Court File and Parties

COURT FILE NO.: 122/17 DATE: 2018 10 05 ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL

BETWEEN: HER MAJESTY THE QUEEN – and – DONALD MACKEY APPELLANT

Counsel: John Dibski, for the Crown David Anber, for the Appellant

HEARD: October 3, 2018

Reasons for Judgment

CONLAN J.

I. Introduction

[1] This is a Summary Conviction Appeal brought by Donald MacKey (“MacKey”).

The Proceeding in the Ontario Court of Justice

[2] In the Ontario Court of Justice sitting in Milton, on March 27 and 28, 2017, MacKey, represented by counsel Mr. Anber, was tried on a one-count Information that alleged that, on September 20, 2015, at Burlington, 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 Bryan (“Bryan”) of the Ontario Provincial Police (“OPP”). On the date in question, in the afternoon, she stopped a Nissan motor vehicle (“Nissan”) for speeding above the posted limit of 80 kilometres per hour. The Nissan was being driven by MacKey. It was a convertible, being operated at the time with the roof open.

[4] According to Bryan, MacKey seemed a little disoriented. Bryan could smell alcohol, although MacKey denied having consumed any. As the Nissan was an open convertible and had a young female passenger in the front seat, Bryan asked MacKey to come to her police vehicle. He sat in the back. Bryan was in the driver’s seat. She could smell alcohol coming from his breath. Bryan asked him again about alcohol consumption. MacKey stated that he had a vodka a while ago. The approved screening device demand was read. A fail resulted. MacKey was arrested for over 80. About three minutes later, right to counsel was read. During those three minutes, among other things, Bryan had called for a tow of the Nissan and for another officer to come to the scene to deal with the young female passenger. MacKey was ultimately transported to the police station for breath testing.

[5] The second witness called by the Crown was Officer Hulsman of the OPP. He assisted at the roadside because the female passenger in the Nissan was a child, MacKey’s daughter, who needed to be cared for given the arrest of MacKey.

[6] The Crown did not call the breath technician but rather, pursuant to section 258(g) of the Criminal Code, filed the Certificate of a Qualified Technician (“Certificate”), the Notice related to the Certificate, and the print-outs from the Intoxilyzer as Exhibits. The Certificate showed breath readings of 120 and 110 milligrams of alcohol in 100 millilitres of blood, respectively.

[7] MacKey testified at trial. As it was a blended hearing, he was called as a witness on only the Charter issues. The Defence had brought an Application at trial under sections 8, 9, 10(a), 10(b) and 24(2) of the Charter.

[8] By the time that written submissions were made by counsel, the Defence had abandoned a couple of issues, however, all of those sections of the Charter remained in play. And to that list the Defence had added section 7. The latter dealt with whether it was improper for Bryan to have destroyed the original “scratch notes” that she had made during the investigation at the roadside.

[9] On September 7, 2017, typed reasons for judgment were released by the trial Judge, spanning thirty pages in length. No Charter violations were found. A finding of guilt was entered.

The Appeal

[10] MacKey appeals against the conviction only. It is alleged that the trial Judge erred in law in dismissing the Charter arguments advanced at trial. The breath samples ought to have been excluded, argues MacKey.

[11] The relief sought is an acquittal or, alternatively, a new trial.

[12] Not surprisingly, the Crown disagrees and asks that the Appeal be dismissed.

The Standard of Review and the Basic Legal Principles

[13] MacKey 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.

[14] Under section 686(1)(a) of the Criminal Code, there are three discrete bases for the 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.

[15] This Appeal focusses on the second item.

[16] 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

[17] Mr. Anber’s materials and oral submissions on the Appeal were excellent. The Appeal is dismissed, however, for the following reasons. The Order of Gray J. made on September 29, 2017 is hereby vacated.

[18] I will leave MacKey’s strongest argument to the end of the discussion below.

Whether the Roadside Screening Device Demand was made “Forthwith”

[19] Mr. Anber argues that it was improper for Bryan to have waited to make the roadside screening device demand (“demand”) until after MacKey was seated in the rear of the police vehicle. Bryan, it is argued, had the requisite reasonable suspicion earlier (when MacKey was in the driver’s seat of the Nissan), and thus, the demand ought to have been made then.

[20] In comprehensive reasons for judgment, the trial Judge dealt with this same argument head-on. At paragraph 22 of those reasons, the trial Judge acknowledges Bryan’s evidence that she thought that there was a “possibility” that MacKey had alcohol in his body while he was still seated inside the Nissan.

[21] Mr. Anber submits that the said phraseology employed by the trial Judge demonstrates that Bryan had the requisite reasonable suspicion without having to force MacKey to come to her police vehicle.

[22] I disagree. “Possibility” does not equate with reasonable suspicion. There is no question that the trial Judge was aware of the relatively low threshold required to establish reasonable suspicion; that is made clear at paragraph 31 of the reasons. Given the totality of the circumstances, however, including MacKey’s denial of consumption in the face of an odour of alcohol emanating from the vehicle, the trial Judge found that it was “entirely reasonable” for Bryan to have brought MacKey back to her police vehicle in order to “rule out any alcohol in his body” (paragraph 31 of the reasons). I agree with the trial Judge.

[23] I see no error committed by the trial Judge in dismissing the section 8 Charter argument on the basis of whether the roadside screening device demand was made forthwith. It was made forthwith, after Bryan had formed the necessary reasonable suspicion, which formulation, at least subjectively, was not made until MacKey was seated in the back of the police car.

[24] This ground of Appeal fails.

Whether the Breath Samples at the Police Station were taken in a Reasonable Manner

[25] Likewise, I see no error committed by the trial Judge in dismissing the section 8 Charter argument on the basis of whether the Crown had proven that the warrantless seizures of breath samples from MacKey at the police station were made in a reasonable manner. In fact, again, I agree with the trial Judge.

[26] Just because the Defence raises the issue of the manner of the search or seizure in a pretrial application, as Mr. Anber did here (see paragraph 52 of the Appellant’s Factum), does not mean that the prosecution cannot rely upon the Certificate and forego testimony from the breath technician.

[27] It depends on the facts of each case. There is no burden of proof on the accused to lead evidence that the warrantless search or seizure was done in an unreasonable manner, but there has to be some air of reality to that suggestion. Otherwise, there would be no purpose to having the Certificate and the related provisions of the Criminal Code.

[28] The Appellant can point to nothing in the record that would give some air of reality to that suggestion in our case.

[29] I agree entirely with the trial Judge that Mr. Anber’s argument on this issue, rightly conceded by him to be a novel one (the trial Judge observed that as well, at paragraph 65 of the reasons), is “untenable” (paragraph 73 of the reasons). I can do no better than reproduce below paragraph 73 of the trial Judge’s reasons, with which I concur:

[73] The alternative result is untenable. It would allow an accused person to file a section 8 Charter application specifying only that the reasonableness of the manner of seizure was in issue and the Crown would be denied the use of section 258(1)(g) in proceeding by way of the certificate of the qualified technician. This would result in the qualified technician becoming a witness in cases where an unspecified section 8 Charter breach is alleged indicating that the Crown was being put to its onus in proving that the search was conducted in a reasonable manner.

[30] Mr. Anber points to the last sentence of paragraph 72 of the trial Judge’s reasons in support of the submission that the trial Judge reversed the burden of proof on this issue: “[i]n the section 8 Charter context, particularly in the absence of any specific allegation to the contrary, this [essentially, the Certificate] is sufficient evidence for the Crown to satisfy its onus on a balance of probabilities that the breath tests were taken in a reasonable manner” (emphasis added).

[31] I disagree that the trial Judge reversed the burden of proof. What the trial Judge was expressing is not materially different than what this Court stated above – there has to be some air of reality to the suggestion that the breath samples were taken in an unreasonable manner. There was nothing here.

[32] This ground of Appeal fails.

Whether Bryan’s Destruction of Her Original “Scratch Notes” Amounted to a Charter Infringement

[33] This ground of Appeal also fails, as I see no error committed by the trial Judge in dealing with this issue. In fact, once again, I agree with the trial Judge.

[34] Bryan, and other police officers for that matter, should be discouraged from destroying their roadside notes even where those notes have been transposed verbatim into their notebooks within a short period of time, as the trial Judge found had been done by Bryan in this case (paragraph 103 of the reasons).

[35] Having said that, at paragraph 114 of the reasons, the trial Judge found as a fact that nothing was lost and, hence, there was no prejudice to the Defence, which finding of fact was soundly based on the only relevant evidence adduced at trial (that of Bryan). Thus, there could not possibly have been anything incorrect in the conclusion reached by the trial Judge that what Bryan did, however ill-advised it was, did not rise to the level of a violation of MacKey’s right to make full answer and defence.

Whether Bryan Complied with Her Obligation to Provide to MacKey his Right to Counsel “Without Delay”

[36] This is the strongest argument for the Appellant. In the end, however, it too fails. I see no error committed by the trial Judge in dealing with the right to counsel issue. In actuality, once again, I agree with the trial Judge.

[37] I am troubled by Bryan’s evidence on the meaning of section 10(b) of the Charter. She needs further education on the undisputed fact that “without delay” means immediately. Not anything short of that. Not promptly. Not as soon as practicable.

[38] It has been many years since the Supreme Court of Canada decided R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460. In that seminal decision, the highest Court in this country explicitly rejected the notion that there ought to be some sort of reasonable delay period subsumed within the analysis of a section 10(b) problem. The Court held, unequivocally, that “without delay” means immediately, and that the right to retain and instruct counsel is triggered at the outset of detention or arrest, and that the immediacy requirement is, apart from a consideration of section 1 of the Charter, subject only to concerns for officer or public safety.

[39] Bryan, and police officers generally, need to be more aware of the meaning of “without delay”.

[40] Having said that, the trial Judge recognized the immediacy requirement (paragraph 36 of the reasons). Further, the trial Judge correctly identified the duration of the delay being complained about by the Defence – three minutes, between the time of the arrest at 2:44 p.m. and the time of the provision of the right to counsel at 2:47 p.m. (paragraph 36 of the reasons). Also, the trial Judge accurately set out the evidence as to what transpired between those two times, in fact, the trial Judge quoted verbatim from the transcript of Bryan’s testimony and from the transcript of her radio call to the OPP communications centre (pages 7 and 8 of the reasons). In addition, the trial Judge referred, correctly, to the governing law (paragraph 48 of the reasons). Finally, the trial Judge referred, correctly, to the public safety exception to the immediacy requirement (paragraph 55 of the reasons).

[41] The trial Judge concluded that Bryan’s legitimate concern for the safety and well-being of the young girl in the Nissan, now alone after her father had been arrested and in a convertible on the side of a busy roadway with a relatively high speed limit, justified the officer taking three minutes to address that concern by, for example, calling for assistance and reassuring MacKey to alleviate his obvious anxiety about his daughter, before providing the arrestee with his right to counsel.

[42] I would have reached the same conclusion as the trial Judge.

[43] Mr. Anber argues that there is something inconsistent between paragraphs 49 and 50 of the trial Judge’s reasons and earlier references in the reasons to the evidence of Bryan as to what was transpiring during those three minutes (at paragraphs 37 and 38, specifically). I simply disagree with that submission. The evidence of Bryan, as referenced by the trial Judge, is entirely consistent with the trial Judge’s conclusion that “the exigencies of this particular situation” (the safety concerns for the young girl) justified the three-minute delay in the provision of the right to counsel (paragraph 49 of the reasons).

[44] The Appeal is therefore dismissed.

Conlan J.

Released: October 5, 2018