Court File and Parties

COURT FILE NO.: 30/17 DATE: 2018-10-25 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN, Respondent – and – THOMAS POEL, Appellant

Counsel: Sandra Kent, for the Crown (Respondent) Martin Montes, for the Appellant

HEARD: October 17, 2018 at Woodstock

Reasons for Judgment

HEENEY J.:

[1] The appellant appeals his conviction by Rogerson J. of the Ontario Court of Justice on a charge of operating a motor vehicle while being impaired by alcohol, contrary to s. 253(a) of the Criminal Code. The conviction was entered on November 8, 2017.

[2] The grounds for the appeal were confined, in argument, to the following:

• first, that the trial judge erred by failing to decide the issue raised by the appellant that his s. 8 Charter rights were violated when he was required by the investigating officer to submit to an Approved Screening Device (“ASD”) demand;
• second, if I find that the trial judge did decide that issue, his reasons are insufficient;
• third, if I find that the trial judge did decide the issue, his decision to dismiss the Charter challenge is incorrect; and,
• fourth, that the trial judge misapprehended the evidence with respect to that issue.

[3] All other issues raised in the Notice of Appeal and Supplementary Notice of Appeal that were not dealt with in the factum and in argument were abandoned at the outset of argument.

[4] By way of brief background, the investigating officer, Const. Wasilewski, responded to a radio dispatch to a single vehicle collision involving a vehicle that was in the northbound ditch of Potters Road in Oxford County. The accident happened at about 5:38 p.m. on a clear day. The dispatch was precipitated by two separate calls to 911 from callers who believed the driver to be impaired. The investigating officer was also told that one complainant advised that they were travelling eastbound on Potters Road when the vehicle cut in front of them and went into the northbound ditch. He was told that the male appears very drunk and was trying to push his vehicle out of the ditch. One of the callers provided the plate number of the vehicle, which led to a criminal record check and a Ministry of Transportation check. They revealed that the appellant was the owner of the vehicle, and that there was an outstanding impaired driving charge against him.

[5] When the investigating officer arrived he saw the appellant’s vehicle nose first in the roadside ditch. He spoke to the appellant, who confirmed he was the driver. He testified that the appellant was wobbly on his feet, had slow head movements and glossy eyes. He testified that the appellant’s speech was slurred, although he clarified that to mean drawn-out pronunciations of the word “no”. He was unable to detect an odour of alcohol on the appellant. The appellant denied having had anything to drink of an alcoholic nature.

[6] The reports from the 911 callers, the unexplained nature of the accident, and his observations of the appellant all gave him “some suspicion that there’s potentially alcohol involved”. He proceeded to make a demand for, and then administer, an ASD screening test, which registered a “fail” and led to the arrest of the appellant.

[7] He explained that he was concerned that, despite all of the physical signs and other factors referred to above, he was unable to detect an odour of alcohol. He wanted to conduct the ASD test “just to confirm it was alcohol and it was not medical … I wanted to make sure that it would eliminate the medical aspect of it, given his physicals. I just wanted to make sure that there was nothing serious going on where I had to dispatch an ambulance.”

[8] The first issue is whether the trial judge erred by failing to decide the s. 8 Charter issue raised by the appellant. The appellant had filed a Charter application prior to the trial, which included, among other alleged Charter violations, a claim that his s. 8 rights were breached by reason of the warrantless search of his breath carried out through the administration of the ASD test. The issue was whether the investigating officer subjectively formed a suspicion that the appellant had alcohol in his body prior to making the ASD demand, and whether that suspicion was objectively reasonable. The trial proceeded as a blended trial and voir dire.

[9] It is accurate to say that the trial judge did not explicitly state that the appellant’s s. 8 application was dismissed. However, it is clear from his reasons, and from reading the record as a whole, that that is precisely what he decided. At para. 26 of his reasons for judgment delivered orally on November 8, 2017, he states that “[w]hile he [the investigating officer] could not actually smell alcohol, he had a suspicion of alcohol in the accused body.” He went on, at para. 79, to refer to the fact that the investigating officer had “grounds to make an approved screening device test”, stemming from the appellant’s admission that the accident occurred within the past half hour, “along with his reasonable suspicion of alcohol in the accused body.”

[10] Once there is a finding by the court that the officer had a reasonable suspicion that alcohol was in present in the body of the appellant, and that the person has operated a motor vehicle within the preceding three hours, it follows that the officer had grounds to administer the test: see s. 254(2) Criminal Code. Thus, there could be no breach of s. 8 in those circumstances. Those findings alone are sufficient to dispose of the s. 8 application. While it would have been preferable if the trial judge had expressly raised and dealt with the s. 8 application, it is clear from his reasons and the record as a whole that he was alive to the issues posed by the s. 8 application, and was of the view that there was no merit to the application.

[11] Are the reasons of the trial judge sufficient?

[12] In R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 35, McLachlin C.J., speaking for the court, summarized the test for sufficiency of reasons as follows:

In summary, the cases confirm:

(1) Appellate courts are to take a functional, substantive approach to sufficiency of reasons, reading them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered (see Sheppard, at paras. 46 and 50; Morrissey, at p. 524). (2) The basis for the trial judge's verdict must be "intelligible", or capable of being made out. In other words, a logical connection between the verdict and the basis for the verdict must be apparent. A detailed description of the judge's process in arriving at the verdict is unnecessary. (3) In determining whether the logical connection between the verdict and the basis for the verdict is established, one looks to the evidence, the submissions of counsel and the history of the trial to determine the "live" issues as they emerged during the trial.

This summary is not exhaustive, and courts of appeal might wish to refer themselves to para. 55 of Sheppard for a more comprehensive list of the key principles.

[13] In the transcript of the proceedings on June 28, 2017, during oral argument following the conclusion of the evidence, the trial judge and counsel for the appellant engaged in a back and forth discussion as to whether the investigating officer had grounds to administer the ASD test, beginning at p. 74 and running to p. 77. After counsel asserted that the officer did not have a reasonable suspicion, the trial judge said:

And his description of “wobbly on his feet, slow head movement from left to right, and glossy eyes”, and you’re – and he doesn’t smell the odour of alcohol, but you’re saying that those indicia aren’t enough for even a reasonable suspicion?

[14] In the discussion that followed, counsel debated with the trial judge as to what amounted to a reasonable suspicion, and the trial judge made it clear that “suspicion” is a low standard. The dialogue concluded as follows:

Mr. Montes: He has no alcohol odour, he’s got no admission of alcohol. Those are – those are important factors to consider. I asked him what was going on through his mind. He said that he was of – he said that he was of two minds, this might have been an alcohol situation but it might have been a medical situation. The Court: Okay. So, that doesn’t make it a reasonable suspicion? Mr. Montes: No, it doesn’t. The Court: He has to eliminate everything else before he has a reasonable suspicion? Mr. Montes: At the end of the day, he does not have a reasonable suspicion that there is alcohol in Mr. Poel’s body. The Court: All right. Mr. Montes: He’s got a suspicion that it might be a medical concern. The Court: And he’s got a suspicion it might be alcohol, too. Mr. Montes: Right. The Court: That’s the point. And – and that’s what I said. Surely, he doesn’t have to eliminate every other possible (sic) before he has – has a reasonable suspicion, which is the lowest of the low … because all that does is allows him to give an approved screening device demand. That’s all it does.

[15] It is clear from this dialogue that the judge was alive to the issue at hand, and was of the view that, on the evidence, the investigating officer had a reasonable suspicion that there was alcohol in the body of the appellant. His reasoning is intelligible. While the officer also had a suspicion that there might be a medical concern at play, that did not detract from the existence of his reasonable suspicion that the appellant had consumed alcohol which, coupled with the admission of driving, gave the investigating officer grounds to administer the roadside test. The trial judge was of the view that officer was not required to eliminate other possibilities, so long as the reasonable possibility existed that the appellant had alcohol in his body.

[16] In R.E.M., Chief Justice McLachlin posed the question as to what level of detail is required in a trial judge’s reasons. She answered this question at paras. 43-44:

The answer is provided in Dinardo and Walker -- what is required is that the reasons, read in the context of the record and the submissions on the live issues in the case, show that the judge has seized the substance of the matter. Provided this is done, detailed recitations of evidence or the law are not required.

The degree of detail required may vary with the circumstances. Less detailed reasons may be required in cases where the basis of the trial judge's decision is apparent from the record, even without being articulated. More detail may be required where the trial judge is called upon "to address troublesome principles of unsettled law, or to resolve confused and contradictory evidence on a key issue": Sheppard, at para. 55, point 6.

[17] In my view, this is a case where the basis of the trial judge’s decision is apparent from the record, even without being articulated. On the facts of this case, it is patently obvious that there was no merit to the s. 8 application, and very little had to be said about it. I conclude that the trial judge’s reasons are sufficient.

[18] The next issue is, are the reasons of the trial judge correct? Counsel for the appellant made much the same argument before this court as he did before the trial judge. The thrust of the argument is that since the investigating officer thought that alcohol might be involved, but also thought that the cause of the physical signs might be a medical condition, and administered the ASD test to “confirm it was alcohol and not medical”, the officer could not have had the requisite reasonable suspicion of alcohol consumption.

[19] The appellant relies upon two cases. The first is R. v. Rahman, [2014] O.J. No. 5773 (O.C.J.). In that case, the court concluded, after reviewing the evidence, that it had considerable doubt as to what suspicion the investigating officer had, when he made the ASD demand. The trial judge focussed on the officer’s testimony that he advised the accused he was going to conduct the approved screening test “just to determine if he had alcohol in his blood.” The court concluded that the officer did not have the requisite grounds to make the demand.

[20] The other decision relied on by the appellant is R. v. Staples, [2011] O.J. No. 1329 (O.C.J.). In that case, the driver said he had been out boating since noon, and “was a bit out of it because of the sun.” He admitted having had a drink of vodka during the morning. His movements were described as lethargic and “out of it”. The officer testified that he wasn’t sure if alcohol was playing an effect on the driver or if it was the sun, so he requested an approved screening device test. The court concluded that the officer did not have the requisite grounds to make the demand.

[21] The appellant relies on these cases as standing for the proposition that where there is some uncertainty as to whether the accused has alcohol in his body, and the ASD test is administered to eliminate that uncertainty, the officer therefore lacks the requisite grounds to make the demand. If that is what these cases stand for, as opposed to merely being fact-specific examples of a trial judge’s determination of what constitutes reasonable suspicion, they have been superseded by the decision of the Ontario Court of Appeal in R. v. Schouten, 2016 ONCA 872, [2016] O.J. No. 5908 (C.A.). In that case, the investigating officer noticed a smell of alcohol on the breath of the accused, and was told by the accused that he had had his last drink 10 hours earlier. The officer conceded that the alcohol may have been eliminated from the body of the accused over that span of time. There were no other indicia of impairment. The trial judge held that the officer did not have the requisite grounds to make an ASD demand. The summary conviction appeal court dismissed the Crown’s appeal.

[22] In allowing the appeal of the decision of the summary conviction appeal court, Simmons J.A., speaking for the court, said this, at paras. 23 to 28:

I conclude that leave to appeal should be granted and the appeal allowed because, in my view, the summary conviction appeal court judge was clearly wrong in upholding the finding of a s. 8 Charter breach.

The summary conviction appeal court judge gave two reasons for upholding the trial judge's finding of a s. 8 breach.

First, while acknowledging that an odour of alcohol alone would have been sufficient to found reasonable grounds to suspect the presence of alcohol, the summary conviction appeal court judge agreed with the trial judge's view that the absence of indicia of impairment and the absence of additional evidence of consumption rendered the officer's suspicion unreasonable.

It is not necessary that a person show signs of impairment to found a basis for making a roadside breath demand. Nor is it necessary that a police officer suspect the person is committing a crime. All that is required is that the police officer making the demand has reasonable grounds to suspect that a person has alcohol in their body: s. 254(2) of the Criminal Code; Lindsay.

Moreover, the standard of "reasonable grounds to suspect" involves possibilities, not probabilities: R. v. Williams, 2013 ONCA 772, [2013] O.J. No. 5880, at para. 22, citing R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, [2013] S.C.J. No. 50, at para. 38; R. v. Chehil, at para. 27; R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, [2008] S.C.J. No. 18, at para. 75.

The absence of the indicia of impairment even when combined with the fact that the respondent claimed to have consumed his last drink ten hours earlier did not negate the possibility that the respondent had alcohol in his system, which was raised by the presence of an odour of alcohol on his breath and his admission of consumption.

[23] In the case at bar, it is argued that since the investigating officer had two competing suspicions – alcohol consumption or medical reasons – he could not have had a reasonable suspicion of the presence of alcohol in the body of the appellant. In Schouten, the two competing suspicions were that alcohol had been eliminated from the driver’s body by reason of the passage of 10 hours, or that alcohol was still present in his body and accounted for the smell of alcohol on his breath. Simmons J.A. dealt with that issue at para. 30:

The summary conviction appeal court judge's second reason for upholding the s. 8 ruling was that the officer's evidence about elimination rates provided an alternate explanation for the presence of an odour of alcohol on the respondent's breath. However, in reaching this conclusion, the summary conviction appeal court judge misstated the officer's evidence in that regard. The summary conviction appeal court judge said that the officer agreed, based on the respondent's admission that his last drink was ten hours earlier, that the alcohol would have been eliminated. However, the officer did not agree that alcohol would have been eliminated; rather, he agreed that the alcohol may have been eliminated. The officer's evidence did not therefore exclude the possibility that the respondent had alcohol in his body. [emphasis is in the original]

[24] As emphasized in Schouten, the requisite grounds involve possibilities, not probabilities. By definition, a possibility involves some element of doubt, because otherwise it would amount to a probability. In the case at bar the investigating officer, based on the fact of an unexplained accident, the report he received about the 911 calls, and the physical signs displayed by the appellant, had a suspicion that the accused possibly had alcohol in his body. The element of doubt was the alternate possibility that the accident and the physical signs could be accounted for by some medical condition. However, the existence of that alternate possibility did not negate the existence of the first possibility. The officer was entitled to administer the ASD to eliminate that alternate possibility, and the results obtained from the test did precisely that.

[25] The trial judge was, therefore, correct in law finding there was no merit to the s. 8 argument.

[26] The final ground of appeal was the assertion that the trial judge misapprehended the evidence.

[27] Three points were raised by the appellant in this regard. The first is that the trial judge failed to resolve the conflict in the evidence between the investigating officer and one of the 911 callers, William Gubbels. The investigating officer testified that when he arrived at the scene, he spoke to Mr. Gubbels, and asked him if he saw the accident, if he spoke to the driver, and if he detected an odour of alcohol. He said Mr. Gubbels’ response was that he had not seen the accident, had spoken to the driver, smelled no odour of alcohol and believed the driver to be “stoned”.

[28] Mr. Gubbels testified that the investigating officer asked him if he called 911, and then instructed him to wait at the scene in order to provide a statement. On cross-examination, he said that the officer did not ask him anything specific about his observations at the roadside.

[29] However, Mr. Gubbels had testified during his examination in chief that when he first arrived at the scene, the appellant asked him to help push the vehicle out of the ditch, and he refused because he said he had a bad back. He testified that he realized through the slurring of the appellant’s words that he was impaired, although Mr. Gubbels was uncertain if it was alcohol or drug related. He did not want to put his face into the appellant’s vehicle so he could not detect any odour of alcohol, “but there was no doubt signs of impairment to some degree.”

[30] It does not, therefore, matter whether the investigating officer was correct in his evidence that he asked what Mr. Gubbels’ observations were. Had he asked him, it is clear what those observations would have been, and they supported a reasonable suspicion of alcohol consumption.

[31] Furthermore, the unchallenged evidence of the investigating officer was that he was advised by dispatch that a 911 caller had advised as follows:

That there is a male that appears … very drunk and that … he can hardly walk and that the male was trying to push this vehicle out of the ditch. And the complainant advised that they were travelling eastbound on Potters Road when the vehicle cut in front of them and went into the northbound ditch. And that the vehicle was partially in the lane of traffic. And that the male is impaired.

[32] This report is arguably sufficient on its own to justify a reasonable suspicion of alcohol consumption. The verbal statements attributed to Mr. Gubbels at the scene say nothing new about the situation, and it does not matter whether the officer’s testimony about what Mr. Gubbels said is accurate or not. It was not, therefore, necessary to resolve this apparent conflict in the testimony.

[33] The second point raised by the appellant is that the investigating officer said he had a suspicion “that alcohol was involved”, but did not say that he had a suspicion that the appellant had alcohol in his body. The appellant concedes at para. 38 of his Factum that the officer is not required to use the “magic words” in s. 254(2) in order to satisfy the court that the necessary grounds have been established. In my view, there is no way in which alcohol could have been “involved” other than by having been consumed by the appellant, and thereby causing or contributing to the physical signs and other indicia of alcohol consumption that the officer was aware of. I find no merit to this argument.

[34] The final point raised by the appellant relates to a leading question posed by Crown counsel during her examination in chief of the investigating officer.

[35] He was questioned about the various items of information he had received from various sources prior to making the ASD demand, following which Crown counsel posed the following question: “And you mentioned that you had formed a reasonable suspicion that alcohol was involved, and I want you to describe …”

[36] At that point, Crown counsel was interrupted by the trial judge, who pointed out that the officer did not, in fact, say that, and ruled that it was a leading question. The record shows that the officer had previously testified that he had some suspicion that alcohol was involved, but did not describe it as a “reasonable” suspicion.

[37] The appellant argues that the trial judge had a duty to specifically address this event in his reasons, and consider what effect, if any, this leading question had on the evidence subsequently received.

[38] There is no merit to this submission. The trial judge did everything that he could be expected to do. He stopped Crown counsel before the question was even completed, and did not permit it to be answered by the witness. He ruled that it was a leading question, and required Crown counsel to reframe it in proper terms. Nothing more was required.

[39] Since no answer was permitted to be given to the question, there is no possibility that evidence was received that could have tainted the fact-finding process. The witness was never asked thereafter whether his belief was “reasonable”, nor would it have been appropriate to do so. It was his task to set out what grounds he relied upon in forming his subjective suspicion that the appellant had alcohol in his body. It was the task of the court to determine whether that suspicion was objectively reasonable.

[40] For all of these reasons, the appeal is dismissed.

“T. A. Heeney J.” T. A. Heeney J. Released: October 25, 2018

COURT FILE NO.: 30/17 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – THOMAS POEL REASONS FOR JUDGMENT ON APPEAL Heeney J.

Released: October 25, 2018