R. v Leonard Notaro, 2016 ONSC 4115

Court File and Parties

COURT FILE NO.: CR-14-02325-00AP DATE: 20160621 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – LEONARD NOTARO Appellant

Counsel: Bradley Juriansz, for the Respondent/Crown Peter Lindsay, for the Appellant

HEARD: April 8, 2016

RULING ON APPEAL

MULLINS J.:

Introduction

1Mr. Notaro appeals from his conviction following a trial on January 19, 2015, for driving with more than the legal concentration of alcohol in his blood, contrary to s. 253(1)(b) of the Criminal Code. He submits that the trial judge erred in law by dismissing an application pursuant to the Charter to exclude breath test results. The application was based on the arresting officer’s alleged failure to consider ‘the issue of fresh mouth alcohol’ prior to administering a roadside screening device.

Brief Overview of the Evidence

2The arresting officer noticed an immediate and strong smell of alcohol when the driver’s window was rolled down after she stopped the appellant on the 15th of March 2014. Mr. Notaro indicated to her that he had just left an establishment called ‘Aw Shucks’. The officer had some knowledge of its proximity. She asked the appellant if he had been drinking and he admitted he had. He told her he had just left the bar. She made a demand that a sufficient breath sample be given to administer a roadside screening device. Mr. Notaro indicated he had a couple of drinks at the bar. The officer didn’t ask about the timing of his last drink.

3The officer knew from her training that the accuracy of the results obtained following the administration of a roadside screening device could be affected by mouth alcohol. She acknowledged that where there was any concern as to recent consumption, an officer is supposed to wait at least 15 minutes before administering a test. She agreed that it might take as little as two to three minutes for someone departing Aw Shucks to have arrived at the place where she had encountered Mr. Notaro’s vehicle. It would be prudent, she agreed under cross examination, to have checked to see if the driver had recently had something to drink. As to why she did not do so, she stated it did not cross her mind. As she had no notes of it, she could offer no reason why.

The Trial Judge’s Reasons

4In giving his reasons following trial, the judge considered the one issue that was being advanced on behalf of the appellant regarding s. 8 of the Charter: whether the police officer ought to have waited the recommended 15 minutes from the time she suspected the accused had had his last drink to the time the sample was taken. The trial judge addressed himself to the reasoning expressed in R. v. Einarson, 70 O.R. (3d) 286 and R. v. Mastromartino, 70 O.R. (3d) 540. The principles he derived from these decisions included:

1. An investigating officer is not required to wait before administering an approved screening device in every case where there is a suspicion that the driver may have been in a bar shortly before being stopped.
2. The mere possibility that a driver has consumed alcohol within the last 15 minutes does not preclude an officer from relying on the accuracy of an approved screening device.
3. The issue is to be determined on a case by case basis.

5Here, the trial judge reasoned, the officer knew that the accused was likely within a two or three minute drive from the bar he had just left, but the officer did not know exactly when he had left or when he had last had a drink before he left. The appellant had not volunteered any information about this and the officer did not ask.

6The trial judge considered that the officer’s evidence that it did not cross her mind and it would have been prudent for her to ask were not determinative, as there were no circumstances that should have caused her to be concerned or to compel a delay. The trial judge determined that the officer need not have asked more questions and dismissed the application that had been made under s. 8 of the Charter (the Grant analysis was not seriously challenged on this appeal).

Standard of Review on Appeal

7The leading case in determining the standard of review on appeal is Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. The standard turns on whether the issues are questions of law, or fact, or mixed fact and law.

8In Housen v. Nikolaisen, the Court stated, at para. 8:

On a pure question of law, the basic rule with respect to the review of a trial judge's findings is that an appellate court is free to replace the opinion of the trial judge with its own. Thus the standard of review on a question of law is that of correctness. [Citations omitted.]

9The court goes on to address the standard of review for questions of fact, beginning at para. 10, where it states:

The standard of review for findings of fact is that such findings are not to be reversed unless it can be established that the trial judge made a "palpable and overriding error". [Citations omitted.]

10This standard applies, too, to inferences of fact. The reviewing court must determine that the trial judge made a palpable and overriding error in coming to a conclusion based on accepted facts in order to justify appellate intervention. Where evidence exists to support the inference, an appellate court will be hard pressed to find a palpable and overriding error. As the Supreme Court stated in Nikolaisen, “The appellate court is not free to interfere with a factual conclusion that it disagrees with where such disagreement stems from a difference of opinion over the weight to be assigned to the underlying facts” (see paras. 22-23).

11The court also addressed the standard of review for questions of mixed fact and law. It first distinguishes between questions of mixed fact and law and factual findings, stating at para. 26:

Questions of mixed fact and law involve applying a legal standard to a set of facts: Canada (Director of Investigation & Research) v. Southam Inc., [1997] 1 S.C.R. 748 (S.C.C.), at para. 35. On the other hand, factual findings or inferences require making a conclusion of fact based on a set of facts. Both mixed fact and law and fact findings often involve drawing inferences; the difference lies in whether the inference drawn is legal or factual.

12The court goes on:

Matters of mixed fact and law lie along a spectrum. Where, for instance, an error with respect to a finding of negligence can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle, such an error can be characterized as an error of law, subject to a standard of correctness. […] Where the legal principle is not readily extricable, then the matter is one of "mixed law and fact" and is subject to a more stringent standard. The general rule, as stated in Jaegli Enterprises, supra, is that, where the issue on appeal involves the trial judge's interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error (para. 36).

13The issue of whether the officer addressed her mind to whether or not she would obtain a reliable reading by administering the test without a brief delay is a question of fact. The trial judge’s findings are based on the testimony of the officer at trial. No legal principles were engaged in making such a finding.

14The larger conclusion of whether or not it was reasonable for the officer to rely on the roadside screening device is a finding of mixed fact and law. The Crown submits that this is a question of law, subject to a correctness standard. With respect, this is incorrect. The issue requires that the trial judge apply the legal standard of reasonableness to the facts as found. There is no extricable error of law that would call for a standard of review of correctness.

15I conclude, therefore, that the standard of review for the issues on appeal is that of palpable and overriding error.

Positions of the Parties

The Appellant

16Since the breath sample was demanded and taken without a warrant, the Crown bears the burden of showing compliance with the principles governing roadside tests and fresh mouth alcohol, as set out in R. v. Mastromartino.

17The Crown failed to discharge its burden of proof regarding the first Mastromartino principle: that the officer addressed her mind to whether she would obtain a reliable reading by administering the test without a brief delay. There is no evidentiary basis upon which the trial judge could find that the officer considered whether the test results would be reliable. In support of this submission, the appellant makes three points:

(1) the officer admitted it would have been prudent to ask about the timing of Mr. Notaro’s last drink; (2) she did not ask about the timing of his last drink; and (3) she could not explain why she did not do so.

18The trial judge’s determination that there was nothing on the evidence that should have alerted the officer’s concern that morning or compelled a delay or any further questioning was based on the wrong question. The right question was whether the officer honestly and reasonably believed that she could rely on the test result if the sample was taken without delay; a question the officer did not consider.

19The appellant submits that on these grounds, the trial judge ought to have found a breach of Mr. Notaro’s s. 8 Charter rights and excluded the evidence under s. 24(2), as the Grant criteria favour exclusion of the evidence.

The Crown

20The issue advanced on appeal is different from that argued at trial. At trial, defence counsel argued that the officer should have chosen to delay the roadside test. Her failure to delay the test made her reliance on it unreasonable. Generally, appellate courts should not entertain arguments not advanced at trial. However, there is discretion to do so where the evidentiary record is sufficient to deal with the matter fully, effectively, and fairly on appeal.

21The trial judge’s reasons, when read as a whole, make it clear that he accepted that the officer was aware of the mouth alcohol issue. The evidence in support of this includes that:

(1) the officer had received training on the screening device and was aware that the accuracy of the device can be affected by the presence of mouth alcohol; and (2) she testified that she was aware that the administration of the test should be delayed 15 minutes if there is a concern [emphasis in original] as to the recent consumption of alcohol.

22Implicit in his reasons, the trial judge accepted the officer’s evidence, wherein he observed that there is nothing on the evidence that should have alerted the officer’s concern that morning or compelled a delay or any further questioning. This would not make sense if the trial judge were speaking of an officer who was not aware of the issue.

23The appellant’s suggestion that the officer ‘specifically admitted that the issue of last drink did not cross her mind’ is inconsistent with the evidence. The context of the line of questioning in which this statement arose deserves consideration. The issue that did not cross her mind was to ask the appellant about his last drink. This supports a finding that the officer did not ask because she did not have any concerns about mouth alcohol; a finding implicit in the trial judge’s reasons.

24The trial judge was correct to find that the officer’s reliance on the roadside screening device’s result, in the circumstances of the case, was reasonable. Officers are entitled to rely on fail results unless there is credible evidence that the result is unreliable. Moreover, officers do not have a duty to inquire as to the suspect’s last drink. Delay due to concerns about mouth alcohol is exceptional and there must be grounds to believe such a delay is necessary; speculation that there may be a mouth alcohol issue does not suffice.

25The Grant factors favour admission of the evidence, in the event that this court finds there was a breach of Mr. Notaro’s s. 8 rights.

Analysis

26The overarching issue for this court to consider is whether the trial judge made a “palpable and overriding error” in his assessment of the evidence relating to the ‘mouth alcohol issue’.

27The Crown is correct to point out that certain of the issues on appeal were not raised at trial.

28The contention in support of the Charter application at trial was that the officer’s decision not to delay the administration of the test made her reliance on the results unreasonable. Much of defence counsel’s cross-examination of the officer at trial related her failure to ask the driver when his last drink was. As the Crown points out, the officer’s awareness of ‘the issue of mouth alcohol’ is distinct from whether or not the officer’s decision to administer the test without delay made her reliance on it unreasonable.

29The evidence at trial and the trial judge’s reasons address this issue by inference, as the Crown also submits. It is open to this court to exercise its discretion and address the issue on appeal.

30Defence counsel offered no written no argument regarding the standard of review; the factum essentially asks that this court reweigh the evidence. In oral submissions, the appellant accepted the Crown’s position on the standard of review.

31As the Crown points out, the officer testified that she had received training on how to use the device and that she was aware that mouth alcohol could cause the device to give an inaccurate reading. She also testified that she was aware that administration of the test should be delayed where there is a concern about mouth alcohol. The trial judge found that the evidence raised no concern that would compel a delay. As the Crown correctly submits, this may be taken to imply that the trial judge considered that the officer was aware of the issue of mouth alcohol, and in the circumstances, there was no reason for her to have pursued the issue by questioning the appellant as to when he had his last drink.

32The appellant’s arguments relating to the officer’s admission that it would have been prudent for her to ask about the last drink take that evidence out of context. As discussed above, the issue of whether she turned her mind to mouth alcohol is a separate issue from whether she should have asked about his last drink in the circumstances as they presented themselves. This latter issue is what defence counsel sought to demonstrate at trial and it was in that context that she made those statements. She did not provide a reason for failing to ask about the timing of the last drink. The trial judge found that there were no circumstances indicating that she should have asked. This particular evidence is of little assistance in determining whether she addressed her mind to the issue of mouth alcohol. As the Crown points out, the fact that she did not consider it necessary to ask about the timing of the consumption supports the finding that she had perceived no reason to be concerned about ‘the mouth alcohol issue’. It was open to the trial judge to make this finding on the evidence and that finding is entitled to deference by this court.

33Likewise, it was open to the trial judge to infer from the officer’s testimony that a possible reason that she did not ask about when the driver had last had a drink was that she was unaware of the exact distance from the bar to the stop site. She stated that the bar had moved and she was not sure where it was located at that time. This inference, too, is supported by her evidence, and is entitled to deference.

34The overarching question as framed in the factum is indeed a somewhat different question than the one argued at trial. The trial judge’s failure to explicitly address the question as reframed in the appeal ought not to be taken as an error. His reasons demonstrate that he implicitly considered the officer to have turned her mind to the fact that the presence of mouth alcohol may render a roadside screening result inaccurate. He also determined that there were no circumstances present that would have made her decision to administer the test without delay an unreasonable one. His findings are to be reviewed on a standard of palpable and overriding error. They were supported by the relevant case law and the evidence at trial. As such, there is no basis for this court to interfere in his determinations. The appeal is, therefore, dismissed.