Court File and Parties

COURT FILE NO.: 12-A9271 DATE: 2017/03/03 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Appellant – and – KIMBERLEY LYNN MCLACHLAN Respondent

Counsel: Jessica Carvell, Counsel for the Appellant W. Vincent Clifford, Counsel for the Respondent

HEARD: in Ottawa, 2016/11/16

REASONS FOR JUDGMENT On appeal from the decision of Justice Anderson, Ontario Court of Justice, at Ottawa, dated August 10, 2015.

LABROSSE J.

Introduction

1The Appellant appeals the Respondent’s acquittal of charges of operating a motor vehicle while her ability to operate a motor vehicle was impaired by alcohol.

2The Respondent was arrested for “over 80” following a roadside stop by the Ottawa Police Service (“OPS”). The Respondent was taken to the police station and ultimately provided two samples of her breath into an approved instrument. At the time of the samples, the readings indicated that the Respondent’s blood alcohol content was respectively 163 and 156 milligrams of alcohol in 100 millilitres of blood.

3As the breath samples were taken more than two hours after the offence, the Crown was unable to rely on the presumption of identity in s. 258 of the Criminal Code, R.S.C., 1985, c. C-46, (the “Code”). While the Respondent was in the cellblock, she was required to stand on a scale and provide her weight.

4In order to establish that no bolus drinking has occurred, the Crown’s toxicologist required evidence of the weight of the Respondent. The toxicologist was able to opine that bolus drinking in this case required that the Respondent would have had to consume between 2 ¾ and 3 ¾ standard drinks within 15 minutes of the roadside stop.

5The trial judge made a finding that bolus drinking was “in play” and that the Crown had failed to prove that there was no bolus drinking.

6The trial judge then ruled that the police action of requiring the Respondent to stand on a scale and provide her weight was evidence obtained in breach of the Respondent’s rights under s. 8 of the Canadian Charter of Rights and Freedoms, (the “Charter”) and that the evidence should be excluded under s. 24(2) of the Charter. Thus, the trial judge acquitted the Respondent.

[7] The grounds of appeal are that: − the trial judge erred in finding that bolus drinking was “put in play” based on the evidence before him; − the trial judge erred by finding that the obtaining of the Respondent’s weight was unauthorized in law; and, − the trial judge erred by finding that the Respondent’s weight should be excluded pursuant to section 24(2) of the Charter.

Relevant Facts

8On January 16, 2012, at approximately 11:00 p.m., Constable Gunsolas of the OPS observed the Respondent in her vehicle in a dead end roadway in the intersection of Hunt Club Road and Hawthorne Road in the City of Ottawa. Cst. Gunsolas followed the Respondent for a certain distance, observed some signs of erratic driving and conducted a traffic stop.

9The officer approached the vehicle and noticed a strong smell of alcohol emanating from the vehicle. It took the Respondent quite some time to retrieve her driver’s licence, her speech was slow and deliberate, her eyes were glossy, she appeared to have a dry mouth and was licking her lips.

10As a result of these observations, the officer made an approved screening device demand. After 5 unsuccessful attempts, the Respondent provided a sample and the device registered a “fail”. The Respondent was arrested for “over 80” and was searched. The officer did a cursory search of the Respondent’s vehicle before providing her caution and right to counsel, and then transported her to the cell block.

11Upon arrival at the cell block, the Respondent was placed in the custody of a Qualified Breath Technician who advised her that it was normal practice for her to stand on a scale and provide her weight. The Respondent asked: “Do I have to?” and the officer replied: “Yes, I need your weight”.

[12] The OPS witnesses who testified at trial made the following observations of the Respondent while at the Police Station: (a) her eyes were still glossy but she was cooperative and polite; (b) her speech was noted to be good but slow and deliberate; (c) when she was placed in a cell, her eyes remained red and glossy and it appeared she had been crying. She was seen to have dilated pupils and watery, glassy, bloodshot eyes; (d) it was noted that she reeked of alcohol; (e) nothing unusual was noted about her balance or walking.

Standard of Review

13Section 686(1)(a) of the Code, sets out the grounds for an appellate court to grant or refuse a summary conviction appeal.

14The approach to be used by a court sitting in appeal of a trial judge’s decision was described by the Supreme Court of Canada in R v. Burns, [1994] 1 S.C.R. 656, at para. 14, in the following terms:

In proceeding under s. 686(1)(a)(i), the court of appeal is entitled to review the evidence, re-examining it and re-weighing it, but only for the purpose of determining if it is reasonably capable of supporting the trial judge’s conclusion; that is, determining whether the trier of fact could reasonably have reached the conclusion it did on the evidence before it… Provided this threshold is met, the court of appeal is not to substitute its view for that of the trial judge, nor permit doubts it may have to persuade it to order a new trial.

15A trial judge should be afforded considerable deference as to whether or not the allegations before the court have been made out beyond a reasonable doubt. In R v. Biniaris, 2000 SCC 5 , [2000] 1 S.C.R. 381, at para 24, Justice Arbour indicated:

Triers of fact, whether juries or judges, have considerable leeway in their appreciation of the evidence and in the proper inferences to be drawn therefrom, in their assessment of the credibility of witnesses, and in their ultimate assessment of whether the Crown’s case is made out, overall, beyond a reasonable doubt. Any judicial system must tolerate reasonable differences of opinion on factual issues. Consequently, all factual findings are open to the trier fact, except unreasonable ones embodied in a legally binding conviction.

Trial Judge’s Decision

(a) Bolus Drinking

16In finding that bolus drinking was “in play”, the trial judge considered the applicable jurisprudence in R. v. Paszczenko, [2009] O.J. No. 20 and R. v. Lima, [2008] O.J. 1566. He considered various pieces of evidence in coming to the conclusion that the assumption of no bolus drinking was not established by the Crown. The trial judge noted the difficulty for the Crown in having to prove a negative.

[17] The trial judge acknowledged that bolus drinking is a relatively rare phenomenon. He pointed to the following evidence in support of his conclusion; a. There are numerous residences and businesses where alcohol is available immediately to the north of where the Respondent’s vehicle was first observed; b. That only a cursory search was done of the vehicle after the Respondent’s arrest and that the area surrounding where the vehicle was first seen was not searched; c. The lack of explanation for where the Respondent was first seen on dead-end street extension; d. The strong odour of alcohol emanating from the vehicle; e. The change in indicia of alcohol consumption and impairment; and, f. The relatively minor observations by the arresting officer of signs of impairment while he followed the Respondent prior to the traffic stop.

18All of these factors left open the possibility that the Respondent had consumed alcohol in the vehicle or immediately before she commenced driving. The trial judge concluded that it continued to be a live issue that the Respondent had consumed sufficient alcohol within 15 minutes of her last operation of the vehicle.

a) Charter Application

19The trial judge gave reasons for the Charter application with respect to the alleged breach of section 8. The breach resulted from the fact that the breath technician required that the Respondent provide her weight by standing on the scale.

20In accepting a breach of s. 8 of the Charter, the trial judge considered a number of relevant authorities such as the Identification of Criminals Act, (R.S.C., 1985, c. I-1) and its purpose as set out in R. v. Beare, [1988] 2 S.C.R. 387 and the direction of the Supreme Court of Canada in authorizing a search incident to arrest in R. v. Caslake, [1998] 1 S.C.R. 51 which included consideration of the three main purposes of search incident to arrest as set out by L’Heureux-Dube J. in R. v. Cloutier, [1990], 1 S.C.R. 158. The trial judge came to the following conclusion:

In my view, there was here a Charter breach. The accused had the benefit of counsel, following that advice she indicated that she did not wish to comply with the request to be weighed. She was advised that weighing was mandatory and only then did she comply with the demand. The demand to be weighed is not included in the Criminal Code, nor can I find justification in the Indentification of Criminals Act. Nor as part of the search as being part of the search incident to arrest, Constable Burlow (ph) is not aware of any justification in his evidence, but stated he was following policy. The policy of any police officer, detachment, or police force, must comply with and be unathorized by the law.

[21] In deciding to exclude the evidence under s. 24(2) of the Charter, the trial judge applied the well-known three part analysis in R. v. Grant, 2009 SCC 32, [2009] 2 SCR 353. In applying the Grant analysis, the trial judge concluded that: a. The breach was serious given that OPS policy to weigh individuals in these circumstances is not a policy authorized by law as it is not found in the Identification of Criminals Act or in any other statute. Further he concludes that it was not a search incident to arrest. He found that the OPS had developed a policy that had no legal authority. b. With respect to the impact of the breach on the Charter protected interests of the accused, the trial judge considered the right of the accused to remain silent and the seriousness of forcing a person to provide the authorities with evidence that can be used against them at trial. He made the analogy with forcing a person to provide their weight by verbal response which would be deemed under the common law as non-voluntary and that the subject breach was equally egregious. The trial judge concluded that the breach was somewhat intrusive and very serious. c. Finally, in considering society’s interest in adjudication on the merits, the trial judge focussed on the importance of the evidence of the weight of an individual to successfully prosecute impaired drivers but disagreed that this authority was necessarily implied in the existing legislation. Further, the trial judge concluded that it was not a form of authority otherwise provided to the police by Parliament. The trial judge also turned his mind to alternatives that police may have to use to determine a person’s weight and while it may not be exact, there are still mechanisms available to the police to obtain the required evidence.

Analysis

22My analysis starts with repeating the direction given to a court sitting in appeal of a trial judge’s decision. After reviewing the evidence and re-weighing it, the appeal court must determine if the evidence is capable of supporting the trial judge’s conclusions and could the trial judge have reasonably reached the conclusion it did on that evidence. Further, the appellate court is not to substitute its view for that of the trial judge: see Burns at para 14.

Issue One: Finding that Bolus Drinking was “in play”

23The trial judge made a series of findings of fact in coming to the conclusion that bolus drinking was “in play”. He did not solely base his analysis on any particular piece of evidence but looked at the situation as a whole. He assessed the evidence commencing with the location where the vehicle was first observed, the evidence of the Respondent’s driving while the arresting officer followed her, the strong smell of alcohol emanating from the vehicle, the cursory search of the vehicle, the absence of a search where the vehicle was first observed and the increased indicia of impairment at the police station.

24These facts must be distinguished with the decision in R. v. Saul, 20156 BCCA 149 where the trial judge relied particularly on the absence of evidence that the accused had not stopped at a nearby town where he may have consumed alcohol. The trial judge’s decision demonstrates that the presence of residential and commercial establishments in the vicinity of where the Respondent was first observed was but one factor amongst many other which led to the ultimate conclusion. This is not a case where speculation formed a significant part of the analysis.

25The trial judge’s analysis on the bolus drinking issue demonstrated that he considered the entire chain of events and applied that evidence to the applicable law. I have considered the evidence at trial and conclude that it is capable of supporting the trial judge’s conclusion on the issue of bolus drinking. I am satisfied that the trial judge’s findings considered the evidence in its totality. The conclusions of the trial judge are supported by the evidence and they are certainly not unreasonable based on the record before me.

26This ground of appeal is dismissed.

Issue Two: Breach of Section 8 of the Charter

[27] As stated by the Respondent, “Canadian courts continue to exercise their custodial role over discretionary police powers, recognizing new common law powers and imposing limitations on their use.” Various examples are provided to circumstances where the ancillary powers doctrine has been used to authorize police action such as: (a) investigative detention; (b) search incidental to lawful arrest; (c) warrantless entry into residences; (d) roadside sobriety testing; (e) sniffer-dog searches; and, (f) warrantless searches of a cell phone.

[28] As stated by the Supreme Court of Canada in Cloutier v. Langlois, 1990 CarswellQue 8 (SCC), there are three main purposes to a search incident to arrest: (a) ensuring the safety of the police and public; (b) the protection of evidence from destruction; and, (c) the discovery of evidence which can be used at trial.

29However, these objectives must be explained by the police as having a reason related to the arrest for conducting the search at the time the search was carried out and that reason must be objectively reasonable: see R. v. Caslake, [1998] 1 S.C.R. 51 at para 25.

30In the present circumstances, the trial judge considered the right of the police to compel the Respondent to be weighed in light of the authority provided under the Identification of Criminals Act and the powers of search incident to arrest as set out by the Supreme Court of Canada in Caslake. After considering these authorities, the trial judge concluded that there was no statutory or common law authority for the police to compel an accused person to be weighed. He further noted the absence of a subjective belief by the police that such a search was incident to arrest.

31My consideration of this issue focuses on the absence of a specific statutory power for the police to obtain the weight of an individual in the course of an arrest for impaired driving. If this information was so crucial to the processing of such individuals, Parliament would have included this authority along with the other police powers which have been created in such circumstances.

32I particularly agree with the trial judge’s observations that there are likely other ways that the police may establish the necessary evidentiary basis for the weight of an individual to be sufficiently determined to allow a toxicologist to provide the necessary analysis. While such methods may not be as accurate as having a person stand on a scale, these are options which would be more desirable than requiring the accused person to furnish the information. The process used by the OPS in these circumstances causes further difficulty given that no specific caution was provided to the Respondent on the issue of standing on the scale and she was not able to obtain legal advice on this demand.

33While I am sympathetic to the challenges that the finding of breach of s. 8 of the Charter may present to the police, the approach to obtaining the necessary evidence to allow the toxicologist to provide the required evidence on bolus drinking warrants needs to be addressed in a more comprehensive manner. It is not sufficient for a breath technician to simply adopt his or her own practice. The OPS needs to have policy that applies to all breath technicians and such a policy may include alternative investigative methods which may be available to the police to present this type of evidence. Further, it may warrant seeking specific legislative authority.

34Given the state of the current legislative authority and the fact that the present circumstances do not in my view attain the purposes of search incident to arrest as set out in Cloutier, I conclude that the trial judge was correct in his conclusion that the police action of compelling the Respondent to stand on a scale and be weighed was a breach of the Respondent’s rights under s. 8 of the Charter. I would also dismiss this ground of appeal.

Issue Three: Section 24(2) of the Charter and the Grant Analysis

35The Appellant disputes the manner in which the trial judge applied the Grant analysis in determining if the evidence of the Respondent’s weight should be excluded pursuant to s. 24(2) of the Charter.

36Firstly, the Appellant argues that the officer who weighed the Respondent acted in good faith and any resulting breach was the result of honest inadvertence. Secondly, the effect of the breach on the Respondent’s Charter-protected interests is negligible. Thirdly, the evidence is highly reliable and its exclusion had a significant impact on the prosecution which undermines the truth seeking function of the trial.

37At trial, the Appellant conceded that the Respondent had a reasonable expectation of privacy in her weight. On appeal, the Appellant says the opposite given that a person’s weight is something that is objectively observable and obtainable, at least to a reasonable degree of approximation.

38The standard of review of a trial judge’s s. 24(2) determination is well settled. Where the trial judge has considered the proper factors and has not made an unreasonable finding, his ruling is owed considerable deference on appellate review: Regina v. Cote, 2011 SCC 46 , [2011] S.C.J. No. 46, para. 44.

39The trial judge properly applied the well-known Grant analysis. At the first stage, the trial judge considered the issue of good faith and properly noted that ignorance cannot be rewarded and willful blindness is not good faith.

40The evidence of the Breath Technician was that it was common practice within his experience to obtain a detainee’s weight in impaired driving investigations. While this practice was not defined as a policy of the OPS, it cannot be said to be an inadvertent breach. The manner in which a Breath Technician obtains information from a detainee needs to form part of a properly considered series of steps which is done consistently throughout a police service.

41While the trial judge did not make a specific finding that the absence of an OPS policy which is authorized by law to be a serious breach, his analysis demonstrates that he did. Issues surrounding the collection of evidence in impaired driving offences has occupied much time in the Courts over many years. The absence of a properly identified OPS policy which deals with the manner of obtaining or estimating the weight of a detainee represents a breach which cannot be qualified as inadvertent. While I acknowledge that it does not amount to bad faith, the breach here demonstrates an ignorance of the scope of the police authority in such circumstances and such ignorance of the scope of authority is still misconduct from which the court should be concerned to dissociate itself. While it is not the most serious of breaches, I still find it to be at the more serious end of the spectrum.

42In moving to the second factor, the trial judge acknowledged that the physical intrusion of having the Respondent weighed is less than the taking of bodily samples or fluids but he found that it was somewhat intrusive and serious.

43In considering the second factor, I consider the assessment provided by Kurke J. in R. v. Burke, 2017 ONSC 737 paras 17-18:

The second factor considers the extent to which the breach actually undermined the interests protected by the right that was infringed. Once again, a spectrum of analysis is involved, this one extending between a fleeting or technical breach to a profoundly intrusive breach. As the seriousness increases, there is a greater risk that admission of the evidence will lead the public to conclude that the courts have little concern for breached rights.

In the context of the second factor, seizures of bodily evidence such as the forcible taking of blood samples or dental impressions represent a serious intrusion, as would a strip search or a bodily cavity search. Fingerprinting, on the other hand, is relatively innocuous. So too, an illegal search in a dwelling is much more serious than that of an automobile, in terms of its effect on the privacy interests at play. The taking of breath samples falls at the relatively non-intrusive end of the spectrum: Grant, at paras. 109, 111, 113-114; MacMillan, at para. 79.

44As part of the second stage of the Grant analysis, the Court is also to consider the issue of discoverability. While the Crown states that a person’s weight is something objectively observable and obtainable, there is no evidence that in these circumstances, the technician was in a position to ascertain the Respondent’s weight in a manner other than having her stand on a scale. In these circumstances, I conclude that the incriminating evidence obtained was not otherwise discoverable.

45I acknowledge that the weighing of an individual is not as intrusive as the taking of bodily fluids. However, I am still of the view that the Respondent had a reasonable expectation of privacy in her weight when the evidence was going to be a key element in a finding of guilt. While the trial judge concluded that the breach was “somewhat intrusive”, I would go further and state that in my view it had a significant impact on the Charter-protected interests of the Respondent.

46As for the third factor in the Grant analysis, I adopt the reasoning of the trial judge and his conclusion that this type of authority to obtain the weight of a detainee is a matter for Parliament to decide. I acknowledge that society always has an interest in the adjudication of serious matters such as impaired driving on the merits. However the cautions provided to detained individuals as to their right to remain silent is fundamental in our society. The same can be said of a requirement to provide incriminating evidence which is an essential element of a prosecution. This is, in my view, one of those circumstances where society’s interest in the adjudication of the case and the obvious reliability of the evidence is outweighed by the need to ensure that a detainee is not required to incriminate herself in the absence of proper authority which permits it.

47While the trial judge did not make express reference to “balancing” in his decision, it is clear that he concluded that all three factors in the Grant analysis favoured exclusion. I agree and conclude that the trial judge has considered the proper factors under s. 24(2) of the Charter and has not made an unreasonable finding. Consequently, I would not give effect to this ground of appeal either.

Conclusion

48The appeal is dismissed.