CITATION: R. v. Gardner, 2017 ONSC 5175
COURT FILE NO.: CR-16-0065-AP
DATE: 2017-08-30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
S. Burden, for the Crown (Appellant)
Appellant
- and -
JORDAN GARDNER
K. Seeley, for the Accused (Respondent)
Accused (Respondent)
HEARD: August 2, 2017, at Kenora, Ontario
FITZPATRICK J.
Judgment On Summary Conviction Appeal
[1] The Crown appeals the decision of Hoshizaki J., dated October 17, 2016, to acquit Jordan Gardner of a charge of driving with more than 80 mg of alcohol in 100 ml of blood contrary to s. 253(1)(b) of the Criminal Code.
Background Facts
[2] The Crown in its factum provided a comprehensive summary of the evidence at trial and the ruling which is the subject of this appeal. Mr. Gardner’s counsel in the main accepted as correct the recitation of the facts as set out by the Crown. Mr. Gardner also submitted there were additional material facts that impacted the decision of the trial judge. As well, Mr. Gardner indicated several key areas of disagreement on the facts as set out by the Crown.
[3] I will repeat these background facts while relying on the Crown’s factum. These facts were supported by reference to the transcript of the trial evidence and references to the actual judgment. I will note the areas where there was a disagreement on the facts and the areas where there are additional facts relied upon by the defence.
[4] At trial, Constable Lieverse, the arresting officer and qualified breath technician, testified that he was on night shift on December 12, 2015. Constable Lieverse had received information at 11:25 p.m. that an Anthony Morrison had just left 152 Dock Road, Wabigoon Lake Ojibway First Nation, that he had been driving a green pickup truck and that he had hit a dog. At the time, Constable Lieverse was not in Wabigoon Lake Ojibway First Nation so he proceeded towards the area and arrived on Dock Road approximately 20 minutes later. Constable Lieverse stated he was conducting a patrol in Wabigoon Lake Ojibway First Nation for a suspected impaired driver. Mr. Gardner relies on the additional fact that the information Constable Lieverse received indicated Anthony Morrison was also driving while impaired.
[5] At 11:51 p.m., Constable Lieverse observed an oncoming motor vehicle that appeared to be a pickup truck.
[6] The Crown asserts what happened next was that “[a] traffic stop was conducted”. The defence disagrees that what occurred was a “traffic stop”. The defence asserts Mr. Gardner was stopped pursuant to a criminal investigation. Mr. Gardner relies on the additional fact that at the time the vehicle was stopped, Constable Lieverse could not tell what colour it was, and could not tell whether or not the truck was the green pickup truck he was looking for. The motor vehicle Mr. Gardner was driving at the time was in fact a red pickup truck.
[7] Once Mr. Gardner had stopped, Constable Lieverse approached the driver’s side of the vehicle and Mr. Gardner rolled down his window. The driver identified himself verbally as Jordan Gardner (ultimately identified as Mr. Gardner). Constable Lieverse advised Mr. Gardner that he was looking for a potential impaired driver. Mr. Gardner disputes this characterization and instead asserts Constable Lieverse’s evidence at trial was that he informed Mr. Gardner that he was looking for an impaired driver.
[8] Constable Lieverse could detect the odour of an alcoholic beverage coming from the vehicle and asked Mr. Gardner if he had had anything to drink, to which Mr. Gardner replied that he had. Since there were other people in the vehicle, Constable Lieverse requested that Mr. Gardner step out of the vehicle to remove him from the other possible sources of the odour of an alcoholic beverage.
[9] Once Mr. Gardner was removed from the vehicle and away from other potential sources, Constable Lieverse was able to detect the odour of an alcoholic beverage emanating from Mr. Gardner’s breath. At 11:53 p.m., Constable Lieverse formed a reasonable suspicion that there was alcohol in Mr. Gardner’s blood. Constable Lieverse immediately read the standard roadside screening demand from his service-issued card. Mr. Gardner stated that he understood this demand. The defence asserts that Constable Lieverse did not give Mr. Gardner his right to counsel before asking Mr. Gardner questions, and did not provide him with his rights to counsel and caution until 12:13 a.m., after he had been handcuffed and secured into the back of the police cruiser.
[10] After reading the demand, Constable Lieverse asked Mr. Gardner when he had completed his last drink, to which Mr. Gardner replied that he had done so a few minutes prior to the stop. Based on this, Constable Lieverse decided to wait approximately 15 minutes to eliminate any potential mouth alcohol effect.
[11] On December 13, 2015, at approximately 12:05 a.m., Constable Lieverse retrieved the Approved Screening Device (“ASD”) from his police vehicle and confirmed it was in proper working order. Constable Lieverse had to demonstrate how to use this device twice and at 12:08 a.m. Mr. Gardner provided a sufficient sample into the device which registered as a “FAIL”.
[12] As a result of that “FAIL”, Constable Lieverse formed reasonable grounds to believe that Mr. Gardner had an excess of 80 milligrams of alcohol in 100 millilitres of blood. Mr. Gardner was arrested at 12:08 a.m. and was searched. Constable Lieverse located an unopened can of Bud Light apple flavoured beer in his right coat pocket. Mr. Gardner was handcuffed and secured in the police vehicle.
[13] At 12:13 a.m., Constable Lieverse read Mr. Gardner his right to counsel from a service‑issued card. Mr. Gardner indicated he understood his right to counsel and requested to speak with Travis Moffat. At 12:14 a.m., Constable Lieverse read Mr. Gardner the standard caution from a service-issued card. Mr. Gardner did not wish to provide a statement. At 12:15 a.m., Constable Lieverse read the standard breath demand from a service-issued card. After Constable Lieverse had explained this a few times, Mr. Gardner was able to understand.
[14] There is a dispute between the parties about what occurred after Constable Lieverse cleared the scene but before he returned to the Dryden OPP detachment with Mr. Gardner. In my view, this particular factual dispute had no bearing on either the decision of the trial judge or my determination of this appeal.
[15] Constable Lieverse arrived at the Dryden OPP detachment at 1:03 a.m. on December 16, 2015.
[16] Constable Lieverse lodged Mr. Gardner. During this time Constable Lieverse asked Mr. Gardner questions about contacting his counsel of choice. Mr. Gardner stated to Constable Lieverse that he no longer wished to speak with a lawyer. Constable Lieverse again advised Mr. Gardner of his right to counsel, and Mr. Gardner waived this right.
[17] At 1:31 a.m., Mr. Gardner provided the first suitable sample of his breath directly into an approved instrument and the result was 110 milligrams of alcohol per 100 millilitres of blood. At 1:54 a.m., Mr. Gardner provided a second sample of his breath directly into the instrument and the result was 107 milligrams of alcohol per 100 millilitres of blood.
Submissions on the Charter Motion at Trial
[18] At trial, defence counsel alleged breaches of Mr. Gardner’s ss. 8, 9, 10(a), and 10(b) Charter rights and sought exclusion of the evidence under s. 24(2) of the Charter. The Crown conceded that a detention had occurred. Defence counsel’s position was that Mr. Gardner was arbitrarily detained because the officer was conducting an investigation into criminal activity at the time. Defence counsel went on to state that the ss. 8, 10(a), and 10(b) Charter breaches flowed from this arbitrary detention. Defence counsel conceded that if the evidence was not excluded pursuant to the Charter, there would be sufficient evidence to convict Mr. Gardner.
[19] The Crown’s position was that a traffic stop occurred pursuant to lawful authority, specifically the Highway Traffic Act, R.S.O. 1990, c. H-8 (“HTA”), and was therefore not arbitrary. The Crown stated that one of the reasons police are allowed to stop a motor vehicle is to check the sobriety of the driver; this is what the officer was doing in this case. In the alternative, if the Court found the officer was not acting under the HTA, the Crown took the position that the officer was acting under his common law ancillary powers. The Crown further stated that subjectively and objectively, the officer had the requisite suspicion to ask Mr. Gardner to provide a sample into an ASD. With respect to s. 10(b) of the Charter, the Crown stated that the suspension of this right is justified during an impaired investigation. With respect to s. 10(a), the Crown stated that the officer immediately told Mr. Gardner the reason for the roadside stop and therefore there was no breach.
Trial Judge’s Ruling on Alleged Breaches of Sections 8, 9, 10(a), 10(b) of the Charter
[20] Hoshizaki J. found breaches of Mr. Gardner’s ss. 8, 9, 10(a), and 10(b) Charter rights and excluded the evidence pursuant to s. 24(2) of the Charter.
[21] With respect to s. 9 of the Charter, the trial judge in her decision stated that “[s]topping a motor vehicle on reasonable grounds authorized by the provincial legislation is not a violation of the Charter.” Hoshizaki J. found the only reason the officer stopped Mr. Gardner was because he was driving a pickup truck, on a report that the driver may be impaired. The trial judge stated that, once the officer determined it was not a green pickup truck, the officer should have let the vehicle continue. Hoshizaki J. went on to state that “although provincial legislation allows an officer to stop a vehicle to check for sobriety of the driver, there must be some indication of bad driving to warrant such a stop.”
[22] In the decision, Hoshizaki J. stated that the officer was not stopping the truck under the purposes of the HTA, but for a Criminal Code purpose. The trial judge found that the officer had a legal right to signal the truck to stop, but not to detain the driver once it was determined the truck was not green in colour.
[23] The trial judge then referred to R. v. Lacoste, 2014 ONSC 7481, 113 W.C.B. (2d) 54, a case that discusses arbitrary detention in the context of police searching for stolen gas, not a potential impaired driver. In finding that Mr. Gardner was arbitrarily detained, the trial judge stated at paras. 13 and 14 of her decision:
But for the fact he was driving a pickup on a road where a suspected impaired driver might be found, there was no reason to stop the accused. The officer’s decision to stop the truck had nothing to do with the enforcement of laws relating to the operation of motor vehicles, under the HTA.
[24] In her decision, the trial judge stated that, upon stopping Mr. Gardner, the officer informed him that he was looking for an impaired driver, and that Mr. Gardner was not given his right to counsel until 12:13 a.m. The trial judge stated that at the time that the officer first asked the driver if he had been drinking and to get out of the vehicle, he was detained.
[25] The trial judge held that immediately upon the detention, Mr. Gardner should have been informed of his right to retain and instruct counsel without delay. The trial judge then found a breach of Mr. Gardner’s ss. 10(a) and 10(b) Charter rights. The trial judge gave no reasons as to why there was a s. 10(a) breach.
[26] Regarding the s. 8 breach, the trial judge found that, because the officer had no grounds to stop the pickup truck, there was an unreasonable search and seizure. As she stated in her decision at paras. 18 and 20:
The police officer was targeting a specific driver at the time of the arrest. The driver had a green pickup truck. They stopped a red pickup truck. They had no grounds to stop this vehicle at the time of the stop.
[27] In the end, the trial judge granted the Application and excluded any utterances made by Mr. Gardner as well as the breath test results pursuant to s. 24(2) of the Charter.
Position of the Parties
The Crown
[28] The Crown was clear this appeal was proceeding pursuant to s. 830 of the Criminal Code. The appeal was based strictly on the argument that the trial judge erred in law. The Crown did assert the trial judge misapprehended the evidence.
[29] The Crown took the position the trial judge erred in law in finding a breach of Mr. Gardner’s ss. 8, 9 and 10(a) Charter rights. The Crown appeal focused on the characterization of the initial encounter between Constable Lieverse and Mr. Gardner at or around 11:51 p.m. on December 15, 2015. The Crown argues what occurred was a “traffic stop”. The Crown asserts that the trial judge erred in law in finding that the stop was arbitrary, and that the trial judge erred in finding that the officer was not permitted to detain Mr. Gardner pursuant to the HTA.
[30] The Crown relies on the settled law that both provincial statutes and the common law authorize police officers to arbitrarily and without reason stop and investigate motorists, so long as they are not motivated by an improper purpose and the ensuing investigation does not extend beyond legitimate highway safety objectives. The HTA entitles officers to conduct stops at any time on a highway to check the sobriety of drivers, to check the mechanical fitness of a motor vehicle, and to check that drivers are properly licensed and have the required insurance.
[31] The Crown asserts the trial judge erred in law by stating at para. 10 of her decision: “although the provincial legislation allows the officer to stop to check the sobriety of the driver, there must be some indication of bad driving to warrant such a stop.” This finding, the Crown asserts, indicates the trial judge erroneously found that the officer required reasonable and probable grounds before a vehicle could be stopped pursuant to the HTA. The Crown also argued the trial judge should have considered the officer’s ancillary common law powers to stop a vehicle to check on the sobriety of a driver.
[32] The Crown argues there was no breach under s. 10(a) as the officer informed Mr. Gardner of his Charter rights immediately upon his detention.
[33] But for these alleged errors, the Crown submits the trial judge made the necessary findings of fact to enter a conviction. The Crown requests on this appeal that the acquittal be set aside, a conviction entered, and the matter remitted to the Ontario Court of Justice for sentencing. In the alternative, the Crown argues the appeal should be allowed and a new trial ordered.
Mr. Gardner
[34] The defence argues that Constable Lieverse was conducting a criminal investigation on the evening in question and that the stop was not a random stop to check the sobriety of the driver under the HTA, but rather an investigative detention. This was not a case where the officer was targeting a specific location pursuant to highway traffic safety concerns. Mr. Gardner argues the attempt by the Crown to frame the initial interaction between himself and Constable Lieverse as a traffic stop was simply contrary to the evidence given at trial.
The Law
[35] In R. v. Boily, 2015 ONSC 4427, 123 W.C.B. (2d) 125, Gauthier J. clearly and succinctly set out the legal principles applicable to summary conviction appeals:
The standard of review on a summary conviction appeal is whether, based upon the evidence, the decision made by a trial judge is a finding that COULD have been reasonably reached. A court sitting on appeal should only allow an appeal of the decision if:
a. the decision cannot be supported by the evidence, or it is clearly wrong in law, or
b. it is clearly unreasonable, or
c. there was a miscarriage of justice. [Emphasis in original].
Disposition
[36] In my view, the critical issue in the case, and therefore on this appeal, was why the officer stopped Mr. Gardner in the first place. The “why” of that decision serves to define how the interaction between a state actor, the officer, and a citizen is to be conducted. It also limits and determines what the police can do about any evidence they find during the course of that interaction.
[37] The Crown does not allege the trial judge misapprehended the evidence. However, in my view on this appeal, the Crown is attempting to recast what was the first significant finding of fact the trial judge was called upon to make about this interaction between Mr. Gardner and Constable Lieverse. While the Crown argued the interaction was a “traffic stop”, the trial judge made an express factual finding that it was something very different. She found it was an investigative detention. This, in my view, was a factual finding she was entitled to make based on the evidence before her. Hypothetically, the officer could have had a number of reasons to stop Mr. Gardner. However, from the evidence the trial judge reached a conclusion about why the officer determined to stop, and therefore detain, Mr. Gardner.
[38] In my view, it is not open on an appeal for a party to try to re-characterize facts found by a trier at first instance unless an appellant clearly sets that out as the basis for the appeal. The errors of law asserted by the Crown require a preliminary factual underpinning, namely a finding that what happened was in fact a “traffic stop”. In that circumstance, and with that factual matrix in the background, the Crown’s assertions about the authority of the officer are correct. The jurisprudence is very clear about the broad powers of police to stop vehicles under the HTA. But that is not what the trier of fact found as to what occurred.
[39] In my view, a finding that a person was stopped pursuant to a criminal investigation is a very different thing than a finding that a person was stopped pursuant to the powers of police under the HTA. The defence relies on the decision of Dawson J. in R. v. Vander Griendt, 2015 ONSC 6644, 25 C.R. (7th) 206, where, at para. 53, he states that the context for the exercise of a police power to stop and detain is important to determining what the required prerequisites to the constitutionally valid exercise of the police powers are. The argument that the officer had stopped Mr. Gardner pursuant to the HTA and the ancillary common law powers had been made to the trial judge. She clearly rejected that argument and found as a fact that the detention was for the purposes of a criminal investigation and not pursuant to the HTA.
[40] It was open to the trial judge to make a factual finding about why the accused was stopped. It was clear that the officer testified that he was looking for a particular person (not the accused) driving a pickup truck (like the accused was), and that the pickup truck was green in colour (which was not the colour of the accused’s truck). Those facts were plain on the evidence. It was open on the evidence for the trial judge to find that the accused was not driving the type of truck the officer was looking for. Accordingly, the decision to continue the stop was arbitrary. The officer did not testify that his reasons to stop changed once he noticed the truck was burgundy and not green. The trial judge found that he could have let the truck go, but did not. This created a circumstance where detention of the accused was arbitrary.
[41] Hoshizaki J. found the violation of the right not to be arbitrarily detained to be sufficiently egregious as to require the after-acquired evidence, namely the breath sample and the observation evidence about the alcohol on the breath of the accused, to be excluded from the trial. She conducted a s. 24(2) analysis. That portion of her judgment was not questioned by the Crown. Once the evidence was found by the trial judge to be properly excluded, the Crown could not prove the elements of the offence beyond a reasonable doubt and the accused was acquitted.
[42] I accept Mr. Gardner’s submission that, having made the finding that the stop was made pursuant to a criminal investigation, the HTA did not apply. I agree the trial judge applied the appropriate tests as developed from the jurisprudence related to Mr. Gardner’s ss. 8 and 9 Charter rights to be secure against unreasonable search and seizure and not to be arbitrarily detained.
[43] I agree the trial judge applied an appropriate s. 24(2) analysis to her decision to exclude the evidence obtained once Mr. Gardner was detained.
[44] In my view, this was a sufficient basis to acquit Mr. Gardner.
[45] I also do not find any error in the s. 10 analysis performed by the trial judge. I accept the defence argument that while the decision did not contain an express explanation for the finding of a breach of s. 10(a), the basis for the conclusion is otherwise apparent from the record.
[46] The basis upon which the Crown alleges the judge erred is, in my view, not an accurate account of what the judge actually did. She made a finding of fact. The Crown asserts she should have made a different finding which would have permitted the detention to be justified, but she did not make that finding and the Crown does not assert that this was a misapprehension of the evidence.
[47] In my view the trial judge correctly applied the law that flowed from her factual finding about why the officer had stopped the accused. The evidence supported the conclusion that the decision to detain was an arbitrary one. The evidence obtained thereafter was subject to special scrutiny using the lens of the jurisprudence from the Supreme Court of Canada and the Ontario Court of Appeal related to ss. 8, 9 and 24(2) of the Charter.
[48] The errors of law asserted do not relate to the findings that the judge actually made. The Crown may now want me to substitute a different finding of fact but that is not set out in the notice of appeal or the factum of the Crown. In any event, I find that the trial judge did not misapprehend the evidence. It was a common sense conclusion to say that the reason the officer signaled the accused to stop was because he was driving a pickup truck and that that is the kind of vehicle the officer was searching for. However, the colour of the truck mattered to the officer. The accused’s truck did not match. Therefore, one would wonder why the stop had to continue. The trial judge found there was no reason to continue the stop and hence made the decision that the stop was arbitrary. That was a factual finding that was open for her to make on the evidence before the Court. It was supported by the evidence.
[49] In my view, the findings of the trial judge are ones that could have been reasonably reached. The decision was supported by the evidence. The decision is not clearly wrong in law. Further, I find the decision to be reasonable in light of the findings of fact. In my view, the acquittal in this case did not constitute a miscarriage of justice.
[50] For these reasons, the appeal is dismissed.
_______”original signed by”
FITZPATRICK J.
Released: August 30, 2017
CITATION: R. v. Gardner, 2017 ONSC 5175
COURT FILE NO.: CR-16-0065-AP
DATE: 2017-08-30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Appellant
- and -
JORDAN GARDNER
Accused (Respondent)
JUDGMENT ON SUMMARY
CONVICTION APPEAL
FITZPATRICK J.
Released: August 30, 2017
/sab