CITATION: Her Majesty the Queen v. Kraemer, 2017 ONSC 6382

COURT FILE NO.: CR-16-953-00AP

DATE: 20171025

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

Her Majesty the Queen

Melody Martin, for the Respondent

Respondent

• and -

Kyle Kraemer

Stephen Menzies, for the Appellant

Appellant

HEARD: October 23, 2017

REASONS FOR JUDGMENT

[On appeal from the judgment of Morneau J.

dated December 9, 2016]

Conlan, J.

I. Introduction

[1] This is a Summary Conviction Appeal brought by Mr. Kraemer.

[2] On November 28, 2016, in the Ontario Court of Justice sitting in Walkerton, Mr. Kraemer was tried on a single-count Information alleging the offence of “over 80”, contrary to section 253(1)(b) of the Criminal Code.

[3] The incident occurred on January 1, 2016.

[4] At trial, Mr. Kraemer brought a Charter Application. He asserted that the police had violated his section 8, 9, and 10(b) rights. He sought to exclude all of the evidence against him pursuant to section 24(2), including the breath results which according to the Certificate of a Qualified Technician were both 210 milligrams of alcohol in 100 millilitres of blood.

[5] More specifically, Mr. Kraemer submitted that (i) “there were not objective or subjective grounds for a roadside breath test”, and (ii) “there was no informed, unequivocal waiver of section 10(b) rights”, and (iii) “the breath samples were not obtained after a proper demand” (see the Application filed before trial, dated October 31, 2016, at tab 4 of the Appeal Book).

[6] It was a relatively short trial. The transcript comprises 72 pages, including submissions.

[7] There were two witnesses at trial: Ontario Provincial Police Constables Jeremy Schlueter (“Schlueter”) and Michael Dowling (“Dowling”).

[8] In the early morning hours of January 1, 2016, Schlueter stopped a truck that he saw perform a fishtail U-turn. There were five occupants, including the driver Mr. Kraemer. A demand was made for a roadside screening device breath sample. A fail was registered. Mr. Kraemer was arrested for “over 80”. He was brought to the Walkerton police station.

[9] Dowling was the technician who administered the formal breath tests at the police station.

[10] In written Reasons for Judgment released on December 9, 2016, the Charter Application was dismissed. As the only live issues were the Charter ones, a finding of guilt was made.

[11] Regarding the Charter issues, the following are the important conclusions reached by the trial judge (all references are to the Reasons for Judgment at tab 5 of the Appeal Book): Schlueter honestly suspected that Mr. Kraemer had been consuming alcohol before the roadside breath demand was made (paragraph 20); that suspicion was objectively reasonable (paragraphs 21-23); thus, there was no violation of either section 8 or 9 (paragraph 24); but, even if there was, the subsequent evidence would not have been excluded (paragraph 24); the breath demand by Dowling was made as soon as practicable and did precede the taking of the formal breath samples at the police station and, thus, there was no contravention of section 8 (paragraph 34); and Mr. Kraemer understood and waived his right to counsel, therefore, section 10(b) was not infringed (paragraphs 35-38).

II. The Grounds of Appeal

[12] Mr. Kraemer appeals only the conviction.

[13] It is alleged that the trial judge erred in law in admitting the breath test results at the roadside and at the police station.

[14] The Appeal mirrors the legal issues presented at trial. The same arguments are made as were advanced in the Court below: no reasonable suspicion for the roadside breath demand, and an improper demand for the Intoxilyzer breath samples at the police station, and a breach of section 10(b).

[15] The relief sought is an acquittal.

III. The Standard of Review and the Basic Legal Principles

[16] Mr. Kraemer has the burden of proof. He must persuade this Court, on a balance of probabilities, that there is a reason to interfere with what occurred in the Court below.

[17] Under section 686(1)(a) of the Criminal Code, there are three discrete bases for this Appeal to be allowed: (i) the verdict is unreasonable or cannot be supported by the evidence, (ii) there was a wrong decision made on a question of law, and (iii) there was a miscarriage of justice.

[18] Only the second item is relevant here.

[19] Factual findings are entitled to deference, absent palpable and overriding error. It is not the role of this Court to substitute its own views of the evidence. R. v. Sheahan, 2017 ONCA 159, at paragraph 12.

IV. Analysis and Conclusion

[20] For the following reasons, the Appeal is dismissed.

Roadside Breath Demand

[21] Mr. Kraemer does not challenge the trial judge’s finding that Schlueter had a subjective basis for demanding the roadside breath sample.

[22] The issue is whether that subjective belief that Mr. Kraemer had alcohol in his body was objectively reasonable. The trial judge found that it was.

[23] In terms of the applicable standard of review, that is correctness, and the meaning of “reasonable suspicion”, I adopt the following comments made by Justice Fragomeni, sitting as a Summary Conviction Appeal Court, in R. v. Krizanac, [2014] O.J. No. 1839, at paragraphs 9-11. Those paragraphs are reproduced below.

[9] The standard of review on this issue is correctness with respect to the application of findings of fact made by the trial judge to the legal standard of reasonable suspicion. In R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, the court set out the following, at para. 54:

Whether the facts as found by the trial judge amount to reasonable suspicion is a question of law (R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20; Nolet, at para. 47). As McLachlin C.J. and Charron J. explained in Shepherd, the logic of which is equally applicable to reasonable suspicion:

While there can be no doubt that the existence of reasonable and probable grounds is grounded in the factual findings of the trial judge, the issue of whether the facts as found by the trial judge amount at law to reasonable and probable grounds is a question of law. As with any issue on appeal that requires the court to review the underlying factual foundation of a case, it may understandably seem at first blush as though the issue of reasonable and probable grounds is a question of fact. However, this Court has repeatedly affirmed that the application of a legal standard to the facts of the case is a question of law: see R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 18; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 23... . Although the trial judge's factual findings are entitled to deference, the trial judge's ultimate ruling is subject to review for correctness. [Underlining added; para. 20.]

Accordingly, in a case such as this one, an appellate court must always engage in a de novo analysis and thereby substitute its own view of the correct answer for a trial judge's legal conclusion. Deference would apply only if one of the parties sought to attack a finding of fact on appeal. That is not the case here.

[10] In R. v. Singh, [2006] O.J. No. 5133 (S.C.), Justice Durno stated, at paras. 17 and 18:

Second, the respondent admitted consuming two beers. Even assuming the trial judge proceeded on the basis that the respondent was not asked whether the drinking was "tonight", a conclusion he never directly made, the officer was objectively entitled to infer as he did, that it would have been recent consumption. In the alternative, if the respondent was asked whether he had anything to drink that night, the officer's suspicion was not only reasonable, it was fortified.

While that admission was sufficient to make the demand, there was other evidence that could have supported the suspicion. Those indicators can be examined in determining whether there was an objective basis for the suspicion, whether the officer considered them or not. First, there was the unexplained delay in leaving the stop light and the respondent's apparent confusion. Second, the respondent had bloodshot eyes, a potential indicator of the consumption of alcohol. While it was late at night when people are tired, that did not mean the bloodshot eyes were not available as a factor to consider. Third, there was some slurring of the speech, indicative of alcohol consumption. While the respondent had an accent, the slurring was nevertheless a factor to consider. Having regard to all of the factors, there was ample evidence that the suspicion was objectively reasonable and the trial judge erred in finding the officer objectively lacked the suspicion the respondent had alcohol on his body.

[11] In defining the parameters of the reasonable suspicion standard the Supreme Court of Canada stated the following, at paras. 26 to 34 in R. v. Chehil, 2013 SCC 49. [2013] 3 S.C.R. 220:

26 Reasonable suspicion derives its rigour from the requirement that it be based on objectively discernible facts, which can then be subjected to independent judicial scrutiny. This scrutiny is exacting, and must account for the totality of the circumstances. In Kang-Brown, Binnie J. provided the following definition of reasonable suspicion, at para. 75:

The "reasonable suspicion" standard is not a new juridical standard called into existence for the purposes of this case. "Suspicion" is an expectation that the targeted individual is possibly engaged in some criminal activity. A "reasonable" suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.

27 Thus, while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime. As a result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the more demanding reasonable and probable grounds standard.

28 The fact that reasonable suspicion deals with possibilities, rather than probabilities, necessarily means that in some cases the police will reasonably suspect that innocent people are involved in crime. In spite of this reality, properly conducted sniff searches that are based on reasonable suspicion are Charter- compliant in light of their minimally intrusive, narrowly targeted, and highly accurate nature: see Kang-Brown, at para. 60, per Binnie J., and A.M., at paras. 81-84, per Binnie J. However, the suspicion held by the police cannot be so broad that it descends to the level of generalized suspicion, which was described by Bastarache J., at para. 151 of A.M., as suspicion "that attaches to a particular activity or location rather than to a specific person".

29 Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience: see R. v. Bramley, 2009 SKCA 49, 324 Sask. R. 286, at para. 60. A police officer's grounds for reasonable suspicion cannot be assessed in isolation: see Monney, at para. 50.

30 A constellation of factors will not be sufficient to ground reasonable suspicion where it amounts merely to a "generalized" suspicion because it "would include such a number of presumably innocent persons as to approach a subjectively administered, random basis" for a search: United States v. Gooding, 695 F.2d 78 (4th Circ. 1982), at p. 83. The American jurisprudence supports the need for a sufficiently particularized constellation of factors. See Reid v. Georgia, 448 U.S. 438 (1980), and Terry v. Ohio, 392 U.S. 1 (1968). Indeed, the reasonable suspicion standard is designed to avoid indiscriminate and discriminatory searches.

31 While some factors, such as travelling under a false name, or flight from the police, may give rise to reasonable suspicion on their own (Kang-Brown, at para. 87, per Binnie J.), other elements of a constellation will not support reasonable suspicion, except in combination with other factors. Generally, characteristics that apply broadly to innocent people are insufficient, as they are markers only of generalized suspicion. The same is true of factors that may "go both ways", such as an individual's making or failing to make eye contact. On their own, such factors cannot support reasonable suspicion; however, this does not preclude reasonable suspicion arising when the same factor is simply one part of a constellation of factors.

32 Further, reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors. Much as the seven stars that form the Big Dipper have also been interpreted as a bear, a saucepan, and a plough, factors that give rise to a reasonable suspicion may also support completely innocent explanations. This is acceptable, as the reasonable suspicion standard addresses the possibility of uncovering criminality, and not a probability of doing so.

33 Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors. The totality of the circumstances, including favourable and unfavourable factors, must be weighed in the course of arriving at any conclusion regarding reasonable suspicion. As Doherty J.A. found in R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743 (C.A.), at p. 751, "[t]he officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable". This is self-evident.

34 However, the obligation of the police to take all factors into account does not impose a duty to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations. As was noted in United States v. Sokolow, 490 U.S. 1 (1989), at p. 10 (citing Illinois v. Gates, 462 U.S. 213 (1983), at p. 244, footnote 13), "the relevant inquiry is not whether particular conduct is 'innocent' or 'guilty,' but the degree of suspicion that attaches to particular types of noncriminal acts". In conducting this inquiry to ascertain whether reasonable suspicion was present, the court will assess the circumstances the police were aware of at the time of the execution of the search, including those learned after the decision to deploy the sniffer dog was made if there is a delay in deployment, as there was in this case. However, it would not be permissible for the reasonable suspicion inquiry to assess circumstances learned after the execution of the search: see Kang-Brown, at para. 92.

[24] The trial judge found that neither a smell of alcohol coming from Mr. Kraemer specifically (remember there were several others inside the motor vehicle) nor an admission by Mr. Kraemer of having consumed alcohol was necessary to justify the roadside breath demand.

[25] With that, I agree.

[26] Where I think that the trial judge erred, however, is in finding that the other facts in their totality amounted to a reasonable suspicion, looked at objectively, that Mr. Kraemer had alcohol in his body.

[27] At paragraphs 19 and 22 of the Reasons for Judgment, the trial judge pointed to these facts: the “poor” or “terrible” driving, an odour of alcohol within the vehicle, the smell of fresh gum believed to be used to mask the odour of alcohol, it was New Year’s Eve, and there was a dance nearby.

[28] The bad driving was a U-turn and fishtailing of the truck (paragraph 2 of the Reasons for Judgment).

[29] There was no evidence of there being any alcohol within the truck (paragraph 3 of the Reasons for Judgment).

[30] There was a specific finding of fact made by the trial judge that where the odour of alcohol was coming from, other than from within the truck, was unknown (paragraph 3 of the Reasons for Judgment).

[31] There was also a specific finding of fact that whether the smell of fresh gum was coming from Mr. Kraemer was unknown (paragraph 3 of the Reasons for Judgment).

[32] It was actually New Year’s Day, about 2.5 hours after midnight (paragraph 2 of the Reasons for Judgment).

[33] There was no evidence that Mr. Kraemer had been at the rec centre where the dance had been/was being held.

[34] Not only was there no admission of having consumed alcohol, Schlueter did not even ask that question (paragraph 4 of the Reasons for Judgment).

[35] There was no evidence of any issues with Mr. Kraemer’s speech. No evidence of anything unusual about his eyes. Nothing about his movements. Nothing about his mood. He was never asked to exit the truck to isolate him from the other male occupants (paragraphs 3 and 4 of the Reasons for Judgment).

[36] The entire encounter from when Schlueter first observed the truck to when the fail was registered on the roadside screening device was a maximum of four minutes, including both the time required to effect the traffic stop and the time required to administer the test (paragraphs 2 and 5 of the Reasons for Judgment).

[37] In light of the above, with respect, it was clearly wrong to conclude that the roadside breath demand was reasonable in all of the circumstances. The test is admittedly low, but there is still a test.

[38] The trial judge relied in large part on the decision of the Saskatchewan Court of Appeal in R. v. Yates, 2014 SKCA 52, [2014] S.J. No. 233.

[39] Specifically, the trial judge said this at paragraph 23 of the Reasons for Judgment.

[23] Could Schlueter have done more? Yes. He could have asked the defendant to step out of the vehicle in an effort to determine if he could isolate the odour of alcohol to the defendant. He could have inquired if the defendant had been drinking. I cannot say however that the officer was required to do more. The Saskatchewan Court of Appeal in R. v. Yates 2014 SKCA 52, [2014] S.J. No. 233 at paragraph 48 noted in that case “Without more, the possibility of another person or source for the odour of beverage alcohol emanating from the respondent’s vehicle by itself cannot override the rational inference that the odour might have been coming from the respondent” [paragraph 48]. In that case there was the possibility at least of others having been in the motor vehicle at the time the ASD demand was made. As in Yates there is nothing in the evidence that eliminates the defendant as the possible source of the odour of alcohol.

[40] With respect, the facts in Yates, supra were considerably different such that there was a much greater reason to suspect that the odour of alcohol from within the vehicle was indeed coming from the driver, hence supporting the inference that the driver had alcohol in his body.

[41] In particular, in Yates, supra, unlike our case, the officer was able to isolate the odour of alcohol as flowing out of the driver’s window. In addition, the driver’s eyes, unlike Mr. Kraemer’s, were bloodshot and glossy. Yates, supra, at paragraph 5.

[42] Given those facts, absent in the case of Mr. Kraemer, it is not surprising that the Saskatchewan Court of Appeal ruled the way that it did.

[43] It is not the job of this Court to dissect each fact and determine whether another rational inference could be drawn from it, besides a conclusion that Mr. Kraemer had alcohol in his body. This is not a retrial.

[44] The penultimate question for this Court is whether the trial judge erred in finding that a reasonable person standing in the shoes of Schlueter would have reasonably suspected that Mr. Kraemer had alcohol in his body.

[45] In my assessment, the answer to that question is yes.

[46] As the trial judge’s ruling on the section 8 Charter issue stemmed from the conclusion that the roadside breath demand was lawful, it follows that the said ruling was an error in law.

[47] Viewed objectively, the roadside breath demand was made without reasonable suspicion that Mr. Kraemer had alcohol in his body and, therefore, was an unreasonable seizure in violation of his section 8 Charter right.

Intoxilyzer Tests

[48] The police work in this case was sloppy.

[49] Schlueter simply forgot to make any formal breath demand after Mr. Kraemer was arrested. That was not done until Dowling did so at the police station.

[50] The trial judge held that the said failure of Schlueter was essentially saved by what Dowling did. Dowling had reasonable grounds to make the demand that he did, and he made that demand as soon as practicable after he formed those grounds (paragraphs 32-34 of the Reasons for Judgment).

[51] The demand made by Dowling was done at 3:13 a.m. (paragraph 32 of the Reasons for Judgment).

[52] This is a question of law, the validity of Dowling’s breath demand, to be assessed on appeal on a standard of correctness.

[53] As much as I am dismayed by what occurred here, I agree with the trial judge.

[54] In my view, the decision of the Court of Appeal for Ontario in R. v. Guenter, [2016] O.J. No. 3857 is dispositive of the issue.

[55] In that case, the arresting officer, Campoli, forgot to read the breath demand. Unlike Schlueter, she gave a reasonable explanation for that: the collision scene was chaotic, and the paramedics interrupted her. Guenter, supra, at paragraph 66.

[56] Campoli informed the breath technician of her reasons for arresting the driver. The breath technician then made the demand and took the samples from the driver. Guenter, supra, at paragraphs 68 and 69.

[57] The Court of Appeal held that the trial judge did not err in concluding that the breath samples were lawfully taken. Guenter, supra, at paragraph 94.

[58] Mr. Menzies argues that the said decision is distinguishable because we do not know when Schlueter informed Dowling about what happened. Perhaps it was after Dowling made the formal breath demand.

[59] I disagree. Page 32 of the trial transcript, line 19, to page 33, line 17 make it clear that Dowling had the requisite information from Schlueter before Dowling made the formal breath demand.

[60] Mr. Menzies argues further that the said decision is distinguishable because Schlueter’s forgetfulness is without any reasonable explanation, unlike that of Campoli.

[61] I agree that the facts are considerably different in Guenter, supra. But it does not appear that the Court of Appeal’s ultimate conclusion would have been any different had Campoli been in a more similar situation as Schlueter.

[62] I see no error made by the trial judge on the issue of whether Dowling’s breath demand was a valid one. It follows that the trial judge was correct to not find any Charter violation based on that breath demand and the resulting tests at the police station.

Right to Counsel

[63] I repeat, the police work in this case was not illustrative of best practices.

[64] At the roadside, when asked after the arrest if he wanted to speak to a lawyer, Mr. Kraemer replied “for now I am good” (paragraph 35 of the Reasons for Judgment).

[65] Schlueter never went any further with the inquiry, although it would have been easy and quick to do so. “Is that a yes or a no”, for example, would have been helpful, in my view.

[66] The right to counsel was never revisited by either Schlueter or Dowling, although, again, it would have been easy and quick to do so. Dowling, for example, could have followed the advice of Justice Doherty and the Court of Appeal for Ontario in R. v. Devries (2009), 2009 ONCA 477, 95 O.R. (3d) 721 and reiterated the right to counsel at the police station.

[67] I continue to be surprised that the police are generally unwilling to recognize that doing so is a “much better practice”. Devries, supra, at paragraph 42.

[68] In any event, doing so is not strictly required.

[69] The trial judge followed the decision of the Court of Appeal for Ontario in R. v. Owens, 2015 ONCA 652, [2015] O.J. No. 4972 and found no breach of Mr. Kraemer’s section 10(b) Charter right (paragraphs 35-38 of the Reasons for Judgment).

[70] In that case, the Court of Appeal held that the statement “no, not right now” in answer to whether Mr. Owens wished to speak to a lawyer, although ambiguous, did not amount to an invocation of the right to counsel. In the absence of such an invocation, there could be no violation of section 10(b) of the Charter. Owens, supra, at paragraphs 29-31.

[71] The trial judge found that Mr. Kraemer’s response, “for now I am good”, was the functional equivalent of “no, not right now”. Neither is an invocation of the right to counsel.

[72] I see no error in that finding.

[73] It matters not that Mr. Owens, unlike Mr. Kraemer, was asked again about whether he wanted to contact a lawyer.

[74] The important point is that, even where the response is somewhat ambiguous, although the police officer might choose to make further inquiries, absent a finding that the arrestee said or did something to invoke his right to counsel, there will be no violation of section 10(b).

[75] That is our case.

[76] On a standard of review of correctness, I see no error in the Court below on the section 10(b) right to counsel issue.

Section 24(2) of the Charter

[77] I have found one error made by the trial judge on the issue of the validity of the roadside breath demand.

[78] The trial judge conducted the 24(2) analysis in the event that an error was found on that issue and held that the evidence should be admitted (paragraphs 24-29 of the Reasons for Judgment).

[79] I see no error in that conclusion. In fact, I agree with it.

[80] There was no bad faith on the part of Schlueter. The seriousness of the violation can best be described as moderate.

[81] I agree with the trial judge that the first factor favours admission of the evidence that followed the roadside breath demand.

[82] I agree further with the trial judge that the second factor favours admission of the evidence that followed the roadside breath demand. In the post-Grant era, breath test evidence is generally considered to be minimally intrusive. There is nothing in the facts of this case to draw a different conclusion. R. v. MacMillan, 2013 ONCA 109, at paragraph 89.

[83] Consequently, the trial judge was correct to hold that the impact on Mr. Kraemer’s Charter-protected interests was not significant.

[84] I also agree with the trial judge that the third factor favours admission of the evidence. The breath test results are generally reliable evidence. They were crucial to the case for the Crown. And society has a high interest in having drinking and driving offences tried on their merits.

[85] Finally, I agree with the trial judge that, overall, the admission of the evidence would not bring the administration of justice into disrepute.

[86] As can be seen from the above, even if this Court conducted its own independent assessment of the Grant analysis, rather than defer to the trial judge which is the normal practice on section 24(2) determinations, the evidence would be admitted.

[87] Consequently, notwithstanding the error identified above, the Appeal is dismissed.

[88] The Order staying the driving prohibition pending Appeal is hereby lifted.

[89] I wish to thank Mr. Menzies and Ms. Martin for their able assistance with this case.

Conlan, J.

Released: October 25, 2017