Court File and Parties

COURT FILE NO.: SCA(P) 979/15 DATE: 2016-04-11

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN Appellant

Sean Doyle, for the Appellant

• and -

PATRICK KELLY Respondent

Douglas Lent, for the Respondent

HEARD: March 4, 2016 at Brampton

REASONS FOR JUDGMENT

[On appeal from the judgment of Justice P.F. Band dated May 8, 2015]

F. Dawson J.

[1] The Crown appeals from the respondent’s acquittal by Justice P.F. Band of the Ontario Court of Justice of the offence of operating a motor vehicle while the concentration of alcohol in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood. The acquittal resulted from the exclusion from evidence of breath test results due to a violation of s. 8 of the Charter.

[2] The appellant contends that the trial judge erred in finding a s. 8 violation or, in the alternative, that the trial judge erred in his s. 24(2) analysis.

[3] If either error is found the appellant agrees the correct disposition is to order a new trial as the respondent advanced other Charter arguments at trial which were not dealt with by the trial judge.

[4] For the reasons that follow I conclude that neither error has been demonstrated and that the appeal should be dismissed.

The Evidence and the Reasons of the Trial Judge

[5] On February 26, 2014 Cst. Edward Nicholson of the Peel Regional Police stopped the appellant for a sobriety check after observing him leaving a licensed restaurant and driving onto the roadway. Cst. Nicholson testified that he could smell alcohol on the respondent’s breath. The respondent admitted consuming three beers. Cst. Nicholson also felt the respondent’s face was flushed and that he exhibited other signs of having consumed alcohol. The officer formed a reasonable suspicion that the respondent had alcohol in his body and made a demand pursuant to s. 254(2) of the Criminal Code that the respondent provide a breath sample for a roadside test by means of an approved screening device (ASD). No issue was taken with the ASD demand.

[6] The respondent provided a sample and registered a fail. Cst. Nicholson testified that he relied upon the respondent’s failure of the ASD test as his reasonable grounds for making a further demand pursuant to s. 254(3) of the Criminal Code that the respondent accompany him and provide breath samples at a police station for Intoxilizer analysis to determine the proportion of alcohol in the respondent’s blood.

[7] The s. 8 Charter issue relates to whether, in the circumstances I will refer to momentarily, there was an evidential foundation upon which the trial judge could conclude that the required subjective and objective reasonable grounds, which are a prerequisite for a valid demand pursuant to s. 254(3) of the Criminal Code, existed. As stated by Hill J. in R v. McCormack, at para. 9:

An aspect of the reasonableness of a seizure by Intoxilyzer testing is the existence of reasonable and probable grounds for the s. 254(3) demand. Where those grounds are dependent, as here, on an ASD test result, the investigating officer must believe, and reasonably so, that the ASD result is a reliable indicator of the motorist’s blood/alcohol level. If the constable doubts the accuracy of the test results, or objectively the circumstances surrounding the taking of the test suggest he or she should hold real reservations as to its accuracy, then the requisite reasonable and probable grounds standard to constitutionally acquire Intoxilyzer testing results is impaired and that warrantless search will offend s. 8 Charter principles.

[8] The s. 8 argument in the present case was raised against a background of the officer being cross-examined on a memorandum from the Ontario Provincial Police (OPP) to its Regional and Detachment Commanders warning of false positive readings for the presence of alcohol sometimes being obtained when using the same model of ASD that Cst. Nicholson used to test the respondent. Crown counsel at trial consented to the memo being filed as an exhibit. The trial judge appended the OPP memorandum to his Reasons for Judgment.

[9] The OPP memo referred to “incorrect results” when officers were performing alcohol free self-tests using the Dräger 6810 ASD. According to the memo, this was happening when the officers had consumed fruit juices, sugary foods or drinks or bread products, or used hand sanitizers shortly before an ASD self-test using that device. The memo instructed that officers should ensure that no test subject had consumed any food or drink for fifteen minutes before a test was commenced.

[10] Cst. Nicholson testified that he had not seen the memo but said that he had seen an OPP manual and had some awareness of these issues. He eventually revealed that he had spoken to a toxicologist at court one day about the issue and that he had sent emails about the issue to the Centre of Forensic Sciences (CFS).

[11] I note that the OPP memo did not link the false positive readings resulting from fruit juices, sugary foods or bread products to the presence of mouth alcohol. However, Cst. Nicholson offered the opinion that the juices mentioned in the memo must have been fermenting to cause a positive result. He at first said he had no information about food or bread affecting ASD results but his evidence evolved as the cross-examination continued. This contributed to the trial judge concluding that the officer had misled the court.

[12] Against this background the s. 8 Charter issue arose from disputed evidence about whether the respondent had put a Halls lozenge in his mouth just before performing the ASD test and about whether Cst. Nicholson was aware of that fact. There was a significant conflict in the evidence about these matters which the trial judge resolved by believing the testimony of the respondent.

[13] At para. 16 of his Reasons for Judgment the trial judge explained why he accepted the respondent’s evidence that: he put the lozenge in his mouth; that the officer asked him what he was doing; that he told the officer he had put a Halls lozenge in his mouth; and that the officer simply proceeded to administer the ASD test.

[14] The trial judge then quoted a passage from Cst. Nicholson’s cross-examination. In that passage Cst. Nicholson testified, amongst other things, that if he had become aware that the respondent had placed a lozenge in his mouth he would have had him spit it out and would then have checked the packaging to see whether the lozenge contained alcohol. He added that if it was a Halls lozenge, he knew they do not contain alcohol. There was no evidence, however, about whether the officer had that knowledge or held that belief at the time of his investigation. During an earlier part of his testimony he said he had a package of Halls in his pocket while testifying and they did not contain alcohol. Of considerable importance, Cst. Nicholson testified in the passage quoted by the trial judge that he would not have proceeded with the ASD test if he knew the respondent had a lozenge in his mouth.

[15] After quoting from the officer’s testimony the trial judge made a number of important findings at paras. 18 to 22 of his Reasons for Judgment as follows:

This portion of PC Nicholson’s evidence raises a number of concerns. First, his position evolved from a lack of recollection about the lozenge issue to a belief that it did not occur and then to a categorical denial.

Second, it was contradictory. On one hand, PC Nicholson would have made Mr. Kelly spit out the lozenge and would have then checked the packaging to determine if it contained alcohol. On the other hand, PC Nicholson denied that he would have had concerns about alcohol content.

Third, it ended with a declaration that any alcohol content would have been of no consequence. This response was in the nature of opinion or advocacy, neither of which PC Nicholson was in a position to provide.

But one thing is clear from PC Nicholson’s evidence: he would not allow a test subject to provide a breath sample with a lozenge in his or her mouth. In my view, the only reasonable inference one can draw from this firm stance is that he would want to assure himself that the lozenge is alcohol-free.

As a result, I find that PC Nicholson could not and would not have reasonably relied on the ASD result. The Crown has not established that the warrantless seizure of Mr. Kelly’s breath sample was authorized by law. If therefore constitutes a violation of his section 8 rights. [Emphasis added.]

[16] Having found a s. 8 Charter violation the trial judge went on to conduct a s. 24(2) analysis and excluded the evidence obtained pursuant to the demand made under s. 254(3) of the Criminal Code. In doing so he placed considerable emphasis on his conclusion that the officer had taken on the role of an advocate and that he had misled the court.

Analysis of the Appellant’s Submissions

[17] The first submission in the appellant’s factum is that the trial judge made three palpable and overriding factual errors in paras. 18 to 22 of his judgment quoted above. The appellant contends these errors undermined both the trial judge’s finding that Cst. Nicholson was not credible and his finding that the respondent in fact put a Halls lozenge in his mouth.

[18] The second submission in the appellant’s factum is that, even accepting the trial judge’s findings of fact, he erred for reasons which I will explain in more detail momentarily.

[19] The third submission is that the trial judge erred in his s. 24(2) analysis.

[20] In oral argument counsel for the appellant advanced the second submission in his factum first, characterizing it as best addressing what is at issue on the appeal. Accordingly, I will deal with that submission first.

[21] The appellant submits that even if the trial judge’s factual findings and assessment of the officer’s credibility are accepted, the trial judge erred because, having found the respondent placed a lozenge in his mouth, he failed “to evaluate the officer’s opinion as to the impact, if any, of the ingestion of a Halls lozenge upon the reliability of the ASD test (subjective component) and then assess the reasonableness of that opinion (the objective component)”: Appellant’s Factum, para. 24. Put slightly differently, the appellant submits that when determining whether there were reasonable grounds to make a s. 254(3) Intoxilyzer demand the trial judge failed to take into account Cst. Nicholson’s evidence that a Halls lozenge would not have impacted the ASD results because such lozenges do not contain alcohol.

[22] I am unable to find that any error has been demonstrated. Three factors, operating together, lead me to my conclusion. The first is that the trial judge rejected most of Cst. Nicholson’s evidence. That included what the officer said about a Halls lozenge not having any effect on the test. The only part of Cst. Nicholson’s evidence the trial judge accepted on the lozenge issue was that he would not have tested the respondent if he had anything in his mouth.

[23] This is not a situation where the trial judge acknowledged or accepted relevant evidence but failed to take it into account. Rather, it is a situation where he considered the evidence relied upon by the Crown and rejected it as not credible. Once the trial judge disbelieved most of Cst. Nicholson’s evidence on the lozenge issue, what was left was insufficient to discharge the Crown’s onus to show that the search was lawful and therefore reasonable. In those circumstances the trial judge was correct to say, as he did at para. 22 of his reasons, that: “The Crown has not established that the warrantless seizure of Mr. Kelly’s breath sample was authorized by law.”

[24] Second, and quite apart from the consequences of the trial judge’s disbelief of much of the officer’s testimony, his finding of fact that Cst. Nicholson administered the ASD test when he knew the respondent had a lozenge in his mouth was a determination that Cst. Nicholson performed that test in circumstances where the officer himself said he would not do so. This is equivalent to Cst. Nicholson saying he would not rely on the test, at least until he had taken other steps. This finding eliminates any possibility that the officer could have formed reasonable grounds based on an ASD test performed in the factual circumstances found by the trial judge.

[25] Third, there was no direct evidence that Cst. Nicholson was aware of or had formed the opinion that Halls lozenges did not contain alcohol prior to his investigation of the respondent. The trial judge was not prepared to draw such an inference on the basis of the evidence that was before him. The trial judge was concerned about this. At the end of the officer’s evidence he asked counsel whether they would object to his asking clarifying questions on this very point. Defence counsel objected and Crown counsel (not counsel on the appeal) acquiesced in that objection. Clearly, the trial judge was not satisfied that the officer had that knowledge or belief about Halls lozenges at the time of the investigation. Again, the onus was on the Crown to prove that the warrantless search was reasonable.

[26] I conclude the appellant’s first argument fails.

[27] The appellant next argues that the trial judge made three palpable and overriding factual errors which undermine his findings of credibility. The appellant describes these errors at para. 22 of its factum. I will deal with each in turn.

[28] First, the appellant submits that Cst. Nicholson’s evidence did not, as the trial judge said it did at para. 18 of his reasons, evolve from a lack of recollection about the lozenge issue, to a belief that it did not occur, to a categorical denial. Specifically, the appellant submits that the officer’s evidence as to a lack of recollection related to whether he had turned around in his police cruiser and asked the respondent what he put into his mouth, while the officer’s categorical denial related to whether the respondent had put a Halls lozenge into his mouth and did not spit it out.

[29] I have reviewed the portion of the transcript relied upon by the appellant and I am not persuaded the trial judge’s characterization of what occurred reflects any error. The question in cross-examination which started this exchange is found in the November 27, 2014 transcript at p. 59 line 24. It was quoted by the trial judge. That question contains suggestions that the officer turned around because the respondent was unwrapping something and putting it into his mouth and that the officer asked the respondent what that item was. It was clear from the question and the context that the focus was on the respondent putting something in his mouth and its potential effect on the administration of the ASD test. It seems to me that the trial judge’s characterization is entirely reasonable, while the distinction the appellant draws between a lack of recollection about turning around in the car and of the respondent putting something in his mouth is strained. I am not persuaded there is any palpable or overriding error.

[30] Next, the appellant submits that the trial judge erred by concluding that the testimony of Cst. Nicholson was contradictory because the officer would have had the respondent spit out the lozenge and then checked the packaging to see if the lozenge contained alcohol, but also testified that he had no concerns as to alcohol content. The appellant submits the officer’s denial of concern was related to Halls lozenges which he believed contained no alcohol. However, as previously mentioned, there was no evidence the officer held that belief at the time of this investigation. The appellant adds that the officer’s statement that he would have had the respondent spit out any lozenge must be considered in the context of his later answer that, “People don’t get tested with items in their mouth.”

[31] Once again, I am not persuaded that there was any error, let alone a palpable error. The appellant’s submission is based on taking parts of Cst. Nicholson’s answers in isolation. The trial judge was evaluating the evidence which was given in a flow. The trial judge quoted all of the relevant evidence. He also saw the witness give the evidence, which is an advantage I do not have. It seems to me to be reasonable to conclude based on the passage quoted as a whole that the officer could be taken to have given contradictory evidence.

[32] Even if this could be viewed as a palpable error I do not believe it can be viewed as an overriding error. It is clear from the trial judge’s reasons as a whole that there were also other reasons why he rejected the officer’s evidence.

[33] Third, the appellant submits that the trial judge erred when, after saying the officer’s evidence ended with a declaration that any alcohol content would have been of no consequence, he characterized that evidence as “in the nature of opinion or advocacy”. The appellant submits that being critical of the officer for providing an opinion reflects error because “the officer was obliged to give his opinion as to the impact of mouth alcohol because it was asserted that he could not reasonably have relied on the result of the ASD test”: Appellant’s Factum, para. 22 (iii). The appellant supports this argument by reference to R. v. Einarson, [2004] O.J. No. 852 (C.A.), at paras. 33-35. That case makes the point that officers are obligated to assess whether mouth alcohol concerns require them to delay ASD testing and that different officers may assess similar circumstances differently and yet both be operating lawfully within the bounds of a s. 254(2) demand. The appellant contends that the officer was required to have an opinion on such matters.

[34] It seems to me that the trial judge was not using the word “opinion” in relation to the officer’s evidence as a reference to the formation of reasonable grounds by the officer. Rather, he was using it in the sense of expert opinion evidence. The use of the word “opinion” is tied together with the trial judge’s use of the word “advocacy”. Fairly read, I conclude that the trial judge was expressing his finding that the officer had become an advocate in the case and had expressed opinions as part of that inappropriate stance which reflected negatively on the credibility and reliability of his evidence. I note that the officer was cross-examined about potential problems with the ASD in relation to the consumption of bread and sugary foods and drinks. He ventured the opinion there would have to be fermentation before that could create a false positive reading for alcohol on the ASD. I am not persuaded that this comment reflects a misunderstanding on the part of the trial judge about whether the officer was required to form an opinion as to whether the ASD would provide a result he could rely upon. This comment by the trial judge was made in the course of assessing the credibility of the officer’s evidence, not in reflecting upon whether the officer had subjective grounds for the s. 254(3) demand.

[35] Looking at all three of these alleged errors together I am not persuaded they reflect palpable and overriding error. The trial judge was explaining his findings of credibility. As has often been said, that is a difficult thing to do. Moreover, the case really turned on whether the respondent had a lozenge in his mouth because the officer said he would not test a subject with something in his mouth. The trial judge accepted that part of the officer’s evidence. The officer’s opinion about whether a delay in testing after someone spit out a lozenge would have yielded a test that he could rely upon did not address that matter.

[36] I would not upset the trial judge’s findings of credibility on this basis.

[37] Turning to alleged errors by the trial judge in his s. 24(2) analysis, the appellant concedes that the trial judge applied the proper test and considered the proper factors. The appellant submits, however, that the trial judge made unreasonable findings of fact in relation to Cst. Nicholson’s evidence and erred in his analysis. The appellant submits that the trial judge was so troubled by Cst. Nicholson’s evidence that he reached unwarranted conclusions in assessing the seriousness of the Charter infringing state conduct and the societal interest in a determination of the case on the merits. These are, of course, the first and third factors described in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. As I understand the appellant’s submissions it relies on the same arguments to establish alleged errors in relation to both the first and third Grant factors.

[38] In its factum the appellant submitted, without raising any particular arguments, that the impact of the s. 8 violation on the respondent’s Charter protected interests was not serious and does not favor exclusion. The second category of Grant factors was not addressed in oral argument. I will say only that I see no error in relation to how the trial judge dealt with the impact of the violation on the Charter protected interests of the accused.

[39] Turning to the first and third set of Grant factors, the appellant repeats its argument that the trial judge made palpable and overriding errors in finding that the officer’s evidence was argumentative, contradictory and in the nature of advocacy. Those arguments are extended to include some additional features the trial judge relied upon in his s. 24(2) analysis. I would reject these submissions for the reasons previously given.

[40] The appellant also submits that the trial judge erred in relation to the impact of the OPP memorandum regarding the potential for false ASD readings. It is submitted that the trial judge failed to appreciate that the contents of the memo were hearsay.

[41] I see no error in this regard. The memo was admitted as an exhibit on the basis that it was an authentic document which had been circulated by the OPP. The issuance of the memo demonstrated that the OPP had some concerns. The memo was not tendered to prove that the ASD used in this case was not a reliable instrument and I do not see any indication that the trial judge used it in that way. It made sense to file it as an exhibit to keep track of it because extensive reference was made to it. It was used by counsel as a tool in cross-examination.

[42] While Cst. Nicholson had not previously seen the document and did not agree with it or adopt it, his cross-examination about its contents led to his revealing, by degrees, that he had more knowledge about the reliability issues discussed in the memo than he originally acknowledged. As the trial judge pointed out, the officer’s evidence evolved. It evolved in such a way that the trial judge came to the conclusion that the officer was not being candid and was in fact misleading the court. That is the manner in which the trial judge used the memo. It was the variation in the officer’s evidence as the cross-examination went on that was significant to the trial judge’s determination that the officer was misleading the court and it was that finding which had significant impact on the trial judge’s s. 24(2) Charter analysis in relation to both the second and third Grant factors. There was no violation of the rule against hearsay.

[43] Pursuant to R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, in assessing the seriousness of the Charter- infringing state conduct the trial judge was entitled to consider that the officer’s testimony was misleading. As explained in Harrison, at para. 26, while such conduct is not part of the breach, misleading testimony in relation to an alleged Charter violation directly impacts the integrity of the administration of justice and the truth seeking function of the court. The court may need to dissociate itself from such behavior. That is clearly what the trial judge concluded he had to do in this case. Based on his findings of fact that conclusion was reasonable and I am unable to accept the appellant’s submission that the trial judge committed the error alleged.

[44] The appellant does not submit that the trial judge made any error in relation to the third Grant factor beyond those already referred to. In other words, the appellant confines its submissions with respect to society’s interest in a trial on the merits to the same factual errors and the alleged misuse of the OPP memorandum that I have already dealt with and submits they impact the s. 24(2) analysis at the third as well as the first factor. It follows from the foregoing that I would not give effect to this argument.

[45] I would add that during oral argument the appellant conceded that if the trial judge had found the officer was untruthful in his evidence that alone could justify exclusion of the evidence. In the circumstances of this case I can see no difference between the trial judge’s conclusion that the officer misled the court and a finding that he was untruthful. The trial judge accepted the respondent’s evidence that he told the officer he had put a Halls lozenge in his mouth and rejected the officer’s evidence to the contrary. He found that the officer changed his evidence on a number of points in a manner which led to the conclusion that his earlier testimony was misleading. As I have already said those were reasonable findings supported by the evidence.

[46] The appeal is dismissed.

F. Dawson J.

Released: April 11, 2016