COURT FILE NO.: SCA No. 114/16
DATE: 20180508
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
– and –
Sabrina Martineau
Respondent
Danielle Carbonneau, for the Crown
Sarah Desabrais (not appearing), for the Respondent
HEARD: April 20, 2018
C. Gilmore, J.
Overview
[1] This is a Crown appeal of the acquittal of the respondent on charges of Impaired Operation of a Motor Vehicle and Drive Over 80 on December 1, 2016, by Justice M. Zucker of the Ontario Court of Justice at Toronto.
[2] The grounds for the appeal are that the Trial Judge erred as follows:
a. He applied the wrong test for “reasonable suspicion” before requiring a Roadside Screening Test, and;
b. He erred in misapprehending the evidence, leading to an error in determining that the respondent’s 10(b) Charter rights had been breached.
[3] Some brief background is required in this matter as neither the respondent nor her counsel appeared at the appeal. The respondent is a resident of Quebec. She requested and received a bilingual judge, Crown and staff for the appeal.
[4] After the acquittal on December 1, 2016, the Crown filed its Notice of Appeal on December 12, 2016. The respondent retained Ms. Desabrais in April 2017. A Notice of Designation was filed dated April 10, 2017.
[5] The Crown’s factum was due and delivered on June 16, 2017. The respondent’s factum was due on July 28, 2017, but was not delivered. The Crown agreed to extend the timelines. There was some difficulty scheduling an appeal date due to the availability of the Crown and defence counsel. Ultimately a new appeal date was scheduled for April 20, 2018, and a new deadline of March 29, 2018 was fixed for the defence factum.
[6] The Crown sent a reminder email to Ms. Desabrais that the due date for her factum was approaching. No response was received. Early in the week that the appeal was to be argued, defence counsel contacted the Crown and advised she was working on the factum but needed an adjournment. The Crown advised that she would not consent to an adjournment due to the previous delays.
[7] A factum was never filed in this matter by the defence. Counsel did not appear on the appeal date nor send an agent. The respondent was also not present. The Crown advised the defence that she would be seeking to proceed in the absence of the respondent and her counsel if necessary.
[8] On April 20, 2018, when neither the respondent nor her counsel appeared, the Crown sought to proceed in absentia. As the presence of the respondent is not required on an appeal, and given the delays and the Crown’s position on the adjournment request, the court permitted the matter to proceed in the absence of the respondent and her counsel.
Analysis
[9] The reasons given by Zuker, J. at pages 58-65 of the transcript of proceedings from December 1, 2016, are insufficient on both grounds of appeal. Further, the trial judge misapprehended the evidence and failed to provide a proper analysis under section 24(2) of the Charter.
Reasonable Suspicion
[10] With respect to the issue of “reasonable suspicion,” the trial judge failed to advert to certain additional factors in evidence such as the respondent driving in the wrong direction for a short period of time, the strong odour of perfume masking the smell of alcohol, the braking and moving of the respondent’s car when asked to pull over and her slurred speech. These indicia along with those mentioned by the trial judge were more than enough to meet the requirement of having a “reasonable suspicion” as per R. v. Carson, 2009 ONCA 157, [2009] OJ 660.
[11] The trial judge mentioned that the respondent did not appear to have glossy eyes and was not confused. However, the trial judge erred in requiring these indicia in order to form a “reasonable suspicion” regarding the presence of alcohol in the respondent’s body. The mere odour of alcohol is sufficient for the purposes of making the demand. The trial judge erred in requiring more than this.
[12] Further, in excluding this evidence and finding a breach of the respondent’s rights under section 8 of the Charter, the trial judge failed to perform an analysis under section 24(2) of the Charter to determine whether the evidence could have been admitted pursuant to the three part test in Grant.
The 10(b) Issues
[13] The trial judge also erred with respect to the alleged 10(b) Charter breach raised by the respondent. The trial judge incorrectly implies that the onus is not that of the respondent. The evidence was clear that the respondent was able to converse in English. She gave appropriate answers, spoke to Duty Counsel for half an hour in English and never indicated that she did not understand what she was told. She requested to call a French lawyer whom she knew in Quebec. That lawyer was contacted but did not call back. A reasonable amount of time was given for the return call.
[14] The respondent did not testify or file an affidavit. The trial judge did not advert to the fact that since the respondent did not testify, the court had only the officer’s evidence upon which to rely. While the evidence confirmed that the respondent was francophone and had an accent when speaking English, the evidence did not indicate any significant lack of comprehension on the part of the respondent. Further, her requests for her counsel of choice in Quebec were respected and attempts made to contact that lawyer and time allotted waiting for the return call.
[15] Finally, the trial judge did not engage in any 24(2) analysis with respect to the 10(b) issue. He refers to section 24(2) while discussing the 10(b) breach but does not actually enter into the analysis.
Summary and Final Order
[16] In summary, I find the following:
a. The trial judge gave insufficient reasons by not engaging in a proper 24(2) analysis where required.
b. The trial judge misapprehended the evidence required in order to meet the “reasonable suspicion” threshold.
c. The trial judge failed to recognize the respondent’s onus and the lack of any evidentiary basis to meet that onus on the 10(b) issue. Instead, he engaged in speculation as what was in the mind of the respondent at the relevant times.
[17] Given all of the circumstances, the appeal is allowed and a new trial ordered.
C. Gilmore, J.
Released: May 8, 2018
COURT FILE NO.: SCA No. 114/16
DATE: 20180508
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Appellant
– and –
Sabrina Martineau
Respondent
REASONS FOR JUDGMENT
C. Gilmore, J.
Released: May 8, 2018