COURT FILE NO.: 117/15 DATE: 2016-05-11

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Appellant – and – ERIC CHIASSON Respondent

John Dibski, for the Crown, Appellant Stephen Price, for the Respondent

HEARD: May 11, 2016

REASONS FOR JUDGMENT

Gray j.

1This is an appeal by the Crown from the acquittal of the respondent on July 29, 2015, by Justice Cooper. The appellant was charged with impaired driving and “over 80”. The impaired driving charge was not pursued by the Crown.

2For the reasons that follow, the appeal is allowed and a new trial is ordered.

Background

Background

3On June 28, 2013, the Ontario Provincial Police had set up a RIDE program at the Brant Street exit from the Queen Elizabeth Way. At 12:30 a.m., the respondent, in a red Jeep, came on to the ramp towards the QEW, saw the RIDE setup, reversed and managed to get back onto the QEW. He then proceeded west on to Highway 403 and drove towards Hamilton.

4The respondent was pursued by two officers in separate cruisers and was stopped. Nothing was noticed about his driving, and his physical coordination was fine.

5The respondent told one of the officers that he had had a couple of drinks. One of the officers noticed that the respondent was slurring his words, and he smelled a strong odour of alcohol coming from the respondent’s breath.

6The other officer, Officer Sobh, who turned out to be the investigating officer, stated that when the respondent put his Jeep in reverse, there were no other vehicles behind him. Officer Sobh testified that Mr. Chiasson had the smell of alcohol on his breath. He said he had consumed three beers, and was going to a friend’s house. His speech was slurred.

7Officer Sobh testified that at 1:15 a.m., he formed the opinion that the ability of the respondent to drive a motor vehicle was impaired by the consumption of alcohol. He had a screening device with him but saw no need to use it. The respondent was arrested. He was taken to the station where breath samples were taken and analyzed.

8In cross-examination, Officer Sobh testified that the respondent’s speech was slurred during the entire time he was speaking to him, and was still like that at the police station.

9Officer Fletcher, the qualified breath technician, said the respondent’s eyes were slightly blood-shot and he smelled of alcohol. Officer Fletcher testified that the respondent’s speech was not slurred.

10The breath testing resulting in blood alcohol readings of 140 and 150 mg of alcohol in one hundred millilitres of blood.

11Officer Fletcher, on cross-examination, agreed that the breath room video did not show any slurring of words.

12The appellant testified that he stopped on the ramp and reversed back on to the highway because he was 21 years old at the time and his driver’s licence restricted him from drinking any amount of alcohol. He denied having slurred speech. He acknowledged that he had consumed six beers, and lied to Officer Sobh when he had said he had drunk only three beers.

13Greg McManus, a friend of the respondent, said he was familiar with the respondent’s speech patterns, and after watching the breath room video he could detect no slurring.

14In his reasons for judgment, the trial judge ruled that the police did not have reasonable and probable grounds to arrest the respondent, or to make a demand for breath samples. Accordingly, the breath samples were unlawfully obtained, contrary to s. 8 of the Canadian Charter of Rights and Freedoms. The trial judge then considered whether the evidence should be admitted pursuant to s. 24(2) of the Charter. The trial judge ruled that to admit the breath readings into evidence would bring the administration of justice into disrepute.

Submissions

Submissions

15Mr. Dibski, counsel for the Crown, argues that the reasons of the trial judge reflect an error in law. Mr. Dibski submits that the facts were largely not in dispute, and on the findings of the trial judge, it is clear that there were reasonable and probable grounds to both arrest the respondent and demand that breath samples be taken from him. Since the results of the breath analysis were not challenged, Mr. Dibski submits that the appeal should be allowed and a conviction entered.

16Mr. Dibski relies on R. v. Bernshaw, [1995] 1 S.C.R. 254; R. v. M.A.L., [2003] O.J. No. 1050 (C.A.); R. v. Reynolds, [2001] O.J. No. 3252 (S.C.J.); R. v. Gunn (2012), 2012 SKCA 80, 291 C.C.C. (3d) 265 (Sask. C.A.); R. v. Esquega, [2009] O.J. No. 4203 (S.C.J.); R. v. Elvikis, [1997] O.J. No. 234 (Gen. Div.); R. v. Rehill, 2015 ONSC 6025, [2015] O.J. No. 5068 (S.C.J.); R. v. Hamzehi, 2015 ONCJ 95, [2015] O.J. No. 907 (O.C.J.); R. v. Gill, [2015] O.J. No. 6787 (S.C.J.); R. v. Williams, 2013 ONCA 772; R. v. Bush (2010), 2010 ONCA 554, 101 O.R. (3d) 641 (C.A.); R. v. Costello, [2002] O.J. No. 93 (C.A.); and R. v. Darteh, 2016 ONCA 141.

17Mr. Price, counsel for the respondent, submits that the appeal should be dismissed. In the alternative, if the appeal is allowed, a new trial should be ordered.

18Mr. Price submits that the trial judge was correct in holding that there were no reasonable and probable grounds to arrest the respondent or demand that breath samples be given. Accordingly, the trial judge properly held that the breath samples were taken in violation of s. 8 of the Charter. Further, the trial judge’s analysis under s. 24(2) of the Charter should not be disturbed.

19Mr. Price notes that there was no clear finding of fact that the respondent’s speech was slurred. Without such a clear finding of fact, it could not be concluded that there were reasonable and probable grounds for the taking of breath samples. The remaining indicia of impairment would not be enough.

20Accordingly, Mr. Price submits that the Crown, appellant, has not satisfied its onus to show that the trial judge’s holding that there were no reasonable and probable grounds to demand breath samples should be disturbed.

21Mr. Price relies on R. v. Bush, supra; R. v. Austin, [2009] O.J. No. 4122 (S.C.J.); R. v. McMeekin, [2014] O.J. No. 1062 (O.C.J.); R. v. Censoni, [2001] O.J. No. 5189 (S.C.J.); R. v. Cooper, [1993] O.J. No. 501 (O.C.J.); R. v. Au-Yeung, 2010 ONSC 2292, [2010] O.J. No. 1579 (S.C.J.); R. v. Dignum, [2012] O.J. No. 5074 (O.C.J.); aff’d (unreported) September 20, 2013; leave to extend time to appeal dismissed, unreported, dated November 19, 2013; and R. v. Rehill, supra.

Analysis

Analysis

22The issue of whether reasonable and probable grounds exist, for either an arrest or the making of a demand to furnish breath samples, has both a subjective and an objective component. The police officer must have a subjective belief that grounds exist, and the belief must be objectively reasonable.

23The issue of whether the objective component has been satisfied, based on a given set of facts, raises an issue of law. At para. 5 of the Court of Appeal’s endorsement in R. v. M.A.L, supra, the Court stated:

The determination of whether the police had proper grounds to arrest the respondent requires the application of a legal standard to a given set of facts. We accept the findings of fact made by the trial judge. Indeed, most of the facts were not in dispute. The trial judge’s determination that those facts did not, when viewed objectively, provide reasonable grounds for the arrest of the respondent raises a question of law alone: R v. Storrey, [1990] 1 S.C.R. 241, 53 C.C.C. (3d) 316 (S.C.C.). That decision must be reviewed on a correctness standard.

[Emphasis added]

24The trial judge’s conclusions, in their entirety, as to the issue of whether reasonable and probably grounds existed, are as follows:

14 Officer Sobh relied upon the odour of alcohol, the admission of consumption, the slurred speech, and the reverse exit from the RIDE setup to justify his arrest of the defendants for impaired driving. In light of the explanation offered by the defendant in his testimony, I cannot agree with officer Sobh that the exit was proof in itself of impairment. The reason for leaving the scene was to evade legal responsibility.

15 The slurred speech is not conclusive of impairment. The officers did not previously know the defendant, and were not familiar with his speech patterns. Also, officer Fletcher, the breath technician did not observe any slurred speech nor did the breath room video reveal any.

16 I accept the evidence of Greg McManus, the defence witness, who testified that if one didn’t know Mr. Chiasson, one might think his speech was slurred.

17 In summary, I find that although Officer Sobh may have had a subjective basis to think the defendant was impaired, there was no objective basis upon which to make this conclusion. Therefore, there were no reasonable and probable grounds to arrest the defendant and section 8 of the Charter has been breached.

25It is clear, in my view, that the trial judge considered the following facts in deciding whether reasonable and probable grounds existed:

a) The odour of alcohol;

b) The admission that alcohol had been consumed;

c) The slurred speech;

d) The reverse exit up the ramp from the RIDE setup.

26In my view, if all those facts had been proven to the satisfaction of the trial judge, there were clearly reasonable and probable grounds for the arrest and the demand for breath samples. However, it is also clear that the trial judge did not clearly make a finding that the respondent’s speech was slurred.

27The trial judge referred to evidence that may have suggested that the respondent’s speech was not slurred. For example, the evidence of the breath technician was to the effect that the respondent’s speech was not slurred. The breath room video did not appear to show any slurring of speech. Mr. McManus testified that, having viewed the video, there was no slurring of speech.

28This evidence, if accepted by the trial judge, may have persuaded him that the evidence of Officer Sobh, to the effect that the respondent’s speech was slurred, should be discounted. However, the trial judge made no such finding. At the end of the day, he made no finding one way or the other as to whether the respondent’s speech was slurred.

29That being the case, I cannot say with certainty that a finding of reasonable and probable grounds would have been required without an express finding of whether the respondent’s breath was slurred.

30In these circumstances, I see no alternative but to order a new trial.

Disposition

Disposition

31For the foregoing reasons, the appeal is allowed. The acquittal is set aside, and a new trial is ordered on the “over 80” charge.

Gray J.