CITATION: R. v. Acquah, 2016 ONSC 597
COURT FILE NO.: 8/15
DATE: 20160125
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Her Majesty the Queen v. Kwasi Acquah
BEFORE: K.L. Campbell J.
COUNSEL: Megan Petrie, for the Crown, respondent
Dean F. Embry, for the accused, appellant
HEARD: December 15, 2015
REASONS FOR DECISION
[Summary Conviction Appeal]
A. Overview
[1] The appellant, Kwasi Acquah, was tried by the Honourable Mr. Justice L. Budzinski of the Ontario Court of Justice on charges of impaired driving and driving with a blood-alcohol level in excess of .80 mgs in 100 mls. of blood. The offences were alleged to have taken place in Toronto at approximately 3:00 a.m. on November 17, 2013. The appellant ultimately provided two breath samples into an approved instrument, which showed that he had 110 and 100 mgs. of alcohol in 100 mls. of blood at 4:28 a.m. and 4:52 a.m. respectively.
[2] The trial, which took place on January 5, 2015, was a focused one. The appellant brought an application to exclude the results of his breath samples on the basis that he had been arbitrarily detained and subjected to an unreasonable search and seizure contrary to ss. 8 and 9 of the Canadian Charter of Rights and Freedoms. Essentially, the appellant alleged that the arresting police officers acted without the necessary reasonable grounds to arrest him and demand samples of his breath. Indeed, defence counsel argued that the video recording of the roadside interaction between the appellant and the police, taken from the in-car camera in the police cruiser, was inconsistent with much of the testimony of the police officers as to their alleged actions and observations of the appellant. The parties agreed, however, that if the results were admissible, either because there was no Charter violation or because the evidence was admissible under s. 24(2) of the Charter, the appellant was guilty of impaired driving. The only evidence heard by the trial judge was the testimony of the two arresting police officers.
[3] After hearing the evidence of the two police officers, and hearing the submissions of counsel, the trial judge delivered oral reasons for judgment dismissing the Charter application brought by the appellant. Essentially, the trial judge concluded that the arresting officers had the necessary reasonable grounds to arrest the appellant and demand that he provide breath samples suitable for analysis.
[4] In the result, with the agreement of the parties, the appellant was convicted of the “impaired driving” offence, while the proceedings in relation to the “over 80” offence were conditionally stayed. The appellant was sentenced to a fine of $1,000 (and a victim surcharge), given time to pay, and placed on probation for a period of three months.
[5] The appellant now appeals against his conviction. He argues that the trial judge erred in dismissing his Charter application. The appellant contends that the evidence accepted by the trial judge did not establish that the investigating police officers possessed the necessary reasonable grounds to arrest him and demand samples of his breath. The appellant argues that the resulting violation of his constitutional rights under ss. 8 and 9 of the Charter ought to have resulted in the exclusion of the analysis of his breath samples. He seeks an order for a new trial.
B. Analysis
1. The Standard of Appellate Review
[6] Whether there are the required reasonable grounds in any particular case is largely a fact-driven exercise dependent on all the circumstances of the case. In drawing any conclusion in relation to the issue, the totality of the circumstances must be taken into account. Therefore, on any appeal challenging the conclusion reached by the trial judge, the appellate court must approach a trial judge’s findings of fact with deference. That said, where appellate courts are called on to review a trial judge’s conclusion as to whether a police officer objectively had the necessary reasonable grounds to effect an arrest or make a breath demand, that decision is reviewable on a standard of correctness, as it is effectively a conclusion on a question of law. See R. v. Wang, 2010 ONCA 435, 256 C.C.C. (3d) 225, at para. 18; R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20; R. v. Rhyason, 2007 SCC 39, [2007] 3 S.C.R. 108; R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641, at paras. 48, 54; R. v. Suntharalingam, 2012 ONSC 6207, [2012] O.J. No. 5145, at para. 19; R. v. McDowell, 2012 ONSC 7028, 40 M.V.R. (6th) 317, at para. 27; R. v. Pavlovsky, 2013 ONSC 6800, 58 M.V.R. (6th) 75, at para. 5.
2. Reasonable Grounds – The Legal Standard
[7] In order to establish the reasonable grounds necessary to justify the arrest of an accused or a demand for breath samples, a police officer must have subjectively had an “honest belief” that was objectively based on reasonable grounds. See R. v. Storrey, [1990] 1 S.C.R. 241, at pp. 249-251; R. v. Hall (1995), 22 O.R. (3d) 289 (C.A.), at pp. 298-299; R. v. Golub (1997), 117 C.C.C. (3d) 193 (Ont.C.A.), at para. 20, leave denied, [1997] S.C.C.A. No. 571; R. v. Muller, 2014 ONCA 780, 122 O.R. (3d) 721, at para. 36; R. v. Amare, 2014 ONSC 4119, [2014] O.J. No. 5225, at para. 83; R. v. Grant and Campbell, 2015 ONSC 1646, [2015] O.J. No. 1229, at paras. 90, 92. Accordingly, the issue in the instant case is whether, on the record before the court, a reasonable person in the circumstances of the investigating police officers could conclude that there were reasonable grounds to believe that the appellant’s ability to operate a motor vehicle was impaired by alcohol on the night in question. See R. v. Storrey, at p. 250; R. v. Bernshaw, [1995] 1 S.C.R. 254, at para. 51; R. v. Shepherd, at para. 17; R. v. Berlinski (2001), 9 M.V.R. (4th) 67, [2001] O.J. No. 377 (C.A.), at para. 3; R. v. Censoni (2001), 22 M.V.R. (4th) 178, [2001] O.J. No. 5189 (S.C.J.), at paras. 29-51.
[8] In R. v. Bush, Durno J., delivering the judgment of the Court of Appeal for Ontario, summarized the proper approach in assessing whether the necessary reasonable grounds exist in this type of “drinking and driving” context. In R. v. Suntharalingam, at para. 21, I sought to non-exhaustively summarize some critical conclusions articulated by Durno J. in the following six points:
- (1) The standard of reasonable and probable grounds lies somewhere between “reasonable suspicion” and “proof beyond a reasonable doubt.” Accordingly, the requirement of reasonable and probable grounds does not require proof beyond a reasonable doubt or even the establishment of a prima facie case. See R. v. Bush, at para. 36-37.
- (2) In the context of a demand for breath samples, the requirement of the reasonable and probable grounds standard is “not an onerous test.” It must not be “inflated to the context of testing trial evidence,” but neither must it be “so diluted as to threaten individual freedom.” See R. v. Bush, at para. 46.
- (3) There is no necessity that the accused be in a state of “extreme intoxication” before a police officer will have reasonable and probable grounds to effect an arrest. Indeed, impairment may be established where the Crown proves “any degree of impairment from slight to great.” Slight impairment to drive a motor vehicle relates to a reduced ability to perform a complex motor function, such as impacting one’s perception or field of vision, reaction or response time, judgment, or regard for the rules of the road. Accordingly, to justify an arrest or breath demand, the police officer need only have objectively based reasonable and probable grounds to believe that the accused’s ability to drive was “slightly impaired” by alcohol. See R. v. Bush, at paras. 47-48.
- (4) In assessing whether or not there are reasonable and probable grounds in any given case, trial judges are often improperly asked to engage in a “dissection” of the officer’s grounds by looking at each ground in isolation, and without appreciating that the opinions of the officer were developed at the scene “without the luxury of judicial reflection.” Yet it is “neither necessary nor desirable” to conduct an impaired driving trial as if it were a “threshold exercise in determining whether the officer’s belief was reasonable.” See R. v. Bush, at para. 55.
- (5) An assessment of whether the police officer objectively possessed reasonable and probable grounds does not involve the equivalent of an “impaired driver scorecard,” with a list of all the “usual indicia of impairment” and counsel conducting an inventory as to which indicia are present and which are absent as part of the essential assessment. Indeed, there is “no mathematical formula” whereby the police officer must have a certain minimum number of indicia of impairment before it can be said, as a matter of law, that the necessary reasonable and probable grounds are objectively present. The absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding that there are reasonable and probable grounds to believe the accused is impaired based upon all of the circumstances of the case. See R. v. Bush, at para. 56.
- (6) A trained and seasoned police officer is entitled to draw inferences and make deductions drawing on his or her years of experience. A trial judge is entitled to take into consideration the experience and training of the police officer in assessing whether or not he or she objectively possessed the necessary reasonable and probable grounds. See R. v. Bush, at para. 61.
3. The Reasonable Grounds in the Present Case
[9] In the circumstances of the present case, Budzinski J. correctly concluded that the investigating police officers possessed the necessary reasonable grounds to arrest the appellant for impaired driving and to demand suitable samples of his breath. In reaching this conclusion, I rely upon all of the following evidentiary aspects of this case, viewed in their totality:
- Driving the Wrong Way on the One-Way Ramp: At approximately 3:00 a.m. on November 17, 2013, Csts. Craig Meredith and Raman Manota, two experienced officers with the Toronto Police Service, spotted the appellant’s vehicle, a Toyota Yaris, travelling the wrong way on a one-way ramp/access road near Islington Avenue and Highway 401 in Toronto. Cst. Meredith activated the emergency lights of their marked police cruiser, drove toward the appellant’s vehicle, and ultimately parked the police cruiser about 20-30 feet in front of the appellant’s stopped vehicle, blocking the ramp lane for safety purposes. Cst. Meredith also activated the bright “take down” or “alley” lights on the front of the police car. As the uniformed officers approached the appellant’s vehicle, the Yaris rolled backwards.
- The Physical Condition of the Appellant: When the two police officers approached the appellant’s vehicle, they both went to the driver’s side of the Yaris. Cst. Manota used his flashlight to help illuminate the appellant inside his vehicle as they approached. While it was raining at the time, the officers had no difficulty seeing the appellant inside his vehicle. Cst. Manota testified that there was “a lot of artificial lighting” and visibility was “quite good.” The officers saw that the appellant was alone in his vehicle and was seated in the driver’s seat. Cst. Manota said that, in the result, visibility was quite clear. He noticed that the vehicle was still in “drive.” The appellant did not react to the presence of the police, even when Cst. Meredith spoke to him through the window, and indicated that they were the police. He just looked straight ahead. He was not unconscious, but he seemed “zoned-out.” He was not “fazed” by the presence of the police. The officers collectively described the appellant’s eyes as red, glassy, glazed over and bloodshot. Cst. Meredith concluded, from his observations and the appellant’s demeanour and body language, that the appellant was in “no position” and “not in condition” to be driving a motor vehicle. Indeed, Cst. Meredith indicated to his partner that the appellant was “hammered.” Cst. Meredith explained that he deals with “intoxicated people on a regular basis” and he knew that the appellant was “drunk.”
- The Odour of Alcohol (and Marihuana): When Cst. Meredith opened the driver’s door of the appellant’s Yaris to check on the appellant, he was “instantly” and “immediately hit” by the “intense odour” of alcohol inside the vehicle. Cst. Meredith also noticed the distinctive smell of marihuana from inside the vehicle. Cst. Manota also smelled the alcohol and marihuana from the inside of the vehicle as soon as the door was opened. The officers did not see or locate any liquor or beer bottles, or any other containers of alcohol, inside the vehicle. At that point, Cst. Meredith told his partner that the appellant was “drunk.”’
- Opinion of Cst. Meredith – The Arrest of the Appellant: At that point, Cst. Meredith believed that he had the necessary grounds to arrest the appellant for impaired operation of a motor vehicle. Accordingly, he told the appellant that he was under arrest for impaired driving. At that time, the lights and ignition of the Yaris were on, and the appellant was still wearing his seat belt.
- Post-Arrest Events – More Indicia of Impairment: When Cst. Meredith asked him to remove his seatbelt, the appellant needed “a few tries” to unbuckle himself from the seat belt, and seemed to be “fumbling” for the release button. As Cst. Meredith tried to help the appellant out of the vehicle, as he did not want him to fall, the Yaris started to roll backwards. Cst. Meredith had to quickly engage the emergency handbrake to stop the vehicle. Once the appellant was out of the vehicle, Cst. Meredith noticed that he was “unsteady on his feet,” even though the ground in the area was “relatively flat.” Cst. Manota then placed handcuffs on the appellant and advised the appellant of his rights to counsel and demanded that he provide samples of his breath suitable for analysis.[^1]
4. The Ruling by the Trial Judge
a. Introduction
[10] In arguing that the investigating police officers did not have the necessary reasonable grounds, defence counsel contended that, in his ruling on this issue, the trial judge did not accept the testimony of the two police officers as to their alleged observations of the appellant’s indicia of impairment. Rather, the trial judge accepted only three specific pieces of evidence that he mentioned at the conclusion of his ruling. I reject this argument.
[11] There was but one aspect of the police officer’s testimony that the trial judge expressly refrained from relying upon in drawing his conclusions about whether the necessary reasonable grounds existed in this case: Cst. Meredith’s evidence that he observed spittle on the side of the appellant’s mouth as he approached the appellant’s vehicle. However, that was the limited extent of the trial judge’s hesitation in relation to the testimony of the officers. In my view, a fair reading of the ruling by the trial judge, viewed in the context of the submissions advanced by counsel, demonstrates that the trial judge, in fact, accepted the remainder of the testimony of the officers as reliable and credible.
b. The Trial Judge Accepted the Evidence of the Police Officers
[12] Near the outset of his ruling on this issue, the trial judge observed that “both officers” were “extremely frank and detailed” in giving their evidence. According to the trial judge, the officers made “no attempt” to “twist” the facts or “provide information as an adversary” to the appellant in this case. In this regard, the trial judge noted that the officers made “a number of concessions” that were fair and favourable to the appellant. In short, the trial judge viewed the two police officers as honest and credible witnesses.
[13] The trial judge also noted in his ruling that while defence counsel confronted Cst. Meredith with the “timeframe” issues flowing from the in-car video recording, the officer was “very consistent and adamant about certain things happening” the way he testified they happened. Contrary to the argument of defence counsel, this comment by the trial judge was not a rejection of the testimony of Cst. Meredith. Rather, it was an observation that Cst. Meredith consistently maintained, throughout cross-examination, that he took the steps he described and made the observations he claimed. Moreover, having carefully reviewed the video recording, it is not inconsistent with the testimony of the police officers. As the trial judge observed during argument, the actions of the police officers were “doable” within the brief timeframe provided in the video recording, especially given that the observations and actions of the officers were not all independent events that unfolded in a “sequential” and “linear” fashion (as necessarily described in their testimony), and might have unfolded together as the police “multitasked” in their investigation.
c. Reviewing and Accepting the Evidence of the Police Officers
[14] In his review of the evidence in his ruling, the trial judge expressly referred to the testimony of Cst. Meredith that, before opening the driver’s door of the Yaris, he observed the “lack of focus” on the part of the appellant. The trial judge described this observation as “reasonable, objective and subjective,” and indicated that it showed a “type of impairment, or lack of mental skills” on the part of the appellant. By these comments, the trial judge concluded that Cst. Meredith subjectively saw this lack of focus on the part of the appellant, and it was objectively reasonable for the officer to believe that this was one indicium of alcohol impairment. The trial judge would not have referred to this evidence in this way if he did not accept it. Indeed, at one point in his ruling, the trial judge expressly found as a fact that the appellant “lacked focus” when he was approached by the police.
[15] Similarly, the trial judge noted that, according to both of the officers, they “smelled an odour of alcohol” coming from inside the car when they opened the driver’s door of the appellant’s vehicle. They also testified that there were “no open bottles” in the vehicle and the appellant was the “only occupant” of the vehicle. Again, the trial judge would not have referred to this important aspect of the evidence, which was uncontradicted by any other evidence, if he did not accept it. Moreover, it is hard to imagine how the trial judge could have reached the conclusion he ultimately did on the Charter application without accepting this critically important aspect of the evidence. Indeed, it was only after reviewing this evidence that the trial judge concluded that in the circumstances of this case, there was “sufficient grounds, reasonable grounds, to make the arrest and the demand.”
d. The “Three Pieces of Evidence” Mentioned by the Trial Judge
[16] At the conclusion of his ruling, after expressly stating that “the Charter application fails,” the trial judge further stated as follows:
I do find, for the purposes of the Defence, for any other future purposes, that the three pieces of evidence that were made at the time of the arrest and that led to the arrest was (a) the position of the car; (b) the motioning of the car, or the car not being placed into park as the officers approached, inferred from the fact that the car moved backwards up a hill when the officers opened the door and asked the accused to remove his belt and get out; and his lack of focus.
[17] The appellant placed great reliance on this passage from the ruling, and contended that this passage makes it clear that the only police evidence ultimately accepted by the trial judge was the evidence that: (a) the appellant’s vehicle was first observed heading the wrong way on a one-way ramp; (b) the appellant’s vehicle was not in “park” when the police arrived as it began to move backward when the appellant started to get out of his vehicle; and (c) the appellant appeared to have a “lack of focus” when the police arrived at his vehicle.
[18] Understood in context, I do not read this passage as drawing that conclusion. In my view, the trial judge was not, at this point in his ruling, trying to create an exhaustive list of all of the facts he accepted in support of his conclusion that the police had the necessary reasonable grounds. Rather, the trial judge was simply trying to highlight certain particular findings of fact “for the purposes of the defence,” which was about to be called upon to decide whether or not to call any evidence on the trial proper. In this regard, it is noteworthy that in the very next passage of his ruling the trial judge stated:
I will leave the drool aspect as being inconsistent as to whether the officers observed it through the window, or only after the door was opened. So it is those factors, other than the spittle, which I find were sufficient grounds, reasonable grounds, to make the arrest and make the demand.
[19] The police officers had testified that, in addition to their other observations of the appellant, they also observed some “spittle” on the left side of his mouth. More specifically, Cst. Meredith testified that, as he was approaching the vehicle, the appellant was not drooling, but there was some “spit” at the side of his mouth: there was some “saliva not dripping but sitting in the crevice of the left side of his mouth.” Cst. Meredith testified that he made that observation with the assistance of his partner’s flashlight. Cst. Manota testified that, after the door of the appellant’s vehicle was open, but while the appellant was still sitting inside his vehicle, he saw that the appellant “had a drool on the left side of his mouth.”
[20] In arguing this Charter application at trial, defence counsel challenged the observations of Cst. Meredith on this point most directly, saying: “… I’ll just say it plainly, the officer did not see … spittle in his mouth … before opening the door.” Defence counsel contended that the officer’s evidence in this regard “doesn’t make sense.” The trial judge then questioned defence counsel on the basis that “we leave aside the spittle of the mouth.”
[21] In my view, in these circumstances, it is apparent that, in his ruling, the trial judge did indeed “leave aside” the evidence from the police officers concerning the “spittle” on the appellant’s mouth. He did not reject this evidence, but rather expressly set it aside, electing not to rely upon that aspect of the evidence in reaching his conclusion. Of course, if the trial judge had intended, in the immediately preceding paragraph of his ruling, in listing the “three pieces of evidence,” to create an exhaustive list of all of the evidence that he accepted (rejecting all of the rest of the evidence of the police officers), he would not have needed to “leave aside” the evidence about the appellant’s spittle. That evidence, like the other evidence of the police officers not expressly mentioned in the list of “three pieces of evidence” would already have been rejected.
5. Conclusion
[22] Accordingly, I cannot accede to this ground of appeal. In my view, the trial judge correctly concluded that there had been no violation of the appellant’s rights guaranteed by ss. 8 and 9 Charter, in that the police had the necessary “reasonable grounds” for their arrest of the appellant and for their demand that he provide samples of his breath suitable for analysis in an approved instrument.
6. The Admissibility of the Breathalyzer Results
[23] In any event, even if I had reached a different conclusion regarding the existence of reasonable grounds, and had found a violation of ss. 8 and 9 of the Charter, I would not have excluded the results of the appellant’s breath samples under s. 24(2) of the Charter. See R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 72-75; R. v. McDowell, at paras. 47-60; R. v. Pavlovsky, at paras. 15-21; R. v. Rehill, 2015 ONSC 6025, [2015] O.J. No. 5068, at paras. 28-48.
[24] With respect to the seriousness of the potential state misconduct, I would characterize any potential Charter violation in this case as a relatively minor one. The investigating officers acted in good faith in arresting the appellant and in demanding samples of his breath. As I have indicated, the trial judge remarked that the officers were “extremely frank and detailed” in their evidence, and made “no attempt” to “twist” their testimony, or “provide information as an adversary” of the appellant. Clearly, Cst. Meredith, who made the decision to arrest the appellant for impaired driving, subjectively and honestly believed that he had the necessary reasonable grounds. The trial judge accepted that those grounds were objectively reasonable. In addition, immediately after the arrest, Cst. Manota promptly advised the appellant of the informational component of his right to counsel according to s. 10(b) of the Charter. At the police station, the appellant was permitted to exercise that right by consulting privately with counsel. There is no evidence that either police officer acted recklessly, negligently, or in ignorance of any statutory or Charter requirements. They certainly did not deliberately violate any of the appellant’s constitutional rights. In these circumstances, in my view, the first prong of the governing s. 24(2) Charter analysis favours the admissibility of the results of the appellant’s breath samples.
[25] With respect to the impact of any potential Charter violation on the constitutional interests of the appellant, it is important to appreciate that the receipt and analysis of the appellant’s breath samples was accomplished by means of a relatively non-intrusive procedure which had no more than a slight impact upon the Charter-protected interests of the appellant. Accordingly, this second prong of the s. 24(2) Charter analysis also favours the admission of the evidence concerning the appellant’s breath samples. See R. v. Grant, at paras. 100-111; R. v. Taylor, 2010 ONSC 4850, 1 M.V.R. (6th) 103, at para. 44, leave denied: 2011 ONCA 681; R. v. McDowell, at paras. 50-54; R. v. Rehill, at paras. 33-37.
[26] With respect to the third prong of the analysis, in R. v. Grant, at para. 110, the Supreme Court of Canada noted that this aspect of the analysis “will usually favour admission in cases involving bodily samples,” as such evidence is generally reliable, and the risk of error inherent in depriving the trier of fact of the evidence may well tip the balance in favour of the admission of the evidence. In this case, the analytical results of the appellant’s breath samples, secured through use of an approved instrument, are reliable evidence that is important to the merits of the case. If the evidence were excluded, the Crown’s case (at least with respect to the stayed “over 80” charge) would necessarily fail. On the other hand, if the evidence is admitted, it establishes that the appellant was operating his motor vehicle with an illegal blood-alcohol concentration (and while his ability to do so was impaired by alcohol). The very considerable societal interest in a criminal trial on its merits would be seriously undercut if such highly reliable and critical evidence were excluded. Of course, the public has long had a very strong interest in seeing “drinking and driving” cases dealt with on the merits, given the often tragic consequences of such offences. Accordingly, the third aspect of the s. 24(2) Charter analysis also favours the admission of the evidence. See R. v. Taylor, at para. 45; R. v. Grant, at para. 106; R. v. Lacasse, 2015 SCC 64, at paras. 7-8.
[27] The overall balancing of these three considerations against the background of all of the circumstances of this case is straightforward, as all prongs of the analysis favour the admission of the evidence. As such, I am led to conclude that, even if the approved instrument results of the appellant’s breath samples were obtained in violation of the appellant’s rights under ss. 8 and 9 of the Charter, those results would still be admissible under s. 24(2) of the Charter. See R. v. McKenzie, 2011 ONCA 42, 280 O.A.C. 175, at paras. 9-13; R. v. Yamka, 2011 ONSC 405, 267 C.C.C. (3d) 81, at paras. 68-92; R. v. Pavlovsky, at para. 21; R. v. Rehill, at paras. 42-48; R. v. Su, 2014 ONSC 5296, [2014] O.J. No. 4439, at paras. 78-89, affirmed, 2016 ONCA 58, at para. 2.
C. Conclusion
[28] In the result, the appeal against conviction must be dismissed. An order shall issue accordingly.
Kenneth L. Campbell J.
Released: January 25, 2016
CITATION: R. v. Acquah, 2016 ONSC 597
COURT FILE NO.: 8/15
DATE: 20160125
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
- and -
KWASI ACQUAH
REASONS FOR DECISION
[Summary Conviction Appeal]
K.L. Campbell J.
Released: January 25, 2016
[^1]: As these events took place after the arrest of the appellant, they cannot be relied upon as supporting the grounds for the arrest of the appellant. However, this additional evidence is properly considered in support of the demand for breath samples made to the appellant.