Court File and Parties
COURT FILE NO.: 133/17 DATE: 2018 06 22 ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT
BETWEEN: HER MAJESTY THE QUEEN Respondent – and – FRITZ MICHAEL STOECKLER Appellant
Counsel: David King, for the Respondent Shawn Philbert, for the Appellant
HEARD: June 20, 2018
Reasons for Judgment
Conlan J.
I. Introduction
[1] This is a Summary Conviction Appeal brought by Fritz Michael Stoeckler (“Stoeckler”).
The Proceeding in the Ontario Court of Justice
[2] In the Ontario Court of Justice sitting in Milton, on July 31, 2017, Stoeckler, represented by counsel Mr. Philbert, was tried on a one-count Information that alleged that, on November 13, 2016, at Oakville, he did operate a motor vehicle with a blood alcohol level above the legal limit (“over 80”), contrary to section 253(1)(b) of the Criminal Code.
[3] The first witness called by the Crown was officer Bhakta (“Bhakta”) of the Halton Regional Police. On the date in question, he was conducting a mobile R.I.D.E. program that was targeting drivers leaving a local bar. Shortly after 1:00 a.m. on the date in question, he stopped a minivan that had come from the bar. The driver was Stoeckler.
[4] According to Bhakta, in answer to his question about whether the driver had consumed any alcohol, Stoeckler said “I had a couple” and then said it was cider or Strongbow. He said that the consumption was a few hours previously. As Stoeckler retrieved his documents, he was talking to himself and had some slurred speech. His eyes were red and glossy. His pupils were dilated.
[5] Bhakta read to Stoeckler the roadside screening device demand. The device was brought to the place of the stop by another officer. The test was administered to Stoeckler and resulted in a “fail”. There was an arrest for over 80. The breath demand, right to counsel, and the caution were read. Stoeckler was transported to the police station and turned over to a breath technician.
[6] The second and final witness called by the Crown was officer Wheeler (“Wheeler”). Wheeler was present on scene when the roadside screening device test was administered to Stoeckler. According to Wheeler, he (unlike Bhakta, initially) could smell alcohol coming from Stoeckler’s breath.
[7] The Certificate of a Qualified Technician was filed as evidence at trial and revealed readings of 120 and 120 milligrams of alcohol in 100 millilitres of blood.
[8] The Defence did not call any evidence at trial.
[9] In closing submissions, the Defence focused on the “issue of mouth alcohol” and how that could have affected the accuracy of the roadside screening device test (page 88 of the transcript).
[10] After the brief trial, the Judge reserved on the decision.
[11] Oral reasons for judgment were delivered at Court on September 25, 2017. First, the trial evidence was summarized. Next, the issues raised by the Defence were delineated. Then, the cases filed by the Defence were discussed. Finally, the issues were analyzed and conclusions were reached, the most important being that: (i) Bhakta had a reasonable suspicion that Stoeckler had alcohol in his body, and (ii) there was no reason for Bhakta to be concerned about mouth alcohol. A finding of guilt was registered.
The Appeal
[12] Stoeckler appeals against the conviction only. Two major arguments are advanced in the Notice of Appeal: (i) “the learned trial judge made errors of law and palpable and overriding errors of fact in failing to exclude the Breathalyzer evidence against the Appellant” (several examples are given of those alleged errors), and (ii) “the learned trial judge’s comments and interjections during the course of the trial give rise to a reasonable apprehension of bias on his part against the Appellant”.
[13] I pause here to note that there had been a Charter Application brought by Stoeckler at trial.
[14] The relief sought is an acquittal or, alternatively, a new trial before a different judge.
[15] The Factum filed on behalf of Stoeckler makes the following two key submissions: (i) the trial judge erred in finding that Bhakta had a reasonable suspicion that Stoeckler had alcohol in his body, and (ii) the trial judge erred in dismissing the mouth alcohol argument advanced by the Defence.
[16] Thus, Stoeckler argues that Bhakta had no grounds to demand a breath sample, and neither did the breath technician at the police station, meaning that the breath samples were unreasonable seizures contrary to Stoeckler’s section 8 Charter right. In addition, the arrest was unlawful and a violation of Stoeckler’s section 9 Charter right. The trial judge erred in not finding those violations and in not excluding the evidence under section 24(2), submits the Appellant.
The Standard of Review and the Basic Legal Principles
[17] Stoeckler 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.
[18] 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.
[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.
II. Analysis and Conclusion
[20] The Appeal is dismissed, for the following reasons.
[21] I need only address one issue, as in oral argument the other grounds of appeal were effectively abandoned by Mr. Philbert on behalf of Stoeckler.
[22] Did the trial Justice err in concluding that Bhakta had reasonable and probable grounds to demand the breath samples after the roadside screening device test resulted in a “fail”?
[23] With respect, the answer to that question is a resounding “no”. No error was committed by the trial Justice.
[24] It is submitted on behalf of Stoeckler that Bhakta had reason to be concerned about the reliability of the “fail” result because of the smell of alcohol on the breath of Stoeckler and the possibility of residual mouth alcohol.
[25] I, like the trial Justice, reject that submission. In the very recent decision of the Court of Appeal for Ontario in R. v. Notaro, [2018] O.J. No. 2537, the following principle is set out: “[i]f the information known to an arresting officer about a suspect’s residual mouth alcohol would make it unreasonable for the officer to rely on the accuracy of an ASD fail result, reasonable and probable grounds will not be established, whether or not the arresting officer turned her mind to the presence or effect of residual mouth alcohol” (paragraph 43).
[26] That Bhakta could smell alcohol on the breath of Stoeckler at the time that the roadside screening device test was being administered, even if that odour was a strong one, did not make the arresting officer’s reliance on the “fail” result unreasonable.
[27] The smell of alcohol was not inconsistent with Stoeckler’s admission of having consumed some alcohol a few hours earlier, as opposed to very recently, and (apart from the simple fact that Stoeckler had come from a bar before being stopped) there was nothing in the circumstances faced by Bhakta that would have provided any rational basis for him believing, even suspecting, that Stoeckler had residual mouth alcohol at the time of the testing at the roadside.
[28] In the result, this sole ground of appeal being pursued cannot succeed, and the Appeal is therefore dismissed.