Court File and Parties

Court File No.: 50/16 Date: 2017 04 21 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Respondent – and – Allen Taylor, Appellant

Counsel: D. King, for the Crown A. Gold and M. Austen, for the Appellant

Heard: January 16, 2017

Reasons for Judgment on Summary Conviction Appeal

Woollcombe J.

A. Introduction

[1] Allen Taylor appeals from his conviction for operation of a motor vehicle while impaired by alcohol, contrary to s. 253(1)(a) of the Criminal Code.

[2] The appellant was charged with both operating a motor vehicle while impaired, pursuant to s. 253(1)(a) of the Criminal Code and with operating a motor vehicle having consumed alcohol such that his blood alcohol exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(1)(b).

[3] At trial, the appellant brought an application to exclude the results of the intoxylizer tests pursuant to s. 24(2) of the Charter. Counsel agreed that the trial would proceed as a blended hearing in which the evidence adduced would be admitted on both the Charter application and the trial.

[4] It was the appellant’s position on the voir dire that the breath results should be excluded under s. 24(2) because of the following Charter breaches:

a. A s. 8 violation said to flow from the police lacking reasonable and probable grounds to make a breath demand and then obtaining breath samples;

b. A s. 9 breach said to result from the appellant’s arbitrary detention;

c. A s. 10(a) breach said to result from the police not informing the appellant of the reasons for his detention; and

d. A s. 10(b) breach said to have been caused by the police not taking the steps necessary to allow Mr. Taylor to exercise his right to counsel.

[5] The offences were alleged to have taken place on November 1, 2013. On the voir dire, the Crown called evidence from two witnesses to the appellant’s driving (911 caller Jeremy Perrin and tow truck operator Dilraj Dhaliwal) and three officers. (arresting Officer Constable Conant, Officer Crossfield and breath technician Torry Wentzell). The accused, Mr. Taylor testified on his own behalf, for purposes of the voir dire.

B. Findings of the trial judge

[6] After carefully reviewing the evidence, the trial judge held that Constable Conant believed, on reasonable and probable grounds, that the appellant had been operating his motor vehicle while impaired by alcohol and that this belief was objectively reasonable. This resulted in a conclusion that there was no violation of s. 8 or 9 of the Charter.

[7] In relation to the s. 10(a) claim, the trial judge found that Constable Conant advised the appellant promptly of his reason for stopping and detaining him and informed him promptly of the reason for his arrest.

[8] In relation to the alleged s. 10(b) violation, the trial judge held that the accused was properly advised of his right to counsel. However, the trial judge was not satisfied that the police took reasonable steps to allow the accused to exercise that right. More specifically, the trial judge found that the accused had not spoken to counsel because he did not believe he needed to, but had not unequivocally waived his right to do so. In these circumstances, the officer should have advised him of the result of the first test, and that he had blown “over 80”, so that the accused could make an informed decision as to whether to contact counsel at that point.

[9] When he considered whether to exclude the breath samples under s. 24(2), the trial judge set out the factors identified by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32. He found that the breach was serious and that this was a factor favouring exclusion of the evidence. He found that the breath test was minimally intrusive. In relation to the third factor, he found that the offence was serious and that the evidence was reliable. He held that the truth-seeking function would be better served by the admission of the evidence. At the same time, he held that the long-term interests of the administration of justice were better served by the exclusion of the evidence. Highlighting that only the second breath test took place after the Charter breath breach, the trial judge concluded that the results of the second breath test would be excluded. As a result, the presumption of reliability and identity did not apply and the “over 80” charge was dismissed.

[10] The trial judge then considered whether the evidence supported a conviction for impaired driving. He began by setting out the test for impairment as established in R. v. Stelatto, [1993] O.J. No. 17 (C.A.), (1993), 12 O.R. (3d) 90 at para. 14; affirmed , [1994] 2 S.C.R. 478. The evidence in this case included the testimony of two eyewitnesses to the driving and the observations of the arresting officer and other officers who dealt with the appellant after he had stopped driving. After reviewing the body of evidence before him, the trial judge concluded that the accused’s ability to operate a motor vehicle had been impaired by alcohol.

C. Issues

[11] The appellant advances the following grounds of appeal:

a. Did the trial judge err in concluding that only the second breath test could be excluded under s. 24(2) of the Charter?

b. Did the trial judge err in finding that the Crown had proven the impaired driving beyond a reasonable doubt?

D. Analysis

a) Did the trial judge err in concluding that only the second breath test could be excluded under s. 24(2) of the Charter?

[12] The appellant submits that the trial judge, who did not have the benefit of the Court of Appeal’s recent decision in R. v. Pino, 2016 ONCA 389, erred in concluding that only the second breath sample, which was taken after the Charter violation, could be excluded from evidence as a result of the s. 10(b) breach. It is the defence position that the more recent authority makes clear that the trial judge could also have excluded the first breath sample. Further, the appellant submits that he should have done so.

[13] In Pino, the Court of Appeal considered whether evidence obtained prior to a s. 10(b) breach could be excluded under s. 24(2) of the Charter. Writing for the Court, Laskin J.A. summarized at para. 72 the considerations that should guide the court’s approach to whether evidence was “obtained in a manner” as required by s. 24(2) of the Charter:

Based on the case law, the following considerations should guide a court's approach to the "obtained in a manner" requirement in s. 24(2):

• The approach should be generous, consistent with the purpose of s. 24(2)
• The court should consider the entire "chain of events" between the accused and the police
• The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct
• The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections.
• But the connection cannot be either too tenuous or too remote.

See also R. v. Poirier, 2016 ONCA 387.

[14] It seems from his reasons that the trial judge believed that he could only consider the admissibility of the second breath sample, which followed the Charter breach. The Court of Appeal has now clarified that this approach was incorrect.

[15] The parties take different positions as to the impact of this error.

[16] The Crown acknowledges the trial judge’s error in approach, and submits that it is open to me to consider the s. 24(2) issue afresh. The Crown says that the finding by the trial judge of a s. 10(b) breach was “generous” and that on a proper s. 24(2) analysis, the first breath sample should be admitted.

[17] As I understand the appellant’s position, it is that but for the Pino error, the trial judge would have excluded both of the breath samples. He says that without the first reading, the trial judge would have had a real doubt about impairment and would have acquitted. He submits that I should enter an acquittal. The alternative position advanced by the appellant is that if I agree that the trial judge erred on the s. 24(2) analysis, I should remit this to the trial court for a proper s. 24(2) analysis, and then a determination of the impaired issue. In the further alternative, the appellant says that I could consider the s. 24(2) analysis myself.

[18] Given the s. 24(2) error that has been conceded, I am well-positioned to consider the s. 24(2) issue on appeal. The law is clear that when a reviewing court finds error in the s. 24(2) analysis of the court below, the court is invited to re-open and to re-consider the analysis: R. v. Jones, 2011 ONCA 241 at para. 27; R. v. Rocha, 2012 ONCA 707 at para. 30. I view this as a more efficient manner in which to proceed than to remit this back to the trial judge to re-consider the s. 24(2) issue and the analysis on the impaired count.

[19] In my opinion, given the trial judge’s factual findings, a proper s. 24(2) analysis should lead to the exclusion of both breath samples. I say this having regard to my own analysis of the Grant factors.

Seriousness of the Charter-infringing state conduct

[20] The trial judge found as a fact that Constable Wentzell deliberately withheld from the appellant information that he needed in order to make an informed decision with respect to his right to counsel. He concluded that this factor favoured exclusion.

[21] The appellant says that the trial judge did not do justice to the seriousness of the breach. The Crown submits that this breach was due to police inadvertence or carelessness.

[22] Given the trial judge’s characterization of the conduct of the officer, this breach was serious and favours exclusion.

Impact of the breach on the Charter-protected interests of the accused

[23] When he considered this branch of the test, the trial judge found that the taking of the breath test was minimally intrusive.

[24] The appellant submits that the trial judge failed to appreciate that the violation was of the right to counsel, a s. 10(b) violation, and not an intrusion of bodily integrity or a s. 8 violation. The Crown responds that the violation here impacted on the appellant’s ability to make an informed decision as to whether or not to consent to the breath test. The Crown says that the taking of the breath sample falls at the relatively less intrusive end of the spectrum of potential invasions of privacy.

[25] I accept the appellant’s position that in the passage from para. 111 of the Grant decision, upon which the trial judge relied, Charron J. was not purporting to provide a comprehensive catalogue of all “breach impact considerations in breath sample cases”. I agree with the comments made by Paciocco J., as he then was, in R. v. Steele, 2014 ONCJ 583, [2014] O.J. No. 5269 at paras. 53-57, that where an accused is deprived of the right to counsel before providing a breath sample, the impact of the Charter infringing conduct on an accused cannot be trivialized. See also: R. v. Olive, 2016 ONCJ 558, [2016] O.J. No. 4731 at paras. 42-43.

[26] I do not accept that the Charter infringing state conduct was minimally intrusive. It was real and meaningful.

Society’s interest in the adjudication of the case on its merits

[27] When considering this factor, the trial judge recognized that the offence was serious and that the evidence was reliable. He found that the truth-seeking function would be better served by admission of the breath sample than by its exclusion. However, when he considered the long-term interests of the administration of justice, he held that they were better served by exclusion of the evidence. It was at that point that he drew the distinction between the first breath sample, taken before the violation, and the second breath sample, which followed the violation.

[28] I see no error in the trial judge’s analysis respecting the long term interests in the administration of justice.

[29] The next question is whether the trial judge should have excluded from evidence the first breath sample as well as the second one. The law clearly permits exclusion of the first breath sample, notwithstanding that it preceded the Charter breach.

[30] The first sample was taken at 12:34. The second was at 12:56, only twenty-two minutes later. There is a close temporal nexus between the second breath sample, taken after the breach of s. 10(b), and the first breath sample, taken twenty-two minutes earlier.

[31] The trial judge found that the officer knew that the appellant had failed the first breath test, and, therefore, that the appellant’s stated assumption that he did not need to speak with counsel because he was not “over 80” was wrong. The trial judge found that the officer knew that the appellant would likely change his mind about speaking with counsel if he was told of the first breath result. The trial judge found that the officer then deliberately withheld from the appellant the information that he needed to make the decision as to whether he would speak with counsel.

[32] When I consider the entire chain of events, which I see as a single transaction over a short time period, I conclude that both breath samples should be excluded under s. 24(2). I think the long-term integrity of the administration of justice suffers when police intentionally withhold from an accused person the very information that the officer knows is critical to the accused making an informed decision about whether to exercise the right to counsel.

[33] I do not accept the Crown’s position that it is nonsensical to exclude the first breath sample when it preceded the Charter breach.

[34] I would exclude from evidence both of the breath samples.

[35] Because I conclude that the trial judge should have excluded both breath samples, I do not find it necessary to address the appellant’s argument that the trial judge should have found a s. 10(b) violation in relation to the first sample.

b) Did the trial judge err in finding that the Crown had proven the impaired driving beyond a reasonable doubt?

[36] The appellant makes two arguments about the trial judge’s findings in relation to the impaired driving charge.

[37] First, the appellant argues that the trial judge improperly considered the first breath test, and that had he excluded it, he would not have found the appellant guilty beyond a reasonable doubt.

[38] Second, he argues that the trial judge’s approach to this issue reflects error. The appellant submits that the trial judge set out factors that he found were “consistent with” impairment and then, after reviewing a number of exculpatory factors, concluded that he was satisfied of the accused’s guilt beyond a reasonable doubt. It is argued that there is nothing in the reasons that would move a finding of “consistent with” impairment to a conclusion of proof beyond a reasonable doubt. I understand the appellant to argue that the evidence a whole was inconsistent with impairment and that the trial judge should have specifically addressed exculpatory factors such as the fact that Officer Crossfield did not smell the odour of alcoholic beverage on the appellant’s breath.

[39] I accept the appellant’s argument that the trial judge should not, in light of a correct s. 24(2) analysis, have considered the first breath sample as confirmation of the consumption of alcohol by the appellant. However, I find that the trial judge placed little if any reliance on this evidence in reaching his conclusion that the impairment had been proven beyond a reasonable doubt.

[40] Before referring to the breath test, the trial judge expressly mentioned Constable Conant’s evidence of having smelled the odour of alcohol on the appellant’s breath. He was entitled to rely on this evidence for this purpose. The trial judge then mentioned the result of the first breath test. It is clear from the trial judge’s reasoning that he was using this evidence only “as confirmation of consumption of alcohol” by the appellant, and not as evidence about how much the appellant consumed or what effect it had on him.

[41] Given that there was other independent evidence that the appellant had consumed alcohol, I think any reliance placed by the trial judge on the first breath test was really of no consequence in the determination that the Crown had proven the impairment beyond a reasonable doubt. I see no reason to follow the appellant’s suggestion that the matter be remitted to the trial judge for an assessment of the impaired issue without reliance on the breath test.

[42] I also see no error in the trial judge not addressing, in detail, the fact that there was some evidence that may, arguably, have been inconsistent with impairment by alcohol. In particular, I do not think the trial judge was required to specifically mention, in the section of his reasons dealing with the impaired count, that Constable Crossfield did not observe the odour of alcohol on the appellant’s breath. The trial judge had referred to the fact that Constable Crossfield was not asked about the presence of alcohol on the appellant’s breath earlier in his reasons. He was obviously aware of this fact. I do not accept the appellant’s position that I must consider the reasons in separate segments and am precluded from considering the earlier paragraphs in the judgment when considering his arguments about the finding of impairment.

[43] Finally, while the appellant suggests that the path taken by the trial judge from evidence said to be “consistent with” impairment, to a finding of impairment beyond a reasonable doubt was not available, I disagree. Reasons for judgment must be read as a whole and not microscopically parsed. On the evidentiary record before him, the trial judge did not err in concluding that the Crown had proven beyond a reasonable doubt that the accused’s ability to drive was impaired by alcohol.

[44] I do not accept the appellant’s submission that he cannot understand why he was convicted. As the trial judge made clear, he had before him compelling evidence from:

• Mr. Perrin relating to the appellant’s erratic driving over a twenty kilometer drive;
• Mr. Dhaliwal about the erratic driving and weaving back and forth;
• The appellant’s odd decision to pull into a mall parking lot rather than to call the police or pull into a gas station when he was being followed;
• Constable Conant’s evidence that the appellant had the odour of alcoholic beverage on his breath, that he had red glossy eyes, that he stuttered slightly, that he slurred his speech with some words running into each other and that he appeared frustrated when he looked through his wallet for the documents that the officer had requested.
• While Constable Crossfield did not testify about observing alcohol on the appellant’s breath or about the appellant’s eyes, he was not asked any questions about this issue. He also testified about the difficulties that the appellant had in locating his documents.
• While Constable Wentzell noted in his chart of observations at the police station that the odour of alcohol on the appellant’s breath at the police station was “absent”, he also observed that the appellant’s face was “flushed” and his eyes were “red-rimmed”. Additionally, he recorded that the appellant was “hiccupping” and “belching”.

[45] The law is clear that “impairment may be established where the prosecution proves any degree of impairment proved from slight to great”: R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 at para. 48; R. v. Stelatto at para. 14. I find that the Crown’s case on the impairment charge was strong. The trial judge made no error in finding that the evidence, as a whole, established some degree of impairment on the part of the appellant. Furthermore, he set out adequately why he reached the conclusion that the Crown had proven impairment.

E. Conclusion

[46] For the reasons set out above, the appeal is dismissed.

Woollcombe J.

Released: April 21, 2017