument advanced on appeal about the lack of availability of the presumption, and that this new argument ought not to be permitted on appeal.
THE GROUNDS OF APPEAL
Did the trial judge err in not precluding the Crown from relying on the presumption of identity?
[23] I will consider first the argument made that the Crown ought to have been disentitled from relying on the presumption of identity in 258(1)(c).
[24] After reviewing the submissions with care, I am satisfied that this argument was made before the trial judge, albeit inelegantly, and that it is properly before me on appeal.
[25] I begin with the relevant section of the Criminal Code. Section 254(3) states:
(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person
(a) to provide, as soon as practicable,
(i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood…[emphasis added]
[26] Section 258(1) provides:
(c) where samples of breath of an accused have been taken pursuant to a demand made under subsection 254(3), if
(ii) each sample was taken as soon as practicable after the time that the when offence was alleged to have been committed and, in the case of the first sample not later than two hours after that time, with an interval of at least fifteen minutes between the times when the sample were taken, evidence of the results of the analysis so made is conclusive proof that the concentration of alcohol in the accused's blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses ..."
[27] Section 258(1)(c) of the Code provides that as long as the samples were taken as soon as practicable, evidence of the results of analysis of the breath samples that have been taken pursuant to a demand made under s. 254(3) may be used as presumptive evidence of the concentration of alcohol in the blood of the accused at the time the offence is alleged to have taken place. The presumption of identity eliminates the need for expert evidence relating the breathalyser results to the blood alcohol concentration of an accused at the time of the driving.
[28] The appellant argues that the failure to make the breath demand as soon as practicable disentitles the Crown from being able to rely on the presumption in s. 258(1)(c). This is said to be a remedy independent of any Charter remedy. For the reasons set out below, I do not accept this argument.
[29] First, it seems to me that the plain meaning of s. 258(1)(c) does not suggest that the presumption of identity is unavailable when the demand is not made as soon as practicable. Parliament could have said expressly that the presumption of identity is only available both when the demand is made as soon as practicable and when the sample is taken as soon as practicable. It chose not to and, instead, expressly made the presumption of identity unavailable when the sample is not taken as soon as practicable. This implies, I think, that the presumption is still available in circumstances in which the demand is not made as soon as practicable.
[30] Second, it is clear that an accused has a remedy under s. 24(2) of the Charter on the basis of a claim of a s. 8 violation. This point was made by the Manitoba Court of Appeal in R. v. Forsyth 2009 MBCA 123, a case in which the Court considered whether a failure to comply with one of the preconditions in s. 254(2) meant that the certificate of analysis could not be admitted into evidence. Rejecting this idea, the Court held:
This does not mean that the admissibility of a breathalyzer certificate, and the results therein, that are obtained in contravention of the requirements of s. 254(3) are unassailable; rather, as is explained in Banman and Charette, they can and should be challenged by way of an application for exclusion under the Charter. For example, Banman involved an allegation of a breach under s. 8 of the Charter, which relates to an unreasonable search and seizure.
[31] Third, an issue very similar to this one appears to have been decided against the appellant by the Court of Appeal in R. v. Charette 2009 ONCA 310. There, the Court considered whether, in the absence of a Charter application, the Crown could avail itself of the presumption in s. 258(1)(c) of the Code, when an accused had provided breath samples pursuant to a demand made under s. 254(3) of the Code, in circumstances in which the officer lacked reasonable and probable grounds for making the demand. The Court of Appeal followed the Supreme Court of Canada’s decision in R v. Rilling, 1975 159 (SCC), [1976] 2 S.C.R. 183, which established that the lack of reasonable and probable grounds to believe that an individual's ability to drive is impaired by alcohol does not mean that the incriminating certificate of analysis is inadmissible if the driver complies with the breathalyzer demand. In Charette, the Court of Appeal concluded that in the post-Charter era, Rilling remains good law and that the Crown may rely on the presumption of identity in these circumstances.
[32] If the presumption of identity is available when the Crown has not complied with s. 254(3) by proving that the officer had reasonable and probable grounds to make the demand, there is no reason for it not also to be available when the Crown fails to prove that the officer made the breath demand as soon as practicable as required by s. 254(3).
[33] While Charette was a case in which there was no Charter application, in R. v. Anderson 2013 QCCA 2160, the Quebec Court of Appeal considered this issue in a case in which the accused had been unsuccessful in having the certificate excluded under s. 24(2) of the Charter, but argued that there ought still to be a bar to the Crown relying on the presumption. In dismissing this argument, the Court held:
47 I see no reason to set aside the position taken by this Court and by the Court of Appeal for Ontario: Rilling is still applicable, and when breath samples are obtained without reasonable grounds for the demand, the evidence may be excluded only if the accused has made such a claim under subsection 24(2) of the Charter.
48 A final question remains: Does the presumption of identity continue to apply when the motion to exclude the evidence has been dismissed?
49 In my opinion, the trial judge was correct in saying that when a motion to exclude evidence is dismissed, [translation] "the accused is in the same situation as an accused who has not invoked the Charter, and Rilling applies. The certificate of analysis is admissible in evidence, and the presumptions apply".
50 The logical outcome of admitting the breathalyzer evidence is the application of the presumption of identity.
51 To find otherwise would indirectly undermine the still-applicable principles in Rilling and considerably reduce the effect of the judgment rendered under subsection 24(2) of the Charter.
52 In this case, the appellant filed his motion to exclude the evidence, which was dismissed for the reasons outlined above. Having complied with the breathalyzer demand, and the evidence having been ruled admissible, he may not ask the Court during closing arguments of the trial on the merits to revisit the issue as to whether there were reasonable grounds to order the tests as a way of challenging the presumption of identity.
[34] I find this analysis compelling. An accused whose complaint is that the police have failed to comply with s. 254(3) may seek a remedy under s. 24(2) of the Charter. If that claim is dismissed, Rilling and Charette apply, the certificate may be filed, and the Crown may rely in the presumption.
[35] I acknowledge that there were a few decisions put before me in which trial judges have held that the failure to make a demand as soon as practicable precludes Crown’s ability to rely on the presumption of identify or the certificate of analysis (See, for example: R. v. Whitesell, 1998 3082 (BC SC), [1998] B.C.J. 303 (B.C.S.C.) at para. 2; R. v. Furry, [1990] B.C.J. No. 1927 (B.C.S.C.); R. v. Hawkins 2013 ONCJ 115 at paras. 90-92). None of them appears to me to explain why this remedy is appropriate and none grapples with the impact of Charette. I am not persuaded that I should follow these cases.
[36] I conclude that the trial judge made no error in her decision not to disentitle the Crown from relying on the presumption of identity in s. 258(1)(c) as a result of the officer’s failure to make the intoxilyzer demand as soon as practicable.
Did the trial judge err in not excluding the certificate of analysis under s. 24(2) of the Charter?
[37] In reviewing a trial judge’s analysis under s. 24(2), the Supreme Court of Canada has made clear that the trial judge is owed deference. In R. v. Grant, 2009 SCC 32 at para. 126, the Court said:
The weighing process and balancing of these concerns is one for the trial judge in each case. Provided the judge has considered the correct factors, considerable deference should be accorded to his or her decision…
[38] The Supreme Court of Canada explained in Grant that when considering an application to exclude evidenced under s. 24(2), the court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to:
(1) the seriousness of the Charter-infringing state conduct;
(2) the impact of the breach on the Charter-protected interests of the accused; and
(3) society's interest in the adjudication of the case on its merits.
[39] At the first stage of the analysis, the court is to consider the nature of the police conduct that infringed the Charter. The critical issue is whether the admission of the evidence would bring the administration into disrepute by sending a message that the courts “effectively condone the state deviation from the rule of law by failing to dissociate themselves from the fruits of the unlawful conduct”: Grant at para. 72. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct by excluding the evidence linked to that conduct.
[40] In this case, the trial judge dealt specifically with the issue of whether there had been a serious violation. She concluded that while the officer could have made a more timely demand, he did make it clear to the appellant during transportation that he was being transported to the detachment to provide further breath samples.
[41] It is my view that the trial judge made no error in her consideration of the first factor. There was nothing intentional or deliberate on the part of the officer that led to the violation. While the appellant submits that the officer was negligent because he offered no explanation for the delayed demand, the trial judge found that the officer was aware of the need to make the demand and that he communicated the essential information (that the appellant was being transported to the detachment for the purpose of providing a breath sample) to the appellant before making the formal Intoxilyzer demand. The trial judge made no finding of negligence. I agree with her conclusion that the first factor weighs in favour of admission of the certificate. I find that the police conduct in this case is towards the less serious end of the continuum discussed in Grant at para. 74.
[42] The second line of inquiry calls for an analysis of the impact of the breach on the Charter protected interests of the accused. The trial judge noted that while there was a delay in the demand for a breath sample being made of the appellant, he understood the demand, and understood the purpose for which he was being transported to the detachment. I am mindful of the fact that the taking of breath sample evidence is a generally less serious intrusion on the bodily integrity and dignity of an accused. The trial judge concluded that this factor weighed in favour of admitting the evidence. I agree.
[43] The third line of inquiry asks whether the administration of justice would be better served by the admission or exclusion of the evidence. The trial judge adverted to this factor and concluded that admissibility was favoured. The appellant acknowledges that the third factor favours admissibility, given the reliability of the evidence and its importance to the Crown’s case. I agree.
[44] A court must then balance the three lines of inquiry under Grant to determine whether the admission of the evidence would bring the administration of justice into disrepute. The trial judge conducted that analysis and concluded that the certificate ought to be admitted. The appellant says that a proper balancing would result in exclusion of the evidence.
[45] It is my view that the trial judge adverted to the appropriate principles and that her decision is entitled to deference. I see no basis upon which to interfere.
CONCLUSION
[46] The appeal is dismissed.
WOOLLCOMBE J.
Released: August 6, 2015
COURT FILE NO.: CR-14-872-00
DATE: 2015 08 06
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MICHAEL PARRIS
REASONS FOR JUDGMENT
Woollcombe J.
Released: August 6, 2015