CITATION: R. v. Burke, 2017 ONSC 737

COURT FILE NO.: SCA 157-16

DATE: 2017-01-30

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

Kevin Burke

Appellant

Leonard Kim, for the Respondent

Michael Venturi, for the Appellant

HEARD: January 6, 2017

DECISION ON SUMMARY CONVICTION APPEAL

A.D. KURKE, J.

Introduction

[1] The appellant appeals against his April 5, 2016 conviction for “Over 80”, contrary to section 253(1)(b) of the Criminal Code of Canada, R.S.C. 1985, c. C-46. For the following reasons, the appeal is allowed.

Background

[2] At about 12:22 a.m. on April 3, 2013, the appellant was observed in a vehicle on a private industrial road off of Highway 69 in the District of Sudbury. An officer of the Ontario Provincial Police (“O.P.P.”) purported to conduct a search of the vehicle pursuant to the Liquor License Act, R.S.O. 1990, c. L.19, without having grounds to do so. During the course of that search, another officer demanded that the appellant provide breath samples into an approved screening device (ASD), and then into an approved instrument. The appellant was charged with “Over 80”, contrary to s. 253(1)(b) of the Criminal Code.

[3] The appellant sought Charter relief at trial, and the trial judge found a breach of s. 8, as a result of the Liquor License Act search. The trial judge then refused to exclude the appellant’s breath samples under s. 24(2) of the Charter and convicted the appellant. The appellant appeals, alleging legal error in the s. 24(2) analysis. The Crown agrees that the trial judge’s s. 24(2) analysis was insufficient, but seeks to uphold the conviction by asserting either that s. 24(2) does not apply at all, or that a proper s. 24(2) analysis must yield the same result. The appeal turns on the application of s. 24(2) of the Charter to the circumstances of this case.

Facts

[4] At about 12:22 a.m. on April 3, 2013, O.P.P. Cst. Carey Bond’s attention was drawn to a set of vehicle lights on Ethier Pit Road, a private industrial road off of Highway 69 in Sudbury District. Cst. Bond was suspicious as the business was closed. He exited the highway and observed that the vehicle, a pickup truck, had changed location and was parked inside the private parking lot attached to industrial office premises. As he approached the truck Cst. Bond saw a passenger, who had been outside the truck, re-enter the truck. The appellant was seated in the driver’s seat.

[5] Cst. Bond approached the truck on foot at 12:25 a.m., wanting to know why it was there. From the driver’s side window, Cst. Bond smelled only a strong odour of cologne. The officer asked the two males in the vehicle what they were doing there. The appellant told him that they were just out for a drive. Cst. Burke noted an unopened case of Molson beer in the bed of the pickup and an open case, but no open beer cans. There was no evidence of open beer cans or of any alcoholic beverage that Cst. Bond saw in the cab of the truck. The alcohol was not within reach of the persons in the cab of the truck, and was therefore not stored contrary to the Liquor License Act. Cst. Bond asked the appellant if he had had anything to drink. The appellant answered “I haven’t.”

[6] Cst. Bond confirmed the identities of the two men and called for the assistance of other officers. It is important to note that Cst. Bond appears to have agreed that he was detaining the appellant when he asked for identification, and up until the search of the appellant’s vehicle. In the course of cross-examination, there occurred the following question and answer:

Q. Okay. Now, at this point in time, when you ask for the identification, I just want to understand that we have your full explanation. What is your basis for detaining these individuals?

A. I’m still investigating Liquor License, possible violations. If I can expand on it. Two young males out that time of the morning, parked off on a side road, there’s already alcohol observed in the back of the vehicle. I am still of the opinion that there might be something open in the vehicle.

[7] Cst. Nicole Nicklasson arrived at 12:29 a.m. At Cst. Bond’s cruiser, which was parked some distance from the appellant’s truck, he told Cst. Nicklasson that he intended to search the truck for alcohol, and he was going to go ask the two men to exit the truck. He was still suspicious about why they were at that location.

[8] The two officers approached the appellant’s truck at 12:35 a.m. and Cst. Bond told the appellant to exit the truck. In the course of the brief open-door conversation that took place between the appellant and Cst. Bond, Cst. Nicklasson was able to detect that the appellant had slurred speech and an odour of an alcoholic beverage from his breath. Once he was out of the truck, and while Cst. Bond proceeded with his search of the truck, Cst. Nicklasson asked the accused if he had had anything to drink, and the appellant admitted to two beers.

[9] Thus, within a minute of going up to the truck, Cst. Nicklasson formed grounds to demand that the appellant provide a sample of his breath into an ASD, and she made the demand. When the ASD registered a fail, Cst. Nicklasson arrested the appellant for the s. 253(1)(b) offence, and demanded that the appellant provide breath samples into an approved instrument.

[10] Within the two-hour period to engage the legal presumption, the appellant provided two breath samples into the approved instrument, each analyzed to show 110 mgs of alcohol in 100 mls of blood. The trial judge was satisfied that the Crown had proven “everything else” related to the charge beyond a reasonable doubt. For the trial judge, whether Cst. Nicklasson had grounds for the ASD demand, and the search of the pickup truck pursuant to the Liquor License Act, remained for consideration.

[11] The trial judge ultimately concluded that Cst. Nicklasson had the requisite grounds to make the ASD demand, and the appellant has not appealed against that finding. With respect to s. 8, the trial judge held that the Liquor License Act search was done in violation of the Charter. However, the trial judge found that the breath samples were admissible under s. 24(2), particularly given their reliability and limited intrusiveness on the appellant’s bodily integrity. He convicted the appellant of “Over 80.”

Ground of appeal

[12] The appellant argues that the trial judge abdicated his responsibility to weigh and balance the three Grant factors under s. 24(2) of the Charter. Instead, his independent judgment was simply overborne by the weight of the third Grant factor, and dicta about the admissibility of breath samples. In this respect, the appellant also argues that the trial judge failed to consider the seriousness of the Charter violation and the issue of the “discoverability” of the evidence.

[13] In response, while the Crown concedes that the trial judge’s s. 24(2) analysis was deficient in that he did not conduct a complete analysis of the Grant factors or do a proper balancing of them, the Crown submits that the breath sample evidence is sufficiently remote from the breach that s. 24(2) of the Charter is not even engaged. In the alternative, the Crown argues that the breach in the case must be found to be technical in nature, and that a proper analysis must again find the evidence of the breath samples to be admissible.

The law relating to s. 24(2)

[14] To begin, in assessing a trial court’s decision concerning s. 24(2) of the Charter, an appellate court is bound by the factual findings of the trial judge except where those findings are tainted by reviewable error: R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 50-52; R. v. MacMillan, 2013 ONCA 109, 114 O.R. (3d) 506, at para. 43. Just so, an appellate court that assesses the s. 24(2) analysis of a trial court will defer to the trial judge’s ruling absent an error in principle, a material misapprehension of the evidence relevant to the ruling, or a clearly unreasonable conclusion. In such circumstances, the appellate court may perform its own s. 24(2) analysis and determine the admissibility of the evidence: R. v. Harris, 2007 ONCA 574, 87 O.R. (3d) 214, at para. 50.

[15] To determine whether the admission of evidence obtained in breach of the Charter “would bring the administration of justice into disrepute” under s. 24(2) of the Charter, the analysis is long-term, forward-looking, and societal. In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71, the Supreme Court of Canada focused the inquiry as a balancing of three factors:

1 the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct);

2 the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little); and

3 society’s interest in the adjudication of the case on its merits.

[16] Under the first factor, a court must beware condoning Charter breaches by failing to dissociate itself from unlawful state conduct. However, this factor describes a spectrum of seriousness, extending from the minor or inadvertent breach to a wilful, reckless or blatant disregard of a Charter right. As the breach increases in seriousness, this factor tends to encourage exclusion of the evidence. While good faith on the part of police will reduce the need for a court to distance itself from the conduct, a breach occasioned by police negligence or wilful blindness about a right detracts from a finding of good faith: Grant, at paras. 72-75; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 22-24; and Harris, at paras. 61-62.

[17] The second factor considers the extent to which the breach actually undermined the interests protected by the right that was infringed. Once again, a spectrum of analysis is involved, this one extending between a fleeting or technical breach to a profoundly intrusive breach. As the seriousness increases, there is a greater risk that admission of the evidence will lead the public to conclude that the courts have little concern for breached rights. The seriousness in this factor is considered against the interest that the right protects. In this case, involving a s. 8 breach, privacy and potentially human dignity are interests that could be affected: Grant, at paras. 76-78.

[18] In the context of the second factor, seizures of bodily evidence such as the forcible taking of blood samples or dental impressions represent a serious intrusion, as would a strip search or a bodily cavity search. Fingerprinting, on the other hand, is relatively innocuous. So too, an illegal search in a dwelling is much more serious than that of an automobile, in terms of its effect on the privacy interests at play. The taking of breath samples falls at the relatively non-intrusive end of the spectrum: Grant, at paras. 109, 111, 113-114; MacMillan, at para. 79.

[19] The third factor looks to whether the truth-seeking function of a trial would be better served by admission or exclusion of the evidence. It takes into account society’s interest in having criminal allegations tried on the merits. Reliability of the evidence is an important aspect of this inquiry. The exclusion of highly reliable evidence, such as bodily samples, when that evidence is essential to the prosecution case, could undermine the public’s perception of the justice system. Weighing the third factor against the first two thus allows a balance to be struck between the interest in discovering the truth and the need to protect the integrity of the justice system. In the balance, where the first two factors are less serious, the third factor will allow admission of reliable evidence such as breath sample evidence: Grant, at paras. 79-83, 110-111; MacMillan, at para. 79.

[20] A proper assessment pursuant to s. 24(2) of the Charter requires that all three factors be weighed in the balance, “to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute”: Harrison, at para. 36; MacMillan, at para. 47.

The s. 24(2) analysis of the trial judge

[21] The trial judge found that the search of the appellant’s vehicle pursuant to the Liquor License Act was a breach of the Charter as there were no grounds for Cst. Bond to conduct a Liquor License Act search. The judge went on to find that “[t]he officer, in my view, ought to have known that he should not be going back to that door and asking them to get out of the vehicle.”

[22] The trial judge found “it’s clear that Officer Bond was acting in the best of good faith, that he was simply trying to do his job and that was that.” However, the trial judge then appears to agree with an observation from the defence, that “absence of bad faith doesn’t mean good faith.”

[23] The trial judge went on to express concern that “[i]n a lonely parking lot late at night with two police officers and two people in a car, citizens should expect that officers will deal with them according to law.” He continued on to state that if police do not do so, and the citizens are brought to court, the courts would want to ensure that misguided attempts at searches are discouraged. On the other hand, the judge then focused on the third factor in Grant, and the “public interest in having the merits of this case presented to the court,” and of a decision on the merits.

[24] For the trial judge, the case highlighted two countervailing interests: the importance of a trial on the merits, and a citizen’s right to know that he will be protected from facing at trial the fruits of police investigation when “police officers don’t follow the rules.” This is really the overarching balance between “the interests of truth” and “the integrity of the justice system” spoken of in Grant, at para. 82.

[25] At this point, the trial judge referred to para. 111 of Grant and considered the Supreme Court’s favourable view of breath sample evidence as reliable and admissible where “the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity.” The trial judge concluded that the “bottom line of that is while I personally find that I would have excluded the evidence, I find that the third test under Grant makes this type of evidence admissible.”

[26] The problem with such a finding is that the Supreme Court in Grant states that reliable evidence from the accused’s body, such as breath sample evidence, may be admitted if the “violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity.” Nowhere in the trial judge’s reasons can any clear analysis of “violation” or “intrusion” be found. Although aspects of the various Grant factors can be teased from the reasons, it is not possible to construct a proper s. 24(2) analysis. Here, the trial judge made no findings about the seriousness of the violation or the severity of the intrusion on the Charter-protected interests of the appellant. Indeed, but for para. 111 of Grant, the trial judge had stated that he would have excluded the breath sample evidence.

[27] Rather than actually engaging in analysis and a balancing of factors, the trial judge appears to have treated the reliability and lack of intrusiveness of breath sample evidence as a panacea for any and all seriousness of the Charter violation or severity of the intrusion on the Charter-protected interests of the appellant. No one factor can be treated as decisive in the Grant analysis and reasoning as the trial judge did in this case short-circuits the entire exercise, and appears to provide conclusive weight to only one of the three factors. It is only through a proper consideration of all three that a court can determine “the effect of admitting the evidence on society’s confidence in the justice system”: Grant, at para. 71; and cf. R. v. Marchionne, 2013 ONSC 569, 276 C.R.R. (2d) 49, at para. 26, and R. v. Au-Yeung, 2010 ONSC 2292, 209 C.R.R. (2d) 140, at para. 67.

[28] Such a manner of proceeding by the trial judge represents a reviewable error in principle.

Fresh start?

[29] The Crown argues that s. 24(2) of the Charter should not come into play in the case, as the breath sample evidence was not “obtained in a manner that infringed or denied” a Charter right. Accordingly, the admissibility of the breath sample evidence falls to be determined based only on its relevance. In making this assertion, Crown counsel relies in the notion of “fresh start,” or severability of the evidence from the breach.

[30] The fresh start principle looks to the prerequisite for the application of s. 24(2) of the Charter, that the evidence in question be “obtained in a manner that infringed or denied” an accused’s Charter right. For s. 24(2) to operate, the wording requires a nexus between the breach and the evidence obtained, be that nexus temporal, contextual, or causal in nature. However, where the nexus is remote or tenuous, the evidence may not have been “obtained in a manner” that infringed a Charter right. In addition, investigators may proceed in a way that “severs” the evidence obtained from the breach of the right that preceded it: R. v. Manchulenko, 2013 ONCA 543, 116 O.R. (3d) 721, at paras. 68-72, 77.

[31] To further the “fresh start” argument, the Crown submits that Cst. Nicklasson’s formation of grounds relied not at all on Cst. Bond’s observations or conduct. She was situated to make observations concerning the appellant’s indicia of impairment, and her demand for samples into the ASD was independent of the search conducted by Cst. Bond that constituted the s. 8 breach.

[32] Respectfully, I cannot agree with this construction.

[33] The trial judge placed the commencement of the breach at the latest at the point that Cst. Bond re-attended the appellant’s vehicle and asked him to get out of it. In my view, this finding eliminates the “fresh start” argument advanced by the Crown. The breach was already underway when Cst. Nicklasson observed the appellant’s indicia of impairment and made the ASD demand. It was during Cst. Bond’s conversation with the appellant about exiting the car, and through the opened vehicle door, that Cst. Nicklasson made her observations.

[34] In this case, there is a temporal, contextual and causal nexus between the breach and the investigative step (ASD demand) that resulted in the evidentiary breath samples. Cst. Nicklasson made her observations when Cst. Bond was speaking with the appellant about leaving the vehicle, which was the commencement of the breach.

[35] The “obtained in a manner” requirement is satisfied, and nothing severs the chain between the ASD demand and the ultimate evidentiary breath samples. Accordingly, s. 24(2) of the Charter is engaged in the circumstances of this case.

Seriousness of the breach

[36] The appellant asserts that the trial judge failed properly to assess the seriousness of the breach of the appellant’s s. 8 right.

[37] In this respect, two findings are at odds and must be considered. The trial judge appropriately found that Cst. Bond “ought to have known that he should not be going back to that door and asking them to get out of the vehicle.” There were simply no grounds to justify a search pursuant to the Liquor License Act. On the other hand, the trial judge also found that Cst. Bond was conducting himself “in the best of good faith,” and that he was simply doing his job. Can these findings co-exist in the s. 24(2) analysis and, if so, what is the effect on the seriousness of the breach, the first Grant factor?

[38] In R. v. Kitaitchik (2002), 2002 CanLII 45000 (ON CA), 166 C.C.C. (3d) 14 (Ont. C.A.), Doherty J.A. offered the following assessment concerning the spectrum of police misconduct with respect to Charter rights, at para. 41:

Police conduct can run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard for Charter rights… . What is important is the proper placement of the police conduct along the fault line, not the legal label attached to the conduct.

This passage was imported into the Grant analysis by the Supreme Court of Canada in Harrison, at para. 23.

[39] An officer’s failure to know that his conduct is not Charter compliant is an aggravating factor in the s. 24(2) analysis, but subject to varying placement along the spectrum of seriousness, depending on the intent of the police officer who breached the right. Such ignorance could be considered “misconduct from which the court should be concerned to dissociate itself,” where police conduct is brazen, flagrant, and extremely serious: Harrison, at paras. 22-23.

[40] On the other hand, where the police officer has acted without bad faith, but has demonstrated an “unreasonable ignorance of the scope of his authority”, the breach can be assigned a place closer to the “good faith” end of the spectrum, and away from a characterization of the breach as serious: Harris, at paras. 61-62. However, it must be borne in mind that in Harris the s. 8 breach amounted to “a single inappropriate question in what was otherwise a proper exercise of police authority.” In that case, the officer asked the name of the passenger in a vehicle stopped for a legitimate Highway Traffic Act infraction.

[41] In the circumstances of this case, the trial judge found that Cst. Bond was “simply trying to do his job and that was that.” Apart from the unacceptable “ends justify the means” thinking implied in such an assessment, ignorance by the officer about the limits of his search powers under the Liquor License Act renders this a more serious violation than that in Harris. What compounds the seriousness of the breach is the conduct that precedes it. Even though the trial judge made no finding of an arbitrary detention, it is clear on the facts that the appellant was detained by the officer from at least the point that the officer had the appellant’s name. The appellant continued to be detained while the officer returned to his cruiser to call for back-up so that he could conduct what was found to be an illegal search.

Discoverability and the second Grant factor

[42] The appellant submits that the trial judge erred in his analysis by failing to take into account the issue of discoverability. In the appellant’s submission, but for the unreasonable search, Cst. Nicklasson would not have had grounds for the ASD demand, and would therefore not have obtained the evidentiary breath samples.

[43] Discoverability can affect the second factor in the Grant analysis. When considering the effect on the Charter-protected interest of the accused, an unauthorized search has a more serious impact on an accused’s reasonable expectation of privacy if no grounds exist to conduct such a search at all, that is, if the search could not have occurred legally. Concerning discoverability, what is required is an analysis of its effect on the second factor, in light of all of the circumstances: Côté, at paras. 70-74.

[44] In Grant, the Supreme Court of Canada took care to explain that discoverability should “not be determinative of admissibility”: para. 121. That said, discoverability retains an important place in the analysis. The Court went on to state the following about discoverability and the second factor in the s. 24(2) analysis at para. 122:

Discoverability retains a useful role, however, in assessing the actual impact of the breach on the protected interests of the accused. It allows the court to assess the strength of the causal connection between the Charter-infringing self-incrimination and the resultant evidence. The more likely it is that the evidence would have been obtained even without the statement, the lesser the impact of the breach on the accused’s underlying interest against self-incrimination. The converse, of course, is also true.

While the immediate discussion in this passage involved the discovery of derivative self-incriminatory evidence in the context of an unlawfully obtained statement, the same principle must apply in the context of other Charter breaches. This is particularly so when it can clearly be said that incriminating evidence could not have been developed from an accused if the breach had not occurred.

[45] In the end result, but for the breach of the appellant’s right, there could have been no charge of “Over 80.” Had the officers not re-attended the appellant’s vehicle in order to permit Cst. Bond to perform a search for which he had no grounds, Cst. Nicklasson would not have been in position to detect the odour of alcohol on the appellant’s breath, or to hear him slurring his words. She could not have gotten the appellant to assist her in developing her grounds for an ASD demand by admitting to the consumption of alcohol.

[46] On the analysis from para. 122 of Grant, the s. 8 breach in this case had a very significant impact on the Charter-protected interests of the appellant.

Weighing the factors

[47] In the circumstances of this case, it must be said that the breach was at least moderately serious. Even though it is clear that Cst. Bond did not set out to breach the appellant’s Charter rights, his ignorance about the scope of his search rights aggravates the seriousness of the breach. It must also be said that the effect of the breach on the Charter-protected interest of the appellant in his right to privacy is very significant. It was only through the police violation of that privacy interest that the case against the appellant for “Over 80” could be developed at all.

[48] In this mix, the fact that breath samples are reliable and minimally intrusive cannot outweigh the first two factors, which strongly favour exclusion. Put more simply, para. 111 of Grant itself in fact encourages exclusion, when it states that breath sample evidence may be admitted if the “violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity.” That is not the case here. Given the seriousness of the breach and the severity of the intrusion on the appellant’s privacy in this case, admission of the breath sample evidence would bring the administration of justice into disrepute.

Conclusion

[49] The breath sample evidence in this case properly should have been excluded pursuant to s. 24(2) of the Charter after the finding of the breach of the appellant’s s. 8 right.

[50] In the absence of the breath sample evidence, the Crown’s case under s. 253(1)(b) of the Criminal Code collapses, and the conviction cannot be maintained.

[51] Accordingly, the appeal is allowed, the conviction is quashed, and an acquittal entered.

The Honourable Mr. Justice A.D. Kurke

Released: January 30, 2017

CITATION: R. v. Burke, 2017 ONSC 737

COURT FILE NO.: SCA 157-16

DATE: 2017-01-30

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

Respondent

– and –

Kevin Burke

Appellant

DECISION ON SUMMARY CONVICTION APPEAL

A.D. Kurke, J.

Released: January 30, 2017