Court File and Parties

COURT FILE NO.: 151/17 DATE: 2018-09-20

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Appellant – and – ROBERT BIRMINGHAM Respondent

Counsel: Arish Khoorshed, for the Crown Stephen Whitzman, for Mr. Birmingham

HEARD: September 19, 2018

REASONS FOR JUDGMENT

GRAY J.

[1] The Crown appeals the acquittal of Mr. Birmingham on November 10, 2017 by Baldwin J. of the Ontario Court of Justice, of the offence of operating his motor vehicle while having alcohol in his body that exceeds 80 mg of alcohol in 100 ml of blood, contrary to s.253(1)(b) of the Criminal Code.

[2] The sole ground on which the trial judge entered an acquittal was her conclusion that Mr. Birmingham’s rights under s.8 of the Canadian Charter of Rights and Freedoms had been violated, and that Mr. Birmingham’s breath readings taken into an intoxilyzer, showing a positive result, should be excluded pursuant to s.24(2) of the Charter.

Background

[3] On May 6, 2015, Mr. Birmingham was operating his motor vehicle in Oakville at 12:55 a.m. He made an unsafe lane change and almost hit a police cruiser that was being operated by Officer Matthew Khalaf of the Halton Regional Police. Officer Khalaf stopped Mr. Birmingham on Rebecca Street and went to his police vehicle to write a ticket for making an unsafe lane change.

[4] At 1:05 a.m., Officer Khalaf returned from his police car to Mr. Birmingham’s vehicle, and noticed a strong odour of alcohol emanating from Mr. Birmingham’s breath, and noticed that his eyes were bloodshot. Officer Khalaf advised him that he was being investigated for impaired driving, and cautioned him.

[5] Mr. Birmingham, upon being asked where he was coming from, stated he was leaving the Moonshine Café, which is a licenced establishment. Upon being asked how much he had to drink, Mr. Birmingham said “nothing”, then “two beers”, and later “four and a half beers”.

[6] Officer Khalaf made a demand that Mr. Birmingham undergo a roadside test into an approved screening device (ASD), at 1:06 a.m. A fail result was obtained at 1:09 a.m. Mr. Birmingham was arrested for the over 80 offence, and it was demanded that he take a breath test. There is no dispute that the readings obtained through the use of the intoxilyzer were in excess of the allowable amount.

[7] On cross-examination, Officer Khalaf admitted that he was not aware that if alcohol has been consumed very shortly before an ASD test is administered, the result can be skewed because of residual alcohol remaining in the mouth. He was unaware that in such circumstances it can be necessary to wait 15 minutes in order to ensure that an accurate reading, based on blood alcohol, can be obtained.

[8] A qualified intoxilyzer technician testified that mouth alcohol will have an impact on ASD test results. If present, it can result in a false positive reading because the alcohol is in the mouth not in the blood.

[9] On the Charter application, Mr. Birmingham testified that while at the bar, he consumed a shot of tequila before he left the bar. However, he did not tell the officer that at the scene.

[10] The trial judge held that the rights of Mr. Birmingham under s.8 of the Charter had been violated, and she rejected the position of the Crown. Her reasons on this issue, in their entirety, are as follows:

[36] I reject the position of the Respondent. The issue of residual mouth alcohol and its effects on accurate test results using the ASD has been discussed in judgments for over two decades now. To submit that ignorance of this issue by Officers using the ASD is irrelevant in assessing the Officer’s RPG on an objective basis is wrong and there is no basis in the case law to support this position.

[37] The fact that this Officer could not tell the Court what model of ASD he was using, together with the fact that he has never been trained on the issue of residual mouth alcohol, speaks to a serious deficit in the HRPS’ training on ASD investigations.

[38] It should be standard practice for all Officers conducting ASD investigations to know the protocol associated with their use and to be able to assure the Court that they have complied with it.

[39] The Crown has not met their onus on this s.8 Charter Application and the breach has been established.

[11] Having determined that there was a breach of s.8 of the Charter, the trial judge then held that the results of the breath test should be excluded from evidence, pursuant to s.24(2) of the Charter. Her reasons in that respect, in their entirety, are as follows:

[40] Having found that the Applicant’s s.8 Charter rights were violated, I must now determine whether or not it is just to exclude the breath results at the station.

[41] I find that the Charter breach was a serious one as it was a failure by the Officer and the HRPS to ensure reliability of the ASD test result.

[42] The impact on the Applicant was tangible and meaningful in that the breach undermined a Constitutional right to be free from unconstitutional searches and seizures.

[43] These factors weigh in favour of exclusion.

[44] On the other hand, the interests in trying the matter on its merits favour inclusion because this is a serious offence and the breath tests at the station are reliable.

[45] In balancing the three lines of inquiry, I have determined that the interests of justice dictate that the breath tests be excluded in this case. The law requires that police have reasonable and probable grounds to demand a breath sample from an individual. The long-term interests of the administration of justice are not served by allowing officers to be ignorant of the law pertaining to ASD breath testing.

[46] As stated by the Supreme Court of Canada in R. v. Bernshaw (supra) 22 years ago: “In each case, the officer’s task is to form an honest belief based on reasonable grounds about whether a short delay is necessary to obtain a reliable reading and to act on that belief.”

[Emphasis in original reasons]

Submissions

[12] Mr. Khoorshed, counsel for the Crown, submits that the trial judge made a number of errors in her Charter analysis.

[13] First of all, he submits that the trial judge’s finding that there was a breach of s.8 appears to be based solely on the fact that the police officer could not say what model of ASD he was using, and that he had never been trained on the issue of residual mouth alcohol. Counsel submits that these features do not establish a breach of the Charter.

[14] Counsel submits that whether or not the officer was aware of the mouth alcohol issue, he was under no obligation to ask the suspect when he had had his last drink, or otherwise to make any inquiry as to the period of time that had elapsed after alcohol had been consumed. All that needs to be established is that the officer had reason to be suspicious that alcohol was in the suspect’s system. He would have had no reason to believe that the result of the ASD test was not accurate.

[15] In any event, counsel submits that on the facts of this case it is clear that at least 15 minutes had elapsed between the time of Mr. Birmingham’s last drink and the time he was asked to undergo an ASD test. Accordingly, there is no reason to doubt the accuracy of the ASD test. Based on the ASD test, the officer had reasonable and probable grounds to believe that Mr. Birmingham had committed an offence contrary to s.253(1)(b) of the Code, and thus properly made a demand that he provide breath samples.

[16] Ms. Khoorshed submits that even if the trial judge was correct in holding that s.8 of the Charter was violated, she erred in her s.24(2) analysis. Contrary to the trial judge’s conclusion that two out of three of the relevant factors favour exclusion, the governing authorities make clear that at least one of them, if not both, actually favour admission. Had the trial judge performed a proper s.24(2) analysis, she should have held that the breath test results were admissible.

[17] Mr. Whitzman, counsel for the respondent, Mr. Birmingham, submits that the appeal should be dismissed.

[18] Counsel submits that there is both a subjective and an objective component to the issue of whether the officer had reasonable and probable grounds to believe that an offence had been committed, in order to require Mr. Birmingham to submit to an intoxilyzer analysis.

[19] In this case, because the officer was completely unaware of the issue of whether mouth alcohol could skew the results of an ASD test, it cannot be concluded that he even had subjective grounds to believe an offence was committed, let alone objective grounds. Without the knowledge that mouth alcohol can skew the result, any belief he had in the accuracy of the ASD result would be based on a false assumption – that is, that it was based solely on alcohol in the blood.

[20] For that reason, counsel submits that the trial judge was correct in holding that s.8 of the Charter had been violated, although her reasons in that respect may not be a model of clarity.

[21] As for the analysis under s.24(2), counsel submits that the trial judge’s discretionary decision must be given deference. She correctly weighed the factors in favour of exclusion and inclusion, and her analysis should not be disturbed.

[22] Authorities relied upon by the parties include R. v. Bernshaw, [1995] 1 S.C.R. 254; R. v. M.A.L., [2003] O.J. No.1050 (C.A.); R. v. Mastromartino (2004), 70 O.R. (3d) 540 (S.C.J.); R. v. Jennings, 2018 ONCA 260, 45 C.R.(7th) 224; R. v. Rehill, 2015 ONSC 6025; R. v. Hamzehi, 2015 ONCJ 95; R. v. Chehil, [2013] 3 S.C.R. 220; R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643; R. v. Einarson (2004), 70 O.R. (3d) 296 (C.A.); R. v. Au-Yeung, 2010 ONSC 2292, 75 C.R. (6th) 78; R. v. Sandhu, 2017 ONCJ 226; R. v. Zuniga-Pflücker, 2018 ONCJ 205; and R. v. Mumtaz, 2018 ONCJ 139.

Analysis

[23] The appropriate analysis commences with Bernshaw, supra. In that case, Sopinka J. for the majority of the Supreme Court made it clear that there is no obligation on a police officer to specifically inquire whether a suspect has consumed alcohol within 15 minutes prior to a demand for an ASD test. At para. 81, he stated:

It was suggested by the respondent that prior to demanding that a suspect submit a breath sample for the screening test, the police officer ought to inquire when the suspect last consumed alcohol in order to ensure an accurate test. However, in my view, there is no such duty on the police to make any such inquiry. A suspect is under no obligation to answer such a question and thus it would be improper to impose such a duty on the police. That is not to say that the suspect may not volunteer such information, either spontaneously or in response to a query of the police. In such a case, where the officer is told that the detainee has consumed liquor within the last 15 minutes, or where other reasons exist for the officer to believe that alcohol was recently present in the mouth of the suspect due to regurgitation, the officer may wait an appropriate period of time prior to administering the screening device. However, the police are not required to ascertain such information by posing the question to the suspect prior to administering the screening device test.

[24] Subsequent to that decision, various courts have considered whether, assuming an officer is not required to specifically ask whether a drink has been consumed within 15 minutes prior to the demand, the officer is nevertheless required to turn his or her mind to the question of whether mouth alcohol might be present and might skew the result. One of those cases is Einarson, supra.

[25] The principles to be discerned from the caselaw were summarized by Durno J. in Mastromartino, supra. At para. 23, he stated:

23. In summary, I take Bernshaw, and Einarson to establish the following:

24. Officers making ASD demands must address their minds to whether or not they would be obtaining a reliable reading by administering the test without a brief delay.

25. If officers do not, or reasonably could not, rely on the accuracy of the test results, the results cannot assist in determining whether there are reasonable and probable grounds to arrest.

26. Officers making ASD demands may briefly delay administering the test if, in their opinion, there is credible evidence which causes them to doubt the accuracy of the test result unless the test was briefly delayed.

27. Officers are not required to wait before administering the test in every case where a driver may have been in a bar shortly before being stopped. The mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on the accuracy of the screening device.

28. Whether or not officers are required to wait before administering the screening test is determined on a case-by-case analysis, focusing on the officer’s belief as to the accuracy of the test results if the tests were administered without delay, and the reasonableness of that belief.

29. The fact the driver is observed leaving a bar is a relevant circumstance in determining whether it was reasonable for the officer to delay the taking of the test in order to obtain an accurate sample. However, officers are not required to ask drivers when they last consumed alcohol.

30. If the officer decides to delay taking the sample and that delay is challenged at trial, the court must decide whether the officer honestly and reasonable felt that an appropriately short delay was necessary to obtain a reliable reading.

31. If the officer decides not to delay taking the sample and that decision is challenged at trial, the court must decide whether the officer honestly and reasonably believed that he could rely on the test result if the sample was taken without delay.

[26] It is clear from Durno J.’s summary that an officer, such as Officer Khalaf in this case, must turn his or her mind to whether or not a reliable reading can be obtained by administering the test without a brief delay. In this case, it is clear that Officer Khalaf did not turn his mind to that issue, because he was simply unaware of the mouth alcohol problem.

[27] For this reason, in my view the trial judge was correct in holding that Officer Khalaf did not have reasonable and probable grounds to believe that an offence had been committed based on the result of the ASD test. Had the officer put his mind to the mouth alcohol issue, as he was required to do, and had decided that he had no information to suggest that alcohol had been consumed in the 15 minute period prior to the demand, there would be no problem. However, he did not go through that thought process simply because he was unaware that he should. This was the same conclusion arrived at by Ducharme J. in Au-Yeung, supra, at para. 36.

[28] However, it is noteworthy that at para. 37 Ducharme J. concluded that there was no violation of s.8 notwithstanding the officer’s failure to consider the issue. He stated:

However, on the facts of this case, I have concluded that P.C. Wollenzien’s failure in this regard does not lead to a s.8 violation. There is no evidence that the appellant was drinking shortly before the administration of the ASD test, and it would be speculative to conclude that the ASD reading might not have been accurate on this basis. Indeed, there is no reason to think that, if P.C. Wollenzien had considered this issue, he would have proceeded in any different fashion than he did.

[29] I come to the same conclusion in this case. Mr. Birmingham was first observed by the officer at 12:55 a.m. The fail result was obtained at 1:09 a.m., 14 minutes later. Mr. Birmingham’s last drink was consumed sometime while he was in the bar. Common sense would dictate that it took him at least a minute, if not considerably more, for him to leave the bar, get in his car, and drive to the location where he was observed by Officer Khalaf.

[30] Accordingly, I hold that the trial judge erred in concluding that Mr. Birmingham’s rights under s.8 of the Charter were violated.

[31] While it may be unnecessary to consider the issue under s.24(2) of the Charter in view of this conclusion, I will nevertheless consider the issue in the event that this matter goes further.

[32] As noted, the trial judge held that on a balancing of the three factors discussed in R. v. Grant, [2009] 2 S.C.R. 353, the evidence of the breath tests should be excluded. Pursuant to Grant, the court is to consider the seriousness of the breach; the impact of the breach on the Charter-protected interests of the accused; and the interest of the public in an adjudication on the merits. The trial judge held that the Charter breach was a serious one, and the impact on Mr. Birmingham was tangible and meaningful. She stated that those factors weigh in favour of exclusion. The societal interest in an adjudication on the merits favours inclusion. She held that the long-term interests of the administration of justice are not served by allowing officers to be ignorant of the law pertaining to ASD breath testing. She excluded the evidence on that basis.

[33] The trial judge did not have the advantage of the Court of Appeal’s reasons in Jennings, that were issued several months after her decision was released. In that case, Miller J.A. for the court noted that there had been some divergence in the jurisprudence as to the impact of similar breaches on the interests of the accused. One line of cases took the view that the taking of breath samples is minimally intrusive, and thus does not impact severely on the interests of the accused. Another line of cases, exemplified by the decision of Ducharme J. in Au-Yeung, supra, took the view that breath tests are not minimally intrusive, because they can result in an arrest, handcuffing, conveyance to a police station, and custody. The court took the opportunity to resolve the competing jurisprudence.

[34] On the facts of that case, Miller J.A. held that the officer in question acted in good faith, and thus, on the first Grant factor, admission of the evidence was favoured. It was on the second Grant factor, the impact of the breach, that the jurisprudence diverged.

[35] At para. 29, Miller J.A. noted that much of the debate between the two lines of cases focuses on the significance of statements in Grant, in which the Supreme Court identifies breath samples as a central or paradigmatic example of a minimally intrusive search. He stated: “Although, as the respondent argued, the proposition that breath sample procedures are minimally intrusive is simply dicta in Grant, it should be noted that the statement was no mere throwaway line.”

[36] At paras. 30 and 31, he referred to other decisions of the Court of Appeal that are consistent with what was stated in Grant, including R. v. Manchulenko, 2013 ONCA 543, 116 O.R. (3d) 721, and R. v. Guenter, 2016 ONCA 572, 350 O.A.C. 318. At para. 32, he stated:

To find otherwise would be to create a categorical rule that s.8 breaches in breath sample cases automatically favour the exclusion of evidence under the second Grant factor, since drivers in these cases are almost invariably arrested and taken to the police station to provide further breath samples. This would be contrary to the approach taken by the Supreme Court in Grant and to a sound characterization of what is at stake for the individual in providing a breath sample. Accordingly, it was an error for the trial judge, and the SCAJ, to have followed Au-Yeung in this respect and not to have found the impact of the breach to have been minimal, favouring admission. [Emphasis added]

[37] Ultimately, Miller J.A. concluded that all three Grant factors favoured admission. In Mr. Birmingham’s case, assuming the first factor favours exclusion (which I doubt), it is clear from Jennings that the other two factors favour admission. Had the trial judge analyzed the issue as required by Jennings, she would have held that the evidence should not be excluded.

[38] In the result, even if the trial judge was correct in finding a violation of s.8 of the Charter, the evidence should not have been excluded under s.24(2).

Disposition

[39] In the result, the appeal is allowed, the acquittal is set aside and a conviction on the over 80 charge is substituted.

[40] Mr. Khoorshed requested that if I were to substitute a conviction, sentencing should occur in the Superior Court. I do not agree. In the ordinary course, sentencing should take place in the first instance before the originating court. I see no need to depart from that process.

[41] The matter is remitted to the trial judge for sentencing.

Gray J. Released: September 20, 2018

COURT FILE NO.: 151/17 DATE: 2018-09-20 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN Appellant – and – ROBERT BIRMINGHAM Respondent REASONS FOR JUDGMENT GRAY J. Released: September 20, 2018