COURT FILE NO.: 779401/17
DATE: 06-12-2018
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Marie-Eve Talbot, Counsel for the Respondent
Respondent
- and -
TRAVIS BURMASTER
Appellant
Donald Orazietti, Q.C., Counsel for the Appellant
HEARD: May 22, 2018
GAREAU J.
REASONS ON APPEAL
[1] By way of an amended notice of appeal, the appellant appeals the conviction entered on November 2, 2017 in the Ontario Court of Justice by the Honourable Justice R. Kwolek.
[2] The appeal was argued on May 22, 2018. This court’s decision was reserved to be released in writing.
[3] The appellant was convicted of operating a motor vehicle having consumed alcohol in such a quantity that the concentration of alcohol in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to section 253(1)(b) of the Criminal Code of Canada.
[4] After a voir dire, Justice Kwolek found a breach of Mr. Burmaster’s section 8 constitutional rights under the Canadian Charter of Rights and Freedoms (“the Charter”). Justice Kwolek provides the summary for his finding the section 8 Charter breach in paragraph 71 of his Reasons for Judgment released on September 19, 2017 as follows:
As a result, based on the totality of the evidence, my review of the applicable case law, and of my findings of fact, I am not convinced, on a balance of probabilities, that the Crown has proven compliance with s. 254(2) of the Criminal Code of Canada. I am satisfied, that as he testified, the officer suspected that the Applicant had alcohol in his body, but I do not find based on the totality of evidence in this case, that such suspicion, notwithstanding the low threshold required in this case, passes objective scrutiny. The smell of alcohol was not detected as coming from the accused’s breath and the admission of alcohol consumption, based on my findings, was not such that it was an admission of the presence of alcohol in his body at the time of the stop. As a result I do not find that there was non-compliance with s. 254(2) and there has been a section 8 Charter breach.
[5] Justice Kwolek’s finding that there was a section 8 breach is not being challenged in this appeal. The focus of this appeal is Justice Kwolek’s analysis under section 24(2) of the Charter and his conclusion that the evidence obtained from the approved screening device and subsequent breathalyzer tests be admitted into evidence and not be excluded under section 24(2) of the Charter.
[6] As set out in the amended notice of appeal dated March 28, 2018, the appellant advances two grounds of appeal, namely:
(a) That the trial judge erred in his section 24(2) analysis under the Charter and should have excluded the evidence of the breath tests following the finding of a section 8 Charter breach; and
(b) The trial judge erred in failing to consider a section 9 Charter breach. The appellant submits had the trial judge properly found the section 9 Charter breach, this would have been an additional breach amounting to aggravating circumstances which would have impacted the overall analysis under section 24(2) of the Charter.
The First Ground of Appeal – the Section 24(2) Analysis
[7] An appellate court must be cognizant of the standard of review of the decision of a trial judge. With respect to the section 24(2) analysis, the Ontario Court of Appeal has clearly set out the standard of review which applies to the trial judge’s section 24(2) analysis. At paragraph 72 in R. v. Ansari 2015 ONCA 575, 330 C.C.C. (3d) 105, the Ontario Court of Appeal states that:
A final point concerns the standard of review of trial judges’ decision admitting or excluding evidence under s. 24(2). Provided a trial judge has considered the proper factors and has not made any unreasonable finding, the judge’s determination is accorded considerable deference on appellate review: Grant, at para. 86; R. v. Beaulieu, 2010 SCC 7, [2010] 1 S.C.R. 248, at para. 5; and R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 44.
[8] A trial judge’s section 24(2) analysis is entitled to “considerable deference” and should obviously not be disturbed lightly. This is because the balancing of the factors to be considered is a matter of assessment by the trial judge and, as is stated, in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, does not involve “mathematical precision”. (Grant, para. 86).
[9] In paragraph 73 of his reasons for judgment, Justice Kwolek quotes directly from R. v. Grant decision thereby identifying the three inquiries that the Supreme Court of Canada directed the court to make in an analysis under section 24(2) of the Charter. In paragraph 74 of his reasons, Justice Kwolek discusses the first inquiry, namely, the seriousness of the Charter-infringing conduct. In paragraph 75 and 76 of his reasons, Justice Kwolek discusses the second inquiry to be made, namely, the impact of the breach on the Charter-protected interests of the accused. In paragraphs 77 and 78 of his reasons, Justice Kwolek discusses the third inquiry to be made, namely, society’s interest in the adjudication of the case on its merits.
[10] In paragraph 79 and 80 of his reasons, Justice Kwolek balances the three aforementioned factors in arriving at his conclusion as follows:
[79] Based on a Grant s. 24(2) analysis, I find that the Charter breach was significant, but that the impact of the Charter breach was minimally intrusive on the Charter protected interests of the accused and on the privacy, dignity, and bodily integrity of the accused. The applicant’s brief stop, and the provision of breath samples initially into an ASD device, within the context of a stop on a roadway, where there is a diminished expectation of privacy while driving a vehicle on our roadways, was minimally intrusive. The evidence obtained was relevant and reliable.
[80] The seriousness of drinking and driving offences that have contributed to the deaths and injuries of many people travelling on our highways, coupled with the general comments, and the state of the law as it has developed after R. v. Grant, supra, in the totality of circumstances in this case, would support the admission of such evidence and this court finds that it has not been established that it would bring the administration of justice into disrepute to admit such evidence.
[11] The appellant argues that the trial judge was “overly generous” to the investigating officer, Constable Custer-Jones, and erred in not finding that the officer acted in bad faith displaying a pattern of behaviour that ignored the accused’s Charter rights that should have resulted in an exclusion of the evidence.
[12] It cannot be said that Justice Kwolek was not critical of the investigating officer’s conduct. The learned trial judge did not accept the officer’s evidence that the appellant’s vehicle was speeding, or that his vehicle made an aggressive right-hand turn onto Dacey Road. The learned trial judge accepted the evidence of Mr. Burmaster over the officer on the issue of how much alcohol Mr. Burmaster indicated that he had consumed that day. At paragraph 30 and 31 of his decision, Justice Kwolek states:
[30] It is clear that the Applicant admitted to consuming two beer when questioned by the officer as to whether he had been drinking or not. What is not clear is whether or not the Applicant uttered the words “earlier in the day”.
[31] On a balance of probabilities, I will accept the evidence that the Applicant told the officer that “he had two beer earlier in the day”. His version of what was said was confirmed by Owen Dempster. Given the sheer number of impaired driving charges that this officer has dealt with in the last two years, I am satisfied that the Applicant’s recollection of the events is more accurate. The officer also conceded that he was aware that alcohol was eliminated from the body on a regular basis. It appears that the officer accepted an admission of alcohol consumption of a general character to be sufficient to ground his suspicion to justify the ASD demand.
[13] These findings and difficulties with the evidence of Constable Custer-Jones did not lead Justice Kwolek to conclude that the conduct of the investigating officer rose to the level of bad faith. At paragraph 69 of his decision, Justice Kwolek indicates, “I accept that the officer subjectively believed he had a suspicion that the applicant had alcohol in his body when he made the ASD demand”. In his reasons, Justice Kwolek found that the Charter breach was a serious one, supporting exclusion, under the first test to be considered in the Grant analysis. At paragraph 74 of his reasons, Justice Kwolek states:
[74] In this case, I have not found that the officer intentionally disregarded the Charter rights of the Applicant. I have found, however, that the officer did not fully appreciate and failed to properly apply the standard of “reasonable suspicion” as set out in s. 254(2) of the Criminal Code. I have found that he seemed to short cut the process and did not take time to properly assess whether the accused had alcohol in his system or not.
[14] At paragraph 77 of his reasons, Justice Kwolek indicates that “although I have found the Charter breach to be a significant one, I have not determined its breach to be as a result of deliberate police conduct of an officer acting in bad faith or in deliberate violation of the applicant’s Charter rights.” [Emphasis added.]
[15] Although critical of the officer’s conduct, Justice Kwolek made a finding that this conduct was not a deliberate act to infringe the Charter rights of the appellant or actions of bad faith on the part of the investigating officer.
[16] As noted at paragraph 52 by the Supreme Court of Canada in R. v. Côté, 2011 SCC 46, 276 C.C.C. (3d) 42, a trial judge’s clear findings of fact based on his first hand assessment of the evidence must be accepted unless tainted by clear and determinative error. In my view, Justice Kwolek’s finding that the investigating officer’s conduct, although it could be criticized, did not amount to bad faith is supportable on the evidence. Justice Kwolek was in the best position, as the trial judge, to assess the evidence of Officer Custer-Jones and to make determinations and findings of fact based on the evidence. The record supports that it was open to Justice Kwolek to conclude that the actions of the officer were not “as a result of deliberate police conduct of an officer acting in bad faith or in deliberate violation of the applicant’s Charter rights.” (See: para. 77 of Reasons) This finding is not so unreasonable on the evidence that Justice Kwolek had before him as to interfere with it on appeal.
[17] In the first test to be considered in the Grant test, Justice Kwolek found that the Charter breach was a serious one, favouring the exclusion of the evidence. On the evidence before him, Justice Kwolek properly considered the second and third tests in the Grant analysis and, in my view, properly balanced these factors to conclude that the admission of the evidence would not bring the administration of justice into disrepute.
[18] As recent as March 19, 2018, the Ontario Court of Appeal in R. v. Jennings, 2018 ONCA 260, [2018] O.J. No. 1460, held that the taking of breath samples was a minimally intrusive search in considering the second test in Grant. As stated by Miller J.A. at paragraph 29, 30 and 31 of the Jennings decision:
[29] Much of the debate between these two lines of cases focuses on the significance of statements in Grant, in which the Supreme Court of Canada identifies breath samples as a central or paradigmatic example of a minimally intrusive search: see paras. 106-111. Although, as the respondent argued, the proposition that breath sample procedures are minimally intrusive in simple dicta in Grant, it should be noted that the statement was no mere throwaway line. The Supreme Court chose the example of breath sample procedure as an apt and economical means of illustrating the concept of a minimally intrusive search. And the Court assuredly did so in the knowledge that most formal demands for breath samples would be accompanied by an arrest and by all of the accompanying incidents itemized by the trial judge.
[30] This reading in Grant is consistent with other judgments of this court, such as R. v. Manchulenko, 2013 ONCA 543, 116 O.R. (3d) 721, where Watt J.A. refers to “the general rule with respect to the admissibility of breath samples due to their non-obtrusiveness” (at para. 100) and, citing Grant at para. 111, says that “as a general rule, reliable evidence obtained by less egregious and invasive intrusions into privacy, bodily integrity and dignity, such as the taking of breath samples, may be admitted.”
[31] Similarly, in R. v. Guenter, 2016 ONCA 572, 350 O.A.C. 318, Brown J.A. notes, at para. 98, that “[t]he collection of the breath samples amounted to no more than a minimal intrusion upon the appellant’s privacy, bodily integrity and human dignity: Grant, at para. 111”.
[19] The Court of Appeal goes on to state at paragraph 33 of its decision,
[33] With respect to the third Grant factor, the societal interest in an adjudication on the merits, the trial judge made no error in finding the breath samples to be reliable evidence, favouring admission.
[20] I am not persuaded that a finding of bad faith on the part of the investigative officer would have made a difference in the end result after balancing all three factors as set out in R. v. Grant.
[21] Accordingly, I am not persuaded with respect to the first ground of appeal argued by the appellant.
Second Ground of Appeal – Trial judge should have considered the section 9 breach
[22] The appellant argues that the evidence indicated a section 9 breach that the trial judge failed to consider, thereby committing an error in law.
[23] Section 9 of the Charter provides that “everyone has the right not to be arbitrarily detained”. The appellant suggests that the evidence indicated that the groundless stop of the appellant’s vehicle was an arbitrary detention and that the trial judge was alive to this issue as indicated by his comments at paragraph 38 of his reasons for judgment.
[24] At paragraph 38 of his reasons, Justice Kwolek makes the following comment:
[38] With respect to the issue of pulling over the vehicle in the first place, the Applicant did not appear to question the right of the officer to stop the Applicant’s vehicle.
[25] At the trial, the appellant was represented by experienced criminal counsel who did not raise a section 9 Charter violation as part of the defence. Notwithstanding this fact, as directed in R. v. Tran, 2001 CanLII 555 (ON CA), there are situations where it is incumbent on the trial judge to raise a Charter infringement even if it is not advanced by counsel. As is stated in paragraph 26 in Tran:
[26] Applying R. v. Arbour (1990), 4 C.R.R. (2d) 369 (Ont. C.A.), Oland J.A. was of the opinion that, even when the defendant is represented by counsel, there are circumstances in which it is appropriate for a trial judge to raise Charter issues. These circumstances include when the evidence indicates a possible infringement of a defendant’s Charter rights. In Arbour, where the defendant had counsel, this court stated at p. 372 C.R.R.:
We are of the view that once there was admissible uncontradicted evidence before the court, indicating that there had been an infringement of the appellant’s rights under s. 10(b) of the Charter, it was incumbent on the trial judge to enter upon an inquiry to ascertain whether such an infringement had occurred. This was not done. Accordingly, the statement should not have been admitted in evidence or, having been admitted, should not have been considered as evidence in the circumstances.
[26] On the basis of Tran, the accused argues that the failure of Justice Kwolek to resolve the section 9 Charter issue, not raised by counsel, is fatal to the conviction of Mr. Burmaster and a new trial should be ordered on this ground alone.
[27] The comments made by Justice Kwolek in paragraph 38 of his reasons must be read in the context of his entire decision, and, in particular, in the context of his comments at paragraph 39 of his reasons which read as follows:
[39] The ability of the officer to stop an accused under the Highway Traffic Act is set out under sections 48 and 216 of the Highway Traffic Act. Those sections of the HTA are as follows:
48(1) A police officer, readily identifiable as such, may require the driver of a motor vehicle to stop for the purpose of determining whether or not there is evidence to justify making a demand under section 254 of the Criminal Code (Canada).
Power of police officer to stop vehicles
216(1) A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a vehicle, other than a bicycle, to stop, and the driver of a vehicle, when signaled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.
[28] Justice Kwolek found that the stopping of Mr. Burmaster’s vehicle was a random stop, authorized by the police officer under the Highway Traffic Act. At paragraph 75 of his reasons Justice Kwolek states:
[75] In this case, the Applicant was not stopped as part of an organized R.I.D.E. Program. He was stopped, I have found, by an officer in a random stop. I have not accepted the officer’s evidence that it was the nature of the driving, that justified the stop but was rather justified on the statutory authority as found and described in the Highway Traffic Act of Ontario.
[29] Having made the above findings and a specific finding that the stopping of the Burmaster vehicle was a random stop permitted under the sections of the Highway Traffic Act, identified in paragraph 39 of his Reasons for Judgment, it cannot be said that there was “admissible uncontradicted evidence” before Justice Kwolek of a Charter breach under section 9 requiring his consideration and adjudication as contemplated in the decisions of R. v. Arbour and R. v. Tran.
[30] It was open for the trial judge on the evidence to find that the officer’s stopping of the Burmaster vehicle was a random stop, and as such, a stop authorized under the Highway Traffic Act raising no Charter breach under section 9 that, even if not argued or raised at trial, required to be adjudicated by the court.
[31] The appellant argues that the investigating officer had no grounds to stop the Burmaster vehicle and therefore there was an arbitrary detention of the vehicle raising a section 9 Charter issue. In support of that proposition the appellant relies on the cases of R. v. Simpson, 1993 CanLII 3379 (ON CA), 12 O.R. (3d) 182, and R. v. Gonzales, 2017 ONCA 543, 136 O.R. (3d) 225. In the Simpson case a motor vehicle was stopped for a criminal investigation unrelated to driving offences or road safety. The court held that the detention of the occupant of the vehicle for the investigation of narcotic offences for no articulable cause was unlawful and arbitrary and a breach of section 9 of the Charter.
[32] In the Gonzales decision the police were investigating a series of break-ins and stopped a van. While the van was stopped the smell of marijuana was detected in the vehicle. The court held that there was no public safety reason to stop the vehicle and no link between the accused and the break-in offences justifying the stop of the vehicle.
[33] In my view, the Simpson and Gonzales cases are distinguishable from the case at bar. Although it would be argued that Officer Custer-Jones had no articulable reason to pull over the Burmaster vehicle based on the trial judge’s findings that the vehicle was not speeding and did not make a sharp aggressive turn onto Dacey Road, the trial judge accepted that the officer “subjectively believed he had a suspicion that the applicant had alcohol in his body when he made the ASD demand.”
[34] Unlike the facts in R. v. Simpson and R. v. Gonzales, the stop of the Burmaster vehicle was related to possible driving offences and road safety.
[35] With respect to when a trial judge should intervene and raise a Charter issue not raised by the defence, Wright J.A. in R. v. Glaister, [2004] O.J. No. 112, made the following comments at paragraph 11:
[11] The evidentiary standard that must exist before a judge is justified in intervening has been variously described. The merest intimation of a possible Charter infringement will not found a duty upon a trial judge to enter immediately upon an inquiry where none of the parties before him has raised this argument. (R. v. Boron 1983) 1983 CanLII 1606 (ON SC), 8 C.C.C. (3d) 25 @ 32-33). As noted in paras. 9, 8 above, there must be evidence that would alert the trial judge to a problem when the accused is unrepresented and there must be admissible uncontradicted evidence of a Charter breach when the accused is represented. [Emphasis added.]
[36] In the case before this court on appeal, there was no “admissible uncontradicted evidence” before the trial judge of a breach under section 9 of the Charter. The comment made by the trial judge in paragraph 38 of his reasons must be read in conjunction with paragraph 39 of his reasons which provides legislative authority for the officer’s stopping of the Burmaster vehicle in light of the trial judge’s finding that this was a random stop by the officer.
[37] In my view, there was no evidence before the trial judge that would require him to pursue a section 9 Charter inquiry on the basis of the tests set out in R. v. Arbour and R. v. Tran.
[38] Accordingly, I am not persuaded with respect to the second ground of appeal advanced by the appellant.
[39] On the basis of the reasons set forth in the preceding paragraphs, the appeal by the appellant Travis Burmaster is dismissed.
Gareau J.
Released: June 12, 2018
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
TRAVIS BURMASTER
REASONS ON APPEAL
Gareau J.
Released: June 12, 2018