CITATION: R. v. MacIntosh, 2017 ONSC 3287
BRACEBRIDGE COURT FILE NO.: CR-16-12-00AP
DATE: 20170529
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KEITH MacINTOSH
Appellant
D. Kasko, for the Crown
D. North, for the Appellant
HEARD: April 28, 2017
REASONS FOR DECISION
On appeal from the decision of The Hon. Mr. Justice John Evans
Dated June 27, 2016
MULLIGAN J.:
[1] Keith MacIntosh (the appellant) appeals his convictions for the offences of impaired driving and driving while "over 80", as the result of the judgment of His Honour Justice Evans after a trial on June 22, 2015 and November 16, 2015. Following the trial, counsel were invited to make written submissions and judgment was rendered on the 27th day of June 2016. Justice Evans concluded that Mr. MacIntosh was guilty on both counts but stayed Count 1, impaired driving, and entered a conviction for Count 2, "over 80".
[2] The basis of the appellant's appeal is captured in para. 1 of his factum:
It is alleged that the trial judge provided insufficient reasons in relation to the impaired driving count. With respect to the "over 80" count, it is alleged that the trial judge erred in dismissing a s. 8 Charter motion, and ought to have excluded the evidence of the appellant's breath readings pursuant to s. 24(2).
[3] The Crown's position is that when the Reasons are read as a whole, the Reasons fulfill a functional and context specific approach. The Crown submits that there was no s. 8 Charter breach, as the breath demand was made as soon as practicable. Alternatively, the Crown submits that if there was a breach of Mr. MacIntosh's s. 8 Charter rights, the learned trial judge made no error by considering a s.24 analysis and indicating that he would allow the admission of the evidence, the impact of the breach being less serious and the exclusion of this evidence would have brought the administration of justice into disrepute.
The Background Facts
[4] Aspden Road in Muskoka was snow-covered on the evening of January 20, 2014. The temperature was -9 Celsius. Snowbanks lined the side of the road.
[5] Ryan Wilson was driving along Aspden Road when the appellant's vehicle passed him. A short time later, he saw the appellant's vehicle stuck in a snowbank and he stopped to assist. Robert Bowles also stopped to offer assistance. Both these civilians thought that Mr. MacIntosh showed signs of drinking. 911 was called.
[6] The O.P.P. dispatched two officers to the scene. P.C. Lacroix arrived at 7:25 p.m. He saw the vehicle in a snowbank and made observations about Mr. MacIntosh's condition. P.C. Fenton then arrived and also made some observations about Mr. MacIntosh. P. C. Lacroix invited Mr. MacIntosh to come into the police vehicle because of the outdoor temperature and for safety reasons. He made further observations about Mr. MacIntosh's condition. As a result, he arrested him for impaired driving. He then read rights to counsel and the standard caution. Although the closest detachment was Huntsville, he was instructed to take Mr. MacIntosh to the O.P.P. detachment in Bracebridge, where a breath technician was on duty. A few minutes later and partway through the drive, Const. Lacroix realized he had forgotten to read a breath demand at the scene. He stopped his cruiser along Aspden Road and read a s. 254(3) breath demand to Mr. MacIntosh. He then took him to the detachment. Const. Jason Kuehni, a qualified breath technician, read a further s. 254(3) breath demand following his own observations of Mr. MacIntosh's condition. Prior to this demand, Mr. MacIntosh spoke to counsel of his own choosing. As a result of the two breath samples, Mr. MacIntosh's results were 138 and 129 milligrams of alcohol in 100 millilitres of blood.
[7] The following timelines will assist:
7:25 p.m. Const. Lacroix arrives at the scene.
7:36 p.m. Const. Lacroix places Mr. MacIntosh under arrest.
7:40 p.m. Const. Lacroix reads Mr. MacIntosh his rights to counsel.
7:43 p.m. Const. Lacroix reads a caution to Mr. MacIntosh.
7:45 p.m. Const. Lacroix departs the scene with Mr. MacIntosh, but returns moments later to turn over Mr. MacIntosh's vehicle keys to those assisting at the scene.
7:51 p.m. Const. Lacroix stops further along Aspden Road to read Mr. MacIntosh a breath demand.
9:04 p.m. Mr. MacIntosh is turned over to the breath technician, Const. Kuehni.
9:06 p.m. Const. Kuehni reads Mr. MacIntosh a breath demand.
9:17 p.m. Mr. MacIntosh provides his first sample.
9:41 p.m. Mr. MacIntosh provides his second sample.
The Trial Judge's Decision
[8] Having received written submissions from both counsel, the trial judge gave an oral decision. The 20-page transcript was made part of the Appeal Book. The trial judge reviewed the evidence of the two civilians who saw Mr. MacIntosh on-scene, as well as the evidence of two police officers on-scene and the breath technician officer.
[9] After considering the evidence-in-chief and the cross-examination of these witnesses, His Honour concluded, "I am therefore satisfied that Const. Lacroix had reasonable and probable grounds to arrest the accused and to make the breath demand of him."
[10] With respect to the delay in reading the demand, His Honour considered all of the circumstances and noted:
"As I understand the officer's evidence, it appears that due to all of the circumstances at the scene, he forgot to read the breath demand, and when he realized his mistake, he pulled the cruiser over into a safe location and read the demand to the accused. This was 15 minutes after the arrest of the accused, 11 minutes after the accused was advised of his right to counsel, and eight minutes after the accused was cautioned.
[11] After considering the s. 253(3) requirement that the demand be made as soon as practicable, His Honour stated:
I find that the demand, in all of the circumstances here, was made within a reasonably prompt time. I do not find it unreasonable that the officer would forget to read the demand after he had left his cruiser to search for the accused's cell phone which contained the name of his lawyer, combined with all of the other activity taking place at the scene, which scene the officer felt was less than safe. Upon realizing his mistake, he pulled his vehicle into a safe location and read the demand eight minutes later.
[12] His Honour then considered a Grant analysis based on R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, to determine whether or not the breath tests ought to be excluded if there was a breach of s. 8. After considering the seriousness of the breach, the impact of the breach on Mr. MacIntosh's Charter protected interests and society's interest in adjudication on the merits His Honour stated:
On balance then, it is my view that the long-term repute of the administration of justice clearly favours the admission of the intoxilyzer's results into evidence and the Charter application for exclusion will be dismissed.
[13] The trial judge concluded his reasons by stating:
With respect to the last issue that there is not proof beyond a reasonable doubt of impaired care or control, this court is satisfied on the totality of the evidence before it, beyond any reasonable doubt, that on the day in question, the accused's ability to operate a motor vehicle was impaired by alcohol and that he was in care or control of the vehicle at the time.
Analysis
[14] One of the grounds for appeal as argued at the hearing was the defence submission that the Reasons of the summary conviction judge were insufficient to support his conclusion that the appellant's ability to operate a motor vehicle was impaired by the consumption of alcohol. Both Crown and defence made reference to the Supreme Court of Canada decision, R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869. In speaking for the Court, Binnie J. stated at para. 24:
The requirement of reasons is tied to their purpose and the purpose varies with the context. At the trial level, the reasons justify and explain the result. The losing party knows why he or she has lost. Informed consideration can be given on grounds for appeal. Interested members of the public can satisfy themselves that justice has been done, or not, as the case may be.
[15] In Sheppard, at para. 32, Binnie J. made reference to the comments of McLachlin J. in an earlier decision of the Supreme Court of Canada, R. v. Burns, 1994 127 (SCC), [1994] 1 S.C.R. 656 at p.664:
Failure to indicate expressly that all relevant considerations have been taken into account in arriving at a verdict is not a basis for allowing an appeal under s. 686(1)(a). This accords with the general rule that a trial judge does not err merely because he or she does not give reasons for deciding one way or the other on problematic points. The judge is not required to demonstrate that he or she knows the law and has considered all aspects of the evidence. Nor is a judge required to explain why he or she does not entertain a reasonable doubt as to the accused's guilt. Failure to do any of these things does not, in itself, permit a court of appeal to set aside the verdict.
This rule makes good sense. To require trial judges charged with heavy caseloads of criminal cases to deal in their reasons with every aspect of every case would slow the system of justice immeasurably. Trial judges are presumed to know the law with which they work day in and day out. If they state their conclusions in brief compass, and these conclusions are supported by the evidence, the verdict should not be overturned merely because they fail to discuss collateral aspects of the case.
[16] The issue of sufficiency of Reasons of trial judge decisions was further discussed by the Supreme Court of Canada in R. v. R.E.M., [2008] 3 S.C.R. As McLachlin C.J. stated for the whole Court after considering the Court's previous jurisprudence in Sheppard and subsequent cases at para. 35:
In summary, the cases confirm:
(i) Appellate courts are to take a functional, substantive approach to sufficiency of reasons, reading them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered;
(ii) The basis for the trial judge's verdict must be "intelligible", or capable of being made out. In other words, a logical connection between the verdict and the basis of the verdict must be apparent. A detailed description of the judge's process at arriving at the verdict is unnecessary; and
(iii) In determining whether the logical connection between the verdict and the basis for the verdict is established, one looks at the evidence, the submissions of counsel and the history of the trial to determine the "live" issues as they emerge during the trial.
[17] In R. v. Beharriell, 2014 ONSC 1100, [2014] O.J. No. 882, Durno J., sitting as a summary conviction appeal judge, made reference to Sheppard and the standard of review, and stated at para. 30:
It is not the role of an appellate court to retry the case and substitute its views of the evidence if it differs from that of the trial judge. Rather, the appellate court examines the evidence and determines whether there was evidence upon which the trial judge could reach the conclusion he or she did. That another judge or the appellate court might have or would have reached a different conclusion is not the test. [Citation omitted.]
[18] Another ground of appeal which was the focus of the oral argument at the hearing was "the learned trial judge erred in finding that the breath demand was made 'as soon as practicable', given the arresting officer's explanation that he forgot to do so."
[19] Section 234(3) of the Criminal Code provides:
If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under s. 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person [to provide a breath sample]. [Emphasis added.]
[20] It should be noted that prior to the 2008 amendments to the Criminal Code, s. 254(3) included the words "forthwith". The section then stated:
254(3) Where a peace officer believes on reasonable and probable grounds that a person is committing, or at any time within the preceding three hours has committed as a result of the consumption of alcohol, an offence under s. 253, the peace officer may by demand made to that person forthwith or as soon as practicable, require that person to provide then or as soon thereafter as is practicable [a breath sample]. [Emphasis added.]
[21] The defence relied on a number of cases where reviewing courts dealt with the issue of a police officer's demand under s. 254(3).
[22] In R. v. Singleton, 2006 36500 (ONSC), Ferguson J. in dealing with a case concerning the prior section 254(3) which contained the words "forthwith" concluded at para. 28:
I find that the s. 254 demand was not made forthwith or as soon as practicable as required under the statute. There was no reasonable explanation for Stinson's [the arresting officer] failure to provide the demand as soon as he believed he had the requisite reasonable and probable grounds.
[23] In R. v. Jalovec, [2004] O.J. No. 5980, Mocha J. of the Ontario Court of Justice dealt with a situation where the officer's demand was some fifteen minutes after the arrest. As Mocha J. stated at paras. 10-11:
The bigger problem I have is of course with regards to s. 254(3), in that the demand had to be made "forthwith or as soon as practicable."
Instead the officer made the decision to then read the demand later after he dealt with those other issues; reading the demand then at 8:55, some 15 minutes later. Not a lengthy period of time, but certainly the question is whether or not the demand was made forthwith or as soon as practicable…so I cannot say that the demand was made forthwith or as soon as practicable.
[24] As in Singleton, Mocha J. was also dealing with the statute as it was previously written containing the word "forthwith."
[25] The words "as soon as practicable" have been considered in R. v. Vanderbruggen, 2006 9039 (ON CA), 2006 O.J. No. 1138, Rosenberg J.A. stated for the court at para. 13:
In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events, bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that – in all circumstances – the breath samples were taken within a reasonably prompt time. There is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused was in custody. [Citations omitted]
Conclusion
[26] Impaired driving cases are the daily fare of the work of Ontario Court of Justice judges. They are presumed to know the law. In the case at bar, the summary conviction judge gave detailed oral Reasons for Judgment. In his Reasons he reviewed the evidence of two civilian witnesses, an officer at the scene, the arresting officer, and the breath technician officer, prior to his ultimate finding that Mr. MacIntosh was guilty of driving while impaired. He made numerous factual findings, including:
• The civilians, who stopped to assist Mr. MacIntosh when his vehicle was in the snow bank, both noted an odor of alcohol.
• The arresting officer detected an odor of alcohol on the accused breath and his words were slurred and unclear.
• The accused's eyes were glossy with some reddening. He appeared confused and fumbled through his wallet.
• He swayed from side to side as he walked to the cruiser.
• The second officer at the scene also observed that Mr. MacIntosh had glassy eyes and slow speech and that he was unsteady on his feet, with a strong odor of alcohol coming from his breath.
[27] I am satisfied that the summary conviction judge's conclusion is amply supported by the evidentiary review, and meets the functional test as set out in Sheppard.
Was the Demand Made as Soon as Practicable?
[28] The summary conviction judge found that Mr. MacIntosh was arrested at 7:40 p.m. At 7:43 p.m. he was read a caution and at 7:45 they left the scene to travel to the detachment for an intoxicology test. He briefly returned to the scene to deliver Mr. MacIntosh's keys and continued on route. At 7:51 p.m. he stopped his vehicle and read the demand. As the summary conviction judge noted in his decision:
He stopped at Domtar Road, a well-lit intersection, and read the breath demand to the accused. This was at 7:51 p.m. He advised the accused that he was reading the demand here, away from the scene which was on a corner and there was a tow truck on route and other vehicles and they didn't need to get struck by any vehicles.
[29] His Honour noted about the delay:
In cross-examination, the officer acknowledged that he could have read the demand at the scene but that he forgot to read it given the totality of the circumstances, being positioned on a corner with other vehicles or traffic, with a tow truck on route and Constable Fenton moving his cruiser up to a location to remove the vehicle and the officer wanted to move out to a safer location.
[30] The court noted that the demand was 15 minutes after the arrest and 11 minutes after Mr. MacIntosh was advised of his rights to counsel and eight minutes after he was cautioned. The court then instructed itself on s. 253(3), stating that section:
…requires that a proper demand be made as soon as practicable. The meaning of that term has been considered in numerous cases and courts have determined that as soon as practicable does not mean as soon as possible, but does mean within a reasonably prompt time.
[31] After considering the evidence he found, "I find that the demand in all of the circumstances here was made within a reasonably prompt time."
[32] I am satisfied that the summary conviction judge made no error of law in determining that the test was made as soon as practicable in all the circumstances. The officer transported Mr. MacIntosh to the detachment, a trip that took over half an hour. When he realized he had not read the demand and only eight minutes after he had cautioned Mr. MacIntosh, he pulled his cruiser over and read the demand.
[33] The summary conviction judge then went on to consider a Grant analysis in the event that he was wrong in admitting the evidence. He instructed himself on the three Grant factors stating:
The court must first consider the seriousness of the breach. Second, the impact of the breach on the Charter protected interests of the accused and third, society's interest in the adjudication of the case on the merits.
[34] After considering these three factors he concluded:
On a balance then it is my view that the long term repute of the administration of justice clearly favours the admission of the intoxicology results in evidence and the Charter Application for exclusion will be dismissed
[35] I am satisfied that the summary conviction judge made no error of law in his Grant analysis and his decision is owed deference.
[36] In written grounds for appeal the appellant advanced that the trial judge erred in finding that the arresting officer had reasonable and probable grounds to arrest Mr. MacIntosh. As noted previously, the summary conviction trial judge reviewed the evidence of all the witnesses and in particular the evidence of the arresting officer. On this issue he concluded:
In my view, the officer subjectively had an honest belief that the accused had committed an offence and any reasonable person in the position of the officer would conclude that reasonable and probable grounds existed.
[37] I am satisfied that the summary conviction judge made no error of law in so concluding. The words of Durno J. in Beharriell bear repeating:
It is not the role of an appellate court to retry the case and substitute its view of the evidence if it differs from that of the trial judge.
[38] A further ground of appeal as set out in the Appeal Book was:
The learned trial judge erred in finding that the appellant was not arbitrarily detained when the arresting officer requested that he accompany him to the cruiser.
[39] The summary conviction judge addressed this in his reasons by stating, "With respect to the issue of an alleged arbitrary detention, the court accepts the uncontradicted testimony of Constable Lacroix that while he was investigating a single motor vehicle accident, he asked the accused if he would like to come back to the cruiser where it was warmer and safer and the accused agreed to do so." On this issue His Honour concluded:
I am not persuaded on the evidence that the walk to the cruiser amounted to a detention. But even if it did, I do not find it to be arbitrary. On the evidence then, the court is not persuaded that the accused was arbitrarily detained.
[40] I see no error of law in the decision made by the summary conviction judge on the evidence before him.
[41] For the above reasons the appeal is dismissed.
MULLIGAN J.
Released: May 29, 2017