Court File and Parties
COURT FILE NO.: CR-15-10000090-00AP DATE: 20170418
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – NISHAN MINHAS Appellant
COUNSEL: Melissa Mandel, for the Respondent Stephen Price, for the Appellant
HEARD: February 17, 2017
BEFORE: R.F. Goldstein J.
Reasons for Judgment on Summary Conviction Appeal
[1] The Appellant was stopped at a RIDE checkpoint on a wet December evening. He had his windows open and he smelled of alcohol. By his own admission he had been drinking all afternoon and at dinner. A police officer made an approved screening device demand. The officer also formed reasonable grounds to believe that the Appellant was impaired. The Appellant failed the approved screening device test. The officer arrested him. He gave two samples of his breath to a breath technician. His blood alcohol content was 206 milligrams and 190 milligrams of alcohol in 100 millilitres of blood. That was more than twice the legal limit.
[2] The whole process from entry to the RIDE checkpoint to first breath sample took less than an hour. Nonetheless the Appellant contended at trial that the police officer committed all manner of Charter violations. The trial judge found none. He found the Appellant guilty of impaired driving and “over 80”. The impaired driving charge was stayed.
[3] The Appellant appeals. In this Court he essentially attempts to re-litigate the decisions made by the trial judge. Although he assailed virtually every aspect of the trial judge’s decision as incorrect, his arguments can be reduced to these four:
- The trial judge erred in his credibility evaluation;
- The trial judge erred in accepting the evidence of impairment;
- Trial judge erred regarding the presence of mouth alcohol;
- The trial judge erred by failing to find that making an approved screening device demand after forming reasonable grounds to believe that a motorist is impaired amounts to a Charter violation.
[4] Despite counsel’s able submissions, I cannot accept these arguments. The trial judge made no errors. For the reasons that follow, the appeal is dismissed.
Background
[5] The Appellant was driving on December 15 2015. At about 9:50 pm he approached a RIDE checkpoint at the intersection of York Street and Front Street in downtown Toronto. Constable Aguiar was working the RIDE checkpoint. He testified that he saw the Appellant’s car approach. He stopped it. The Appellant stopped normally. Constable Aguiar noticed that the Appellant’s window and sunroof were open. Constable Aguiar thought this odd, as it was December and it was raining lightly. He testified that people do not ordinarily drive with their windows and sunroofs open when it is cold and wet.
[6] The Appellant was alone in the car. Constable Aguiar observed that he had a droopy face and smelled strongly of alcohol. He asked the Appellant whether he had had anything to drink. He also asked the Appellant whether he had had anything to drink in the previous 15 minutes. The Appellant said “no”.
[7] Constable Aguiar then waived the Appellant into a safe lane. The right rear tire of the Appellant’s car lightly brushed a pylon. Constable Aguiar also found that unusual, as most people who have not been drinking can navigate a safe lane without touching a pylon. At 9:51 pm, or about a minute after the Appellant stopped, Constable Aguiar made an approved screening device demand. This is a demand that a person provide a sample of his or her breath for an approved screening device. The device registers pass or fail. Constable Aguiar made the demand because he had a reasonable suspicion that alcohol was in the Appellant’s body.
[8] The police had a truck at the RIDE checkpoint. The truck had an approved screening device in it. Constable Aguiar asked the Appellant to accompany him to the truck. He observed that the Appellant was a bit unsteady on his feet as he got out of his car. While they were in the truck Constable Aguiar explained to the Appellant how to provide a breath sample. He also demonstrated. At that point he noticed that the Appellant’s eyes were glassy and half-closed. The Appellant appeared dazed, although he understood the conversation.
[9] At 9:56 pm the Appellant then gave a breath sample. He registered “fail”. At 9:58 pm Constable Aguiar arrested the Appellant for “over 80” and for impaired driving. In his testimony, he listed nine factors for arresting the Appellant for impaired driving. He then read the Appellant the approved instrument demand. This is a demand that a person provide samples of his or her breath for a machine that measures blood alcohol content.
[10] The police truck at the RIDE checkpoint had a place for individuals to make telephone calls. At 10:03 pm the Appellant called his wife. At 10:11 pm the Appellant called a lawyer. The Appellant spoke to the lawyer until 10:29 pm. The lawyer then spoke briefly to Constable Aguiar and then to the Appellant again. At 10:33 pm the call to the lawyer ended. Constable Aguiar then turned the Appellant over to the custody of the breath technician. The police truck also contained an approved instrument, the Intoxilyzer machine.
[11] The Appellant provided breath samples at 10:44 pm and 11:07 pm. As noted, the two samples showed his blood alcohol content was 206 and 190. Between providing the two samples Constable Aguiar took custody of the Appellant again. He noted that the Appellant was still unsteady on his feet, his eyes were still glossy and bloodshot, and that he smelled of alcohol.
Trial and Reasons for Judgment
[12] The Appellant was charged with impaired driving and “over 80”. He filed a Charter application. The trial proceeded as a blended voir dire, meaning that the evidence was called all at once, and applied to both the Charter application and the trial of the charges themselves. The Crown called one witness: Constable Aguiar.
[13] The Appellant then took the stand. He testified that he was coming from a restaurant when the police stopped him. He and a companion had been eating dinner. They had consumed a couple of bottles of wine throughout the day and then later at the restaurant. He had consumed his last drink just before he got up from the table and into his car. He had been driving about four or five minutes when he was stopped by the police. The officer did not ask him whether he had had anything to drink in the previous 15 minutes. At all times he walked normally. His ability to drive a car was not impaired.
[14] The defence also called Sam Saravanamuthu. Mr. Saravanamuthu works for the Appellant. He testified that they were together at the Raptor’s game in the afternoon. He and the Appellant each had three or four glasses of red wine at the game. After the game they went to dinner. They drank wine. He testified that the Appellant did not appear drunk to him. He was walking normally. They discussed business with no difficulty. At dinner, he and the Appellant shared one or two bottles of red wine. Mr. Saravanamuthu could not recall if they shared one bottle or two.
[15] The Appellant’s counsel argued at trial that Constable Aguiar breached the Appellant’s Charter rights in four ways:
- First, Constable Aguiar failed to determine whether the Appellant had consumed alcohol in the previous 15 minutes. That failure led to an improper screening device result. That improper result led, in turn to an improper arrest;
- Second, that Constable Aguiar did not have reasonable and probable grounds to arrest the Appellant for impaired driving;
- Third, that Constable Aguiar did not understand how the roadside screening drive worked. That improper understanding led to an unreliable result. That unreliable result also led to an improper arrest; and,
- Fourth, if Constable Aguiar had subjective reasonable and probable grounds to arrest for impaired driving (even though, objectively, he did not) then he should not have delayed the arrest by administering the approved screening device test. He should have given the Appellant his right to counsel. By failing to do so, he violated the Appellant’s rights under s. 10(b) of the Charter.
[16] The trial judge, Mr. Justice Ritchie of the Ontario Court of Justice, rejected all of these arguments. He found that there were no Charter violations.
Issues and Analysis
[17] As noted, the Appellant makes these four main arguments on appeal:
- that the trial judge erred in his credibility findings;
- that the trial judge erred in accepting Constable Aguiar’s evidence relating to impairment;
- that the trial judge erred regarding the presence of mouth alcohol; and,
- that the trial judge erred in failing to exclude the evidence because of Charter violations.
(a) Did the trial judge err in his findings of credibility?
[18] The Appellant argues that the trial judge erred by accepting the evidence of Constable Aguiar and rejecting the defence evidence. He says that Constable Aguiar’s evidence was unreliable due to confusion and poor note-taking. That should have led the trial judge to reject his observations of impairment. In contrast, he says, the defence evidence was compelling and credible.
[19] I disagree. The trial judge’s credibility findings were open to him on the record. The Appellant’s argument simply amounts to a difference of opinion with the trial judge. Credibility findings are entitled to deference, absent palpable and over-riding error: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 at paras. 48-51; R. v. Myerscough, 2001 ONCA 8573, [2001] O.J. No. 2867 (C.A.); R. v. Steenson, 2015 ONSC 2160 at para. 28.
[20] The trial judge demonstrated that he understood the principles correctly. He made the following observations about the credibility of the three witnesses in relation to the Charter motion:
… the testimony of both Mr. Minhas and Mr. Saravanamuthu was highly unreliable. They had consumed a large, unknown quantity of red wine. It is not believable that Mr. Minhas was not feeling the effects of alcohol. I cannot accept the word of two men who had consumed such a quantity of alcohol that Mr. Minhas was OK to drive, not showing any signs of impairment, and not feeling any effects from alcohol. Also very significantly, those assertions are directly and decisively contradicted by the convincing and compelling testimony given by Officer Aguiar. I reject the testimony of Mr. Minhas and Saravamuthu as being unreliable (including Mr. Minhas’s assertions regarding what Officer Aguiar said or didn’t say to him).
[21] The trial judge did not, in that part of his judgment, advert to the principles in R. v. W.(D.), [1991] 1 S.C.R. He was not required to do so. On a Charter motion the burden rests with the person attempting to show that there has been a violation, with the gloss that the burden is on the Crown to show that there were reasonable grounds for a police officer to make an approved instrument demand. The trial judge understood that. When considering whether the Crown had proven guilt beyond a reasonable doubt, he said this:
I considered Mr. Minhas’ testimony in the context of the evidence as a whole, in accordance with the second step of the ruling in R. v. W.D. The defendant’s testimony does not leave me with a reasonable doubt.
[22] Having already found the defence evidence unreliable, he understood that he was still required to determine whether the defence evidence left him with a reasonable doubt and whether the Crown had proven each offence beyond a reasonable doubt.
[23] The trial judge was entitled to reject the evidence of the defence witnesses based on a considered acceptance of the evidence of the prosecution witness: R. v. (D.)J.J.R. (2006), 2006 ONCA 40088, 215 C.C.C. (3d) 252 (Ont.C.A.). The trial judge, however, did more than that. He considered the amount of alcohol consumed by the Appellant (on his own testimony and that of his employee). He simply found it unbelievable that the Appellant would not have felt any effect from alcohol or would have shown no signs of impairment. He was entitled to make that finding and there was nothing unreasonable about it. The Appellant’s own evidence of his consumption was consistent with the observations of Constable Aguiar. It was also consistent with Appellant’s blood alcohol content, which was more than twice the legal limit (although the trial judge did not make a credibility assessment based on the Appellant’s blood alcohol content).
[24] I also reject the Appellant’s argument that the trial judge erred by failing to find that Constable Aguiar’s reliability was tainted by poor note-taking. Constable Aguiar testified that he asked the Appellant whether he had had anything to drink recently when he pulled him over. He did not make a note of asking the Appellant that question. The Appellant argues that since it was an important point, Constable Aguiar’s failure to note it shows a serious failure. Deficient note-taking can result in a finding that an officer’s evidence is unreliable: R. v. Zack, [1999] O.J. No. 5747 (Ont.C.J.).
[25] In the circumstances of this case, I disagree. That argument was made at trial. The trial judge found that Constable Aguiar was a reliable witness, thus rejecting the argument. He distinguished Zack, supra. He also found that Constable Aguiar’s evidence was not contradicted by his notes or inconsistent with them. The supposed deficiencies were minor omissions that did not impact negatively on the officer’s credibility. That conclusion was open to the trial judge on the evidence before him.
[26] I adopt the comments of Durno J. in Steenson, supra, at para. 26 on this point:
The use of officer's notes including omissions has been addressed in numerous cases. In R. v. Machado (2010) M.V.R. (5th) 58 (Sup.Ct.) I attempted to summarize the law as follows:
While officers' notes are provided as part of disclosure, there is no law that I am aware of that an officer must record everything he or she did or saw in their notebook to comply with the Crown's disclosure obligation. While some... have attempted to elevate the judgment in R. v. Zack, [1999] O.J. No. 5747 (O.C.J.) to a statement that if an event or observation is not in the notes, that it did not occur, that is not what the judgment says. Indeed, there are numerous authorities where events or observations that are not noted have been accepted: R. v. Thompson (2000), 2001 ONCA 24186, 151 C.C.C. (3d) 339 (Ont. C.A.); R. v. Bennett, [2005] O.J. No. 4035 (S.C.J.).
I agree with the following comments of Garton J. in R. v. Antoniak, [2007] O.J. No. 4816 (S.C.J.):
It should be remembered that an officer's notes are not evidence, but are merely a testimonial aid. Trial judges routinely tell officers on the witness stand that they may use their notes to refresh their memory, but that they must also have an independent recollection of the events. To elevate the absence of a notation to a mandatory finding that the event did not occur would eliminate the officer's independent recollection from the equation. The notes would become the evidence.
The significance of an omission in an officer's notebook, just like the significance of an inconsistency in a witness's testimony, must be determined by the trier of fact on a case-by-case basis.
[27] The Appellant also argues that Constable Aguiar changed his evidence under cross-examination. That, he says, showed that his evidence was not reliable. Accordingly, the Appellant argues, it was an error for the trial judge to accept Constable Aguiar’s evidence.
[28] It is true that Constable Aguiar did backtrack on the issue of reasonable grounds to arrest. The trial judge made the following observation about that:
Officer Aguiar was inconsistent in his testimony regarding when he had reasonable and probable grounds to arrest Mr. Minhas for impaired driving. He said that he had the grounds before the approved screening device test and also that he did not have the grounds until after the approved screening device test. Mr. Price is a highly skilled and knowledgeable counsel, probably one of the best in Canada in drink/drive matters, and Officer Aguiar’s confusion was understandable, in my opinion. However, I believe that Mr. Price’s questioning also helped the officer to clarify his thinking, and what had happened eventually became clear.
[29] Thus, the trial judge addressed the inconsistencies in the evidence. The Appellant calls this part of the judgment a rationalization. I respectfully disagree. The trial judge accurately described what happened: a skilled cross-examiner managed to confuse an honest witness and get him to chase his tail on an issue that is technical and complicated even for lawyers and judges. I respectfully adopt Durno J.’s comment in Steenson, supra, at para. 27:
I am not persuaded the trial judge erred in his assessment of these issues. Put simply, whether to accept the officer's evidence was the trial judge's call. The officer gave an explanation for the error and said that he recalled getting the appellant to get out of his truck. While His Honour was not required to accept the explanation, the officer's credibility was for the trial judge to determine.
[30] The officer’s grounds evolved over the course of his dealings with the Appellant. He initially only formed the view that the Appellant had alcohol in his body. The officer made observations consistent with impairment after he made the approved screening device demand: for example, it was only when the Appellant walked with him to the RIDE truck that he noticed the unsteadiness on his feet. The trial judge was entitled to take these post-screening demand observations into account when evaluating the credibility of the officer.
[31] The Appellant also argues that Constable Aguiar demonstrated that he was unfamiliar with the approved screening device. Constable Aguiar was aware that he was not to administer a test using the approved screening device near the antenna of a cell phone or radio. He did not search the Appellant or check to see if he had a cell phone. That, the Appellant argues, amounted to a failure to properly understand and operate the approved screening device. He argues that where a police officer fails to understand the working of the approved screening device that will amount to a Charter violation: R. v. Au-Yeung, 2010 ONSC 2292 at paras. 40-41.
[32] I respectfully disagree with that point as well. This case is distinguishable from Au-Yeung. In that case, the officer admitted that he was unsure how to use the approved screening device. That is not what Constable Aguiar testified to. Whether the officer understood the operation of the approved screening device sufficiently to obtain a reliable result is a question of fact. There was no evidence that any radio transmissions interfered with the operation of the approved screening device. In fact, Constable Aguiar testified that there were no radio transmissions in close proximity to the approved screening device while he was doing the test. Had the trial judge accepted the possibility that radio transmissions might have interfered with the operation, it would have amounted to a finding based on speculation. A police officer is not required to have a full understanding of the inner workings of the approved screening device. A police officer need only know how to operate it in order to obtain a reliable result: R. v. Mastromartino (2004), 2004 ONSC 28770, 70 O.R. (3d) 540, [2004] O.J. No. 1435 at para. 78-79. The trial judge rightly rejected that argument.
(b) Did the trial judge err in finding impairment?
[33] The Appellant argues that Constable Aguiar’s nine indicia of impairment were unreliable and should not have been accepted by the trial judge. He argues that some of the officer’s nine points were “simply ludicrous”. He points, for example, to Constable Aguiar’s observation that the Appellant had a “droopy face” and referred to the fact that the Appellant was “not smiling”.
[34] I respectfully disagree. This argument is simply a disagreement with the findings of fact made by the trial judge.
[35] The trial judge was entitled to accept all, part, or none of Constable Aguiar’s evidence regarding the indicia of impairment. The trial judge made his decision based on the totality of the evidence, as he was required to do: R. v. Martin, [2006] O.J. No. 4602, 40 M.V.R. (5th) 35 (C.A.). The Criminal Code does not prescribe a specific test for determining impairment. It is trite to say, but often forgotten, that the Crown need only prove each element of the offence beyond a reasonable doubt. The Crown is not required to prove each indicia of impairment beyond a reasonable doubt. Any degree of impairment from slight to great will be enough for a conviction: R. v. Stellato (1993), 1993 ONCA 3375, 78 C.C.C. (3d) 380, [1993] O.J. No. 18 (C.A.) at paras. 13-14.
[36] Of the nine indicia observed by Constable Aguiar and attacked by the Appellant, I will only deal with the “droopy face” and “smile” examples. Respectfully, there was there was nothing ludicrous about Constable Aguiar’s droopy face observation. There was also nothing ludicrous about the trial judge relying on it. A short excerpt is illustrative:
Q: Okay. So tell me, sir. I’ve never heard of this term before, and I’ve done a lot of these. What’s a ‘droopy face’?
A: A droopy face, his eyes were kind of half closed. There was kind of, like, his face – or is mouth was kind of turned down. He just kind of was, like – by face, as well, I’m taking into consideration his posture. His posture was kind of slumped over, which added to the droopy face.
Q: So – okay. Just so I’m clear on this. Droopy face means eyes half closed, mouth turned down, and posture slumped over?
A: Yes.
Q: What’s posture slumped over have to do with a face?
A: Well, because when he slumped over, his head and face are kind of forward.
[37] Although the word “droopy” is perhaps not particularly descriptive, Constable Aguiar was cross-examined on the points and explained what he meant. The trial judge was entitled to accept that evidence. It is difficult to see what, exactly, was ludicrous about it.
[38] The Appellant also contends that the “smile evidence” is also unreliable, for the same reasons. I note that it was the Appellant’s counsel who introduced the lack of a smile during cross-examination on the “droopy face” point. He then spent several pages of transcript delving into the details around the lack of a smile. The Appellant’s counsel was entitled to cross-examine on these points in order to test the reliability of Constable Aguiar’s evidence. The trial judge was equally entitled to find that the officer’s inability to articulate the exact the degree of droopiness was not something that impacted his reliability.
(c) Did the trial judge err with regard to the mouth alcohol issue?
[39] As noted, Constable Aguiar testified that he asked the Appellant whether he had had anything to drink in the previous 15 minutes. The Appellant denied it. Constable Aguiar did not believe him. Nonetheless, he administered the test. The Appellant argued that the trial judge erred by accepting Constable Aguiar’s testimony. The Appellant testified that he had consumed his last drink very shortly before being pulled over. The approved screening device result was therefore unreliable. Constable Aguiar should have waited 15 minutes before administering the test. Constable Aguiar did not have reasonable grounds to demand a sample for the approved instrument. The trial judge erred, he argues, by failing to accept this point.
[40] Again, I respectfully disagree. When a police officer makes a demand that a driver provide a sample for an approved screening device he or she may wait 15 minutes after the last drink. It is well-known that alcohol in the mouth may skew the results: R. v. Mastromartino, supra. The meaning of the term “forthwith” in s. 254(2) of the Criminal Code is to be given a flexible meaning: R. v. Bernshaw, 1995 SCC 150, [1995] 1 S.C.R. 254 at paras. 70-73. This means that a police officer may delay the taking of a breath sample where doing so will ensure an accurate result. The flexible approach focuses on the police officer’s belief as to the potential accuracy (or inaccuracy) of the test results. It must be determined on a case-by-case basis. The mere possibility that a driver has had a drink 15 minutes prior to the test does not invalidate an approved screening device result: R. v. Einarson (2004), 2004 ONCA 19570, 70 O.R. (3d) 286, 183 C.C.C. (3d) 19 (C.A.) at paras. 27 and 35.
[41] Constable Aguiar testified that he felt had to take the Appellant’s answer at face value – there was nothing to contradict the Appellant’s assertion that he had had nothing to drink in the previous 15 minutes.
[42] As I have already pointed out, the trial judge was entitled to accept the officer’s evidence and reject the Appellant’s evidence on this point. Not only that, but Constable Aguiar’s evidence made objective sense. The Appellant’s evidence did not. Constable Aguiar was manning a RIDE checkpoint during the holiday season. The sole purpose of a RIDE checkpoint is to check the sobriety of drivers: R. v. Dedman, 1982 SCC 24, [1982] 2 S.C.R. 2.
[43] As Sopinka J. pointed out at para. 61 of Bernshaw, the Appellant’s argument would put an officer in a no-win dilemma: acting on his hunch that the Appellant was lying about alcohol consumption would have caused him to delay the test. Failure to administer the test “forthwith” and not wait the 15 minutes would therefore invalidate the result. On the other hand, not waiting the 15 minutes meant that the result was invalid because, as the Appellant testified, he had recently had a drink. The presence of mouth alcohol would invalidate the result. That cannot have been Parliament’s intention in enacting the drinking and driving scheme of the Criminal Code. The Appellant’s argument here amounts to the classic “heads I win, tails you lose” scenario in described by Sopinka J.
[44] The trial judge determined that Constable Aguiar honestly and reasonably believed that the approved screening device result would be reliable without waiting for 15 minutes: Mastromartino, supra, at para. 23. Whether or not mouth alcohol would have showed the result is a question of fact. The trial judge is entitled to deference.
(d) Did the trial judge err in finding no Charter violation?
[45] The Appellant argues that if Constable Aguiar had reasonable grounds to believe that he was impaired, he should have arrested him or at least given him his rights to counsel and made an approved instrument demand. Instead, Constable Aguiar made an approved screening device demand. The Appellant failed, was arrested, and then given his rights to counsel. He contends that the period from reasonable grounds to actual arrest was an arbitrary detention. That, he says, violated s. 9 of the Charter. Constable Aguiar’s failure to advise the Appellant of his right to counsel until after he registered “fail” on the approved screening device violated s. 10(b) of the Charter. The breath samples were, therefore taken in violation of s. 8 of the Charter. Thus, Constable Aguiar committed three different Charter violations by making an approved screening device demand rather than an arrest. The trial judge, he argues, erred by failing to find that Constable Aguiar had committed these Charter violations.
[46] I disagree. The trial judge was correct that there was no Charter violation. I leave aside the irony of the Appellant arguing that he should have been immediately arrested while at the same time arguing that the officer did not have grounds to arrest him – an argument which would, if accepted, also amount to “heads I win, tails you lose”.
[47] In my respectful view, the key question is not whether an officer with reasonable grounds to arrest for impaired driving is prohibited from making an approved screening device demand. The key question is how long the police may detain a driver before providing the right to counsel in accordance with s. 10(b) of the Charter. In my respectful view, the trial judge correctly held that the officer waited no longer than necessary to advise the Appellant of his s. 10(b) rights. It was a reasonable limit on the right, demonstrably justified.
[48] The Criminal Code has a two-stage process for the investigation of drinking and driving offences. Under the first stage, where a police officer suspects that a motorist has alcohol in his or her body he or she may demand a breath sample for an approved screening device: s. 254(2). If the driver registers a “fail” then that may provide a police officer with reasonable grounds to arrest that person for a drinking and driving offence under s. 253(1) of the Criminal Code. Where a police officer demands a breath sample for an approved screening device, the driver is detained. That detention is authorized by law. The officer is not, however, required to provide rights to counsel under s. 10(b) of the Charter: R. v. Thomsen, 1988 SCC 73, [1988] 1 S.C.R. 640. The second stage then occurs when the police officer makes an arrest and a demand for a breath sample for an approved instrument. The approved instrument actually measures blood alcohol content. It is at this point that the usual rights to counsel must be given without delay: R. v. Grant, 1991 SCC 38, [1991] 3 S.C.R. 139 at paras. 17-19.
[49] Doherty J.A. succinctly summarized the steps in the investigative process in Einarson, supra, at paras. 11-14. At para. 11 he noted that the approved instrument results may be admissible on either a charge of impaired driving or “over 80”.
[50] In my view the analysis here is governed by the Ontario Court of Appeal’s decision in R. v. Smith (1996), 1996 ONCA 1074, 28 O.R. (3d) 75, [1996] O.J. No. 372, 105 C.C.C. (3d) 58 (C.A.). The officer observed a vehicle cross the centre line of the road. He suspected the driver had been drinking. The officer noted alcohol on his breath. He had grounds to make an approved screening device demand, but he still required the driver to perform sobriety tests anyway. The driver failed. He then made the roadside screening demand. The driver failed that, too. The officer then arrested the driver and gave him his s. 10(b) rights. The driver argued (among other things) that the officer’s use of multiple investigative techniques violated s. 10(b) of the Charter, and that the violation could not be justified under s. 1.
[51] Doherty J.A. analyzed the question in two parts: first, whether the techniques that limited rights under s. 10(b) of the Charter were authorized by law; and second, whether the limit was a reasonable one that could be justified in a free and democratic society. He determined that s. 48 of the Highway Traffic Act (as it then was) authorized the officer to take “reasonable steps to determine whether there is evidence to support an A.L.E.R.T. or breathalyser demand.” Those steps included the investigative techniques used under s. 48 of the Highway Traffic Act. Doherty J.A. then determined at para. 39 that the techniques were justified under s. 1 of the Charter:
Whether the officer takes one reasonable investigative step or more than one, the nature and quality of the s. 10(b) infringement will not change. In all cases, the detainee will be denied the right to counsel for that brief period during which the officer attempts through reasonable investigative techniques to determine whether there are grounds to arrest the appellant and make a breathalyzer demand. In Thomsen, supra, it was held that the period during which the detainee may be constitutionally denied the right to counsel extends through the administration of the A.L.E.R.T. test. I cannot see how s. 48 of the H.T.A., which authorizes investigative steps that are no more intrusive than the A.L.E.R.T. test, does not meaningfully prolong the detention, and does not alter the potential consequences of the detention to the detainee, could be said to result in an unconstitutional denial of the right to counsel. The nature and scope of the s. 10(b) violation under s. 48 of the H.T.A. is no greater than that countenanced under the existing case-law. The prior decisions of the Supreme Court of Canada and this court leave no doubt that the denial of counsel implicit in the proper exercise of the investigative powers granted under s. 48 of the H.T.A. is justified under s. 1 of the Charter. [emphasis added]
[52] The driver in Smith also argued that the because the officer administered sobriety tests before the roadside screening demand, the breath samples were not taken “forthwith” as required by s. 254(2) of the Criminal Code. Doherty J.A. rejected that argument. The sobriety tests took three minutes. The approved screening device test only took another three minutes.
[53] The Supreme Court expressly approved Smith in R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3. In that case, the Court considered when the right to counsel under S. 10(b) of the Charter arose in the impaired driving context. The Court found that each case turns on whether the particular limit on the right to counsel is reasonable and justified in a free and democratic society.
[54] The reasoning in Smith applies here. There is no doubt that in this case the Appellant was detained for the purposes of s. 10(b) when he was stopped. Constable Aguiar was clearly authorized to take the investigative steps that he did. He was not required to give the Appellant his rights under s. 10(b) while he took those steps. The total time period between being pulled over and giving his right to counsel was eight minutes. During those eight minutes the officer conducted an investigation, made an approved screening device demand, formed reasonable grounds, administered the approved screening device test, and made an approved instrument demand. No admissible self-incriminatory evidence was obtained from the Appellant during those eight minutes: R. v. Milne (1996), 1996 ONCA 508, 28 O.R. (3d) 577, [1996] O.J. No. 1728 (C.A.). The limit on the Appellant’s right to counsel was fleeting and minimal. In my view, the trial judge was correct to find that the limit was reasonable and justified in a free and democratic society. Furthermore, administering the roadside screening test did not prevent the breath samples for the approved instrument from being taken forthwith, as required by s. 254(2).
[55] Ultimately there is no “bright-line” beyond which an officer must stop what he or she is doing and provide s. 10(b) rights. Each case must be evaluated to determine whether the particular limit on the right is, in the circumstances, a reasonable one that can be justified in a free and democratic society.
[56] The Appellant relies on a line of cases in the Ontario Court of Justice. These cases hold that a police officer who makes an approved screening device demand where he or she has reasonable grounds to make an approved instrument demand breaches sections 8, 9, and/or 10(b) of the Charter. To the extent that these cases suggest that a “bright line” exists, I disagree.
[57] In R. v. Gruytheuyzen, 2013 ONCJ 188 the accused was involved in a motor vehicle accident. He admitted that he had been drinking. One police officer believed that Mr. Gruytheuyzen was impaired. Another police officer believed that “maybe there was some impairment.” The first police officer had reasonable and probable grounds to make a breath demand for an approved instrument. Instead he read a demand for an approved screening device, to exclude the possibility of impairment by drugs. Since he already had reasonable grounds, he did not need to make a roadside screening demand. The trial judge found that, because of the extra step, the samples were not taken as soon as practicable. Thus, the demand was not properly made. Mr. Gruytheuyzen did not provide a proper sample and was charged with refusal. Since the demand was not properly made, the refusal was not a crime.
[58] In R. v. Perrie, [2013] O.J. No. 3485 (O.C.J.) the accused argued that because the officer had reasonable grounds to make an approved instrument demand, he should not have made an approved screening device demand. The trial judge, Crawford J., agreed that the officer had objective reasonable grounds to find that the accused was impaired (although the officer testified that he did not have subjective grounds). Crawford J. found that the seizure of the breath samples violated s. 8 of the Charter. The officer did not provide the accused with his rights to counsel because of the approved screening device demand. Since the demand was unnecessary, and the accused was detained, there was a violation of s. 10(b) of the Charter as well.
[59] The Appellant also relies on R. v. Dignum, [2012] O.J. No. 5074 (O.C.J.). A police officer received a report of a possible impaired driver. The officer located the vehicle driving on Highway 407. He observed the accused’s driving. Except for some swerving, his driving and speed were acceptable. He pulled the accused over anyway due to the swerving and the report. He detected alcohol on the accused’s breath. The accused admitted having had three or four drinks, with the last drink one hour previously. The officer formed the suspicion that the accused’s ability to drive was impaired. He made an approved screening device demand. The accused’s first two samples registered an “error”. The officer warned the accused about the consequences of failing to properly blow. The accused then provided a third sample. The machine registered an “F”. The officer felt that he did not have reasonable grounds to arrest for “over 80” until the “F”. He did not feel he had reasonable grounds to arrest for impaired driving at all. On cross-examination, the officer was confronted with the approved screening device manual. He admitted that he made a mistake in his testimony about how “error” was registered. When asked about the “F” he said “I am as sure that I got an ‘F’ as I am about the ‘E’”.
[60] The officer also testified that he had a reasonable suspicion that the accused’s ability to operate a motor vehicle was impaired by alcohol. That, the defence argued, was not the standard mandated by Parliament for an approved screening device demand. The standard is a reasonable suspicion that a person has alcohol in the body: Criminal Code, s. 254(2). The trial judge accepted that argument and found that the officer did not have requisite grounds. Accordingly, the request for a sample for an approved screening device demand was a violation of s. 8 of the Charter.
[61] With great respect, I have some difficulty with that aspect of the decision in light of R. v. Shouten, 2016 ONCA 872. I recognize that the case pre-dates Shouten but I also have some difficulty with it by the standards of R. v. Lindsay, 1999 ONCA 4301, [1999] O.J. No. 870, 134 C.C.C. (3d) 59 (C.A.). It is reasonable to suspect that a person whose ability to drive is impaired by alcohol, whose breath smells like alcohol, and has admitted having had three or four drinks has alcohol in their body for the purposes of s. 254(2). The officer obviously articulated his grounds incorrectly. That said, parsing the words of a police officer as a Talmudic scholar would parse an Old Testament passage serves no legal or policy purpose. The law is very clear that an officer is not required to use any particular words when articulating the basis for an approved screening device demand: R. v. Martin, [2005] O.J. No. 670 (Sup.Ct.) at para. 15.
[62] In any event, the trial judge in Dignum then went on to determine whether the officer had reasonable grounds to make a demand for an approved instrument. The officer did not testify as to his subjective view of the meaning of “F” on the approved screening device. Absent the failure of the approved screening device, the officer would have had no grounds to arrest for “over 80”. Accordingly, the trial judge was of the view that there was no evidence that the officer had reasonable grounds to make an approved instrument demand. The breath readings were excluded.
[63] On appeal, the Summary Conviction Appeal judge simply stated in a one-line oral judgment that he agreed with the trial judge’s conclusions regarding the “F”. The Crown sought leave to appeal to the Court of Appeal but did not file a Notice of Appeal in time. The Crown therefore brought a motion for an extension of time. Goudge J.A. dismissed the motion. He found that the Crown had acted with due diligence. He did not, however, agree that there was a clear error of law or that the decision had significance to the broader administration of justice. Goudge J.A. did not deal directly with the Charter issue in dismissing the leave application, except to say that he saw no error in the trial judge’s s. 24(2) analysis. Thus, neither the Superior Court nor the Court of Appeal decided the Charter issue that is before this Court.
[64] The trial judge in this case followed a contrary decision. In R. v. Dunphy, 2012 ONCJ 492. A police officer heard a report of a possible impaired driver on Highway 17. He found the vehicle. He observed that it was swerving and crossed over the centre lane. He pulled over the vehicle, although the driver, Ms. Dunphy, didn’t stop for ¾ of a kilometer. He detected an odour of alcohol on her breath. She had difficulty finding her wallet and was unsteady on her feet. The officer made an approved screening device demand although he had already formed reasonable grounds to believe that she was impaired. She failed to blow properly despite numerous opportunities. The officer arrested her for impaired driving and refusal to provide a breath sample.
[65] On the issue of impairment, the trial judge accepted the evidence of the officer and rejected the evidence of Ms. Dunphy. He found her guilty of impaired driving. He based the conviction only on the officer’s observations until the approved screening device demand.
[66] Ms. Dunphy’s lawyer brought a motion to exclude the evidence in relation to the charge of refusal to provide a breath sample. Counsel argued, as the Appellant does here, that once the officer had reasonable grounds to arrest he should have held off collecting any further evidence until he had provided Ms. Dunphy her s. 10(b). Selkirk J., the trial judge, conducted a detailed analysis of the circumstances under which rights under s. 10(b) of the Charter are engaged. He noted that the ability of the police to use an approved screening device without providing Charter rights was a reasonable limit on the right to counsel where a driver is detained: R. v. Orbanski; R. v. Elias, supra. The right to counsel is engaged where a driver is in immediate need of legal advice. That legal advice is engaged where the police can collect self-incriminatory evidence. Since the approved screening device cannot provide incriminating evidence, the right to counsel cannot be engaged. He dismissed the Charter motion.
[67] I agree with Selkirk J.’s analysis for both theoretical and practical reasons. Selkirk J. identified, as a practical matter, that a police officer will undoubtedly find his or her grounds under attack in every impaired case. I agree with Selkirk J.’s colourful – and accurate – comment:
The problem can be simply stated. What is an officer to do? It is fine for him or her to say, "I subjectively believe an offence has been committed," but that is only the first step in the test to establish if reasonable and probable grounds did in fact exist. The second part is whether that belief is objectively reasonable. How does the officer address that aspect at the roadside? He or she knows that months down the road, at trial, every word, every movement, every inference will be mercilessly dissected for any possible errors or frailties by persons skilled in vivisection.
[68] That, of course, is what happened in this case. Constable Aguiar made an approved screening device demand but continued to observe the Appellant. He eventually concluded that the Appellant was impaired. His grounds evolved as he had more dealings with the Appellant. It is true that the officer denied that he used the screening device to confirm impairment, but was he required to stop and instead make an approved instrument demand, knowing full well that he would be second-guessed as to his evolving grounds? Or complete his original plan and conduct the screening, which took only a matter of a few minutes? This is not a case like Grant, supra, where the accused waited 30 minutes by the roadside while the police brought a screening device. The police must have some flexibility: Bernshaw at paras. 70-73. As Charron J. observed in Orbanski at para. 26, “the aim is to screen drivers at the road stop, not at the scene of the accident.”
[69] Moreover, it must be noted that the use of the approved screening device might have actually helped the Appellant. Constable Aguiar candidly admitted that he would have let the Appellant go if he had passed the approved screening device test. That point may speak to whether the officer had reasonable grounds, but it must be remembered that reasonable grounds is not the same as beyond a reasonable doubt.
[70] Ultimately, it is hard to see in this case how the delay caused by the approved screening device had any real impact on the Appellant’s Charter right under s. 10(b). He was processed with remarkable speed. He was flagged down at 9:50. He failed the approved screening device at 9:56. At 9:58 Constable Aguiar arrested him. He made a phone call to his wife at 10:03 pm and his lawyer at 10:11 pm. He spoke to the lawyer until 10:29 pm. He provided his first sample for the approved instrument at 10:44 pm.
[71] Looked at another way, the Appellant was talking to his wife (in order to get the name of a lawyer) within 13 minutes of having contact with the police. He was talking to a lawyer within 21 minutes of first having contact with the police. No self-incriminatory evidence was compelled from him in that 21-minute period. He went from that first contact with the police to providing a breath sample for the approved instrument in just 54 minutes – and more than half of that time was taken up talking either to his wife or his lawyer. If that is not “no more than necessary to meet the objective” (Orbanski at para. 57) then nothing will be. The three minutes it took for the officer to conduct the test were reasonable and demonstrably justified in a free and democratic society.
[72] I do not need to consider s. 24(2) of the Charter. The trial judge did not err in finding that there was no violation. Even if there had been, it was technical and fleeting. In my respectful view, the violation would not result in exclusion: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. Indeed, this is one of those cases where I think that exclusion of the evidence would bring the administration of justice into disrepute. It would amount to finding that the Appellant was arbitrarily detained for three minutes while an officer conducted an approved screening test, a test that actually could have benefitted the Appellant. Under these circumstances, a process that excluded breath results resulting in the acquittal of a man with more than twice the legal limit in his body would most certainly bring the administration of justice into disrepute.
Disposition
[73] The Appeal is dismissed.
R.F. GOLDSTEIN J. Released: April 18, 2017