CITATION: Her Majesty the Queen v. Hull, 2016 ONSC 2267
COURT FILE NO.: 14-9739
DATE: 2016/04/04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
MICHAEL HULL
Appellant
Stephen Donoghue, for the Respondent/Crown
Michael Davies, for the Appellant
HEARD: March 2, 2016
Summary conviction appeal
on appeal from of the decision of justice M. Hoffman of the Ontario court of justice at ottawa dated January 29, 2015.
MARANGER J.
[1] This is an appeal from a conviction for failing to comply with a breath demand, contrary to s. 254(5) of the Criminal Code, R.S.C. 1985, c. C-46, by Justice M. Hoffman of the Ontario Court of Justice registered on January 29, 2015.
[2] At the hearing the appellant advanced a single ground of appeal. The appellant submits that the learned Justice failed to give adequate reasons for his determination that the breath demand was lawful.
Evidence at trial:
[3] Constable Christopher Morris, Constable Kevin Benloss, and the self-represented accused Michael Hull testified at the trial of this matter. I would summarize the evidence as follows:
Constable Morris:
• He was the arresting officer. He testified that he responded to a radio call at 5:03 a.m. about a noise complaint (loud music coming from a vehicle) at a private residence in Ottawa. Upon arriving he noticed a truck parked on a slight angle in the driveway of a residence. The music was loud enough that he could hear it from the street in his car.
• As he approached the vehicle on foot, he saw a van correctly parked in the same driveway to the right. He saw one set of tire marks in the snow in the driveway next to the van that went from side to side, as if the van had been bumped to the right, and a second set of tire marks that seemed to correspond with the pickup truck making a left turn into the driveway. He also observed minor scuffs on the side of the van. It appeared to him that the pickup truck and made a left turn into the driveway and made slight contact with the van pushing it to the right. He, however, noted no damage on the truck.
• From the driver side he saw the appellant sleeping in the passenger seat, his back and head against the passenger door, his bottom in the passenger seat, his legs over the middle console and his feet on the driver’s seat. The driver’s window was open and the passenger window was closed. The vehicle was running and music was playing. The appellant was sleeping. Constable Morris did not perceive him to be a risk to the public.
• He asked him if he lived at this address. The appellant indicated “yes”. Constable Morris noted an odour of alcohol on his breath and asked why he had crashed into the van. He smiled and responded that he did not. Constable Morris noted that the appellant was speaking slowly. His words were slurred and he was stuttering. The officer formed the opinion that he had been drinking: when asked, the appellant responded “a little”. The constable at this point formed a suspicion that the appellant was impaired by alcohol.
• Constable Morris then asked the appellant to exit the vehicle. He put his shoes on and exited the driver side. When he closed the truck door he fell backwards toward the front of the truck. He was asked for identification. The officer indicated that the appellant had difficulty finding his driver’s license and when it was pointed out to him among other business cards, he responded “here you do it then”.
• The officer then testified that he formed reasonable grounds to believe that the appellant was impaired by alcohol and that he was in care and control of the vehicle. No evidence was given as to whether he believed the appellant had been driving the truck within the preceding three hours.
• Constable Morris then arrested the appellant, provided him with his rights to counsel and read the breath demand from his notebook. Once at the police station, Constable Morris provided the breathalyzer technician with his grounds for the arrest and for the breath demand.
Constable Benloss:
• He was a qualified technician who dealt with the appellant. He obtained the grounds to take samples of the appellant’s breath from Constable Morris. He also provided the appellant with his right to counsel, a secondary caution, and a breathalyzer demand.
• He testified that the breathalyzer makes a continuous sound when sufficient air pressure is going through the instrument. To provide a proper breath sample, the tone on the breathalyser must be activated for 4.5 seconds. In the appellant’s case, he was only able to activate the tone for 1 to 2 seconds; therefor, he did not blow for long enough to provide a sufficient sample. He tried 10 times, but failed to provide a proper breath sample.
Michael Hull:
• He represented himself at trial. He said he was in his truck at that time of night because of an argument he had with his wife over playing loud music in their home. He had consumed 2 litres of beer between 11 p.m. and 1 a.m.. He testified that he got into his truck from the driver’s side. He started the vehicle and stretched across the passenger seat. He kicked off his shoes, turned on the heated seats and lowered the driver-side window. He fell asleep.
• When he was awoken by the police officer he was flustered, surprised and confused, which was why he had difficulty finding his driver’s license.
• He demonstrated through the use of photographs and the owner’s manual for the truck that it would not be possible to somehow accidentally put the vehicle in gear.
• He further testified that he was recovering from bronchitis on February 7, 2014 and that he had only 37% lung capacity. He filed evidence to show that he was using a puffer and was on antibiotics. He further indicated that after the fourth attempt he advised the breath technician that “I don’t think I can do it because I’ve got bronchitis”. He tried a further six times but failed to provide a proper sample.
[4] On January 29, 2015 Justice Hoffman delivered oral reasons for his decision the appellant was found not guilty of impaired driving, but guilty of refusing to provide a breath sample.
The Offence of Failing to Provide a Breath Sample:
[5] In order to obtain a conviction on a charge of failing to provide a breath sample, the Crown must prove beyond a reasonable doubt that the demand was lawful. If the Crown does not prove the lawfulness of the demand, the accused is to be acquitted. See R. v. Porter, 2012 ONSC 3504, at para. 30.
[6] A breath demand will be lawful and valid only when the officer has reasonable and probable grounds to believe that the accused either is committing, or has committed within the previous three hours, the offence of impaired driving. The officer must have the subjective belief that that is the case, and the belief must be objectively reasonable. See R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641, at paras. 36-38.
[7] Whether reasonable and probable grounds exist is a question of law; however, the determination of this question is a fact-based exercise dependent upon all the circumstances of the case. See Bush, para 54; R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20.
Sufficiency of reasons:
[8] In this particular case the learned trial judge’s reasons simply indicate that: “the evidence clearly establishes, and it was not contested, that the breath demand was lawful and valid”. There is no analysis or findings of fact regarding Constable Morris’s grounds for making the demand. There is no assessment as to whether the grounds were objectively reasonable or whether the demand was lawful.
[9] In R. v. Sheppard, 2002 SCC 26, [2002] 1 SCR 869, the Supreme Court of Canada set out the governing principals relating to the sufficiency of reasons and appellate review. The following excerpts authored by Justice Binnie in Sheppard are applicable to the case at hand:
24 In my opinion, the requirement of reasons is tied to their purpose and the purpose varies with the context. At the trial level, the reasons justify and explain the result. The losing party knows why he or she has lost. Informed consideration can be given to the grounds for appeal. Interested members of the public can satisfy themselves that justice has been done, or not, as the case may be.
46 These cases make it clear, I think, that the duty to give reasons, where it exists, arises out of the circumstances of a particular case. Where it is plain from the record why an accused has been convicted or acquitted, and the absence or inadequacy of reasons provides no significant impediment to the exercise of the right of appeal, the appeal court will not on that account intervene. On the other hand, where the path taken by the trial judge through confused or conflicting evidence is not at all apparent, or there are difficult issues of law that need to be confronted but which the trial judge has circumnavigated without explanation, or where (as here) there are conflicting theories for why the trial judge might have decided as he or she did, at least some of which could clearly constitute reversible error, the appeal court may in some cases consider itself unable to give effect to the statutory right of appeal. In such a case, one or other of the parties may question the correctness of the result, but will wrongly have been deprived by the absence or inadequacy of reasons of the opportunity to have the trial verdict properly scrutinized on appeal. In such a case, even if the record discloses evidence that on one view could support a reasonable verdict, the deficiencies in the reasons may amount to an error of law and justify appellate intervention. It will be for the appeal court to determine whether, in a particular case, the deficiency in the reasons precludes it from properly carrying out its appellate function. [emphasis in original]
[10] This matter concerned a case of a self-represented accused. In the specific circumstances of this case I find that the trial judge should have provided clear reasons as to why he was satisfied beyond a reasonable doubt that the officer in question had reasonable and probable grounds to demand a breath sample. An analysis of the evidence as to why on a subjective and objective basis the officer had reasonable and probable grounds to make the breath demand was required in this case. The reasons simply conclude that the evidence clearly established that the breath demand was lawful and valid without an explanation as to why the evidence established that essential element.
[11] Therefore, the conviction is quashed and a new trial is ordered.
Maranger J.
Released: April 4, 2016
CITATION: Her Majesty the Queen v. Hull, 2016 ONSC 2267
COURT FILE NO.: 14-9739
DATE: 2016/04/04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
Michael Hull
Appellant
summary conviction appeal
Maranger J.
Released: April 4, 2016