COURT FILE NO.: CR-18-1030 SCA
DATE: 2019 04 30
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
M. Occhiogrosso, for the Crown Respondent
Respondent
- and -
SATNAM SINGH
D. Lent, for the Appellant
Appellant
HEARD: February 19 , 2019
REASONS FOR JUDGMENT
[On Appeal From the Judgment of Justice B. Duncan dated April 18, 2018]
D.E. HARRIS J.
[1] The appellant was found guilty of impaired care and control and “over 80” care and control before Justice B. Duncan. He appeals.
[2] There were three arguments made upon appeal: i. In examining whether the police had reasonable grounds for the breathalyzer demand, the trial judge looked only at the evidence demonstrating impairment and erroneously excluded from his mind the evidence tending to negate impairment; ii. The trial judge erred in not excluding the breath readings for a Section 9 Charter violation. Specifically, it was error not to find that confining the accused in the back seat of the police cruiser for the purpose of administering the roadside screening test constituted a violation of his right not to be arbitrarily detained under Section 9 of the Charter. The evidence should have been excluded; and iii. The trial judge’s reasons were insufficient.
[3] The pertinent evidence necessary to frame the grounds of appeal begins with the arresting officer on July 1, 2015 receiving a dispatch call at 6:48 p.m. in relation to a 2003 Lincoln Navigator driving erratically on Airport Road near Bovaird Drive in Brampton. The vehicle was soon located by the officer but it was by this time parked on a residential street with the engine turned off. There was a driver and a passenger in the vehicle. A strong odour of alcohol came from the vehicle. The accused, who was in the driver’s seat, denied drinking. When the accused exited the vehicle, alcohol was noticed on his breath. A suspicion that there was alcohol in his body was formed and the roadside screening device demand was made.
[4] The appellant was required to sit in the back seat of the police cruiser. He walked and sat down in the vehicle without difficulty. The roadside screening device was administered by the officer while sitting in the front seat with the appellant in the back seat. The first two attempts were unsuccessful. Upon the third attempt at providing a suitable breath sample, the appellant fell over in the back seat, losing his balance and dislodging the mouthpiece from the device. It was this event which led the arresting officer to increase his grounds from suspicion of alcohol in the body to reasonable grounds that the accused was impaired. The appellant then spoke a brief sentence in which he slurred his words. The officer arrested him and made the breath demand. The appellant eventually blew over the legal limit.
[5] There were various descriptions of the accused’s level of impairment in the police notes. There was a note that the accused’s eyes were normal and then notes in relation to the same time period that the eyes were bloodshot and red. There were no motor difficulties aside from the stumbling with respect to the third attempt to blow into the screening device.
ISSUE #1: DID THE TRIAL JUDGE ERR IN FINDING THAT THERE WERE PROPER GROUNDS FOR THE BREATH DEMAND?
[6] In his factum, the appellant reargued the trial submission that the evidence simply did not manifest the objective component of reasonable grounds for the breath demand. At the oral hearing, the argument was refined somewhat. The appellant invited scrutiny of the trial judge’s reasons, complaining that he had erred in his approach to the subjective aspect of reasonable grounds.
[7] On the first point, there were sufficient grounds for the breathalyzer demand. The hearsay evidence suggested erratic driving, there was alcohol observed on the breath and then the faltering in the back seat of the cruiser. Taken cumulatively, this was enough. The officer testified that he did not have the subjective belief until the loss of balance in the cruiser. The trial judge was quite correct when he referred to the loss of balance as “quite dramatic.”
[8] With respect to the attack on the trial judge’s reasons, there are two pertinent paragraphs:
First of all, in my view the police officer did have reasonable grounds here. There was a dramatic change in the defendant’s condition. It is true that it is something that wasn’t there, then was there, then wasn’t there, back and forth. But he is entitled to look at it through an entirely, I suppose you could say, negative glass [sic], and look at what points to impairment and draw his conclusion from that.
He does not have to disregard the direction that it points in because there is other evidence that might point in the other direction. That is what the Court of Appeal said in Bush, and of course it is binding and good law.
[9] The reference to “negative glass” is likely a transcription error. The word used was probably “gloss” not “glass.” The difference is not significant because, in context, the meaning of both words is essentially the same.
[10] As I understand the appellant’s argument, the trial judge in concluding the officer had the necessary subjective grounds for the demand erred by excluding from consideration evidence tending to show that there was no impairment. If this is the case, the formulation of grounds was flawed and cannot stand. As Justice Doherty held in R. v. Golub (1997), 1997 6316 (ON CA), 34 O.R. (3d) 743 (Ont. C.A.), leave refused [1997] S.C.C.A. No. 571, in dealing with the analogous issue of grounds for arrest (para. 21):
The officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable: R. v. Storrey, supra, at pp. 423-24; Chartier v. The Attorney General of Quebec (1979), 1979 17 (SCC), 48 C.C.C. (2d) 34 at 56 (S.C.C.); R. v. Hall (1995), 1995 647 (ON CA), 39 C.R. (4th) 66 at 73-75 (Ont. C.A.); R. v. Proulx (1993), 1993 3677 (QC CA), 81 C.C.C. (3d) 48 at 51 (Que. C.A.).
[11] I do not agree that the trial judge or the officer fell into this trap. Viewed in isolation, the last sentence in the first paragraph causes a slight concern as it could be interpreted to imply that the officer could and did look exclusively at the indications of impairment and exclude factors pointing away from impairment (“entitled to look at it through an entirely… negative glass and look at what points to impairment”).
[12] However, the next paragraph in the trial judge’s reasons clarifies the trial judge’s meaning. In short, it states that the officer need not disregard the evidence of impairment just because there is other countervailing evidence. That is a correct statement in logic and in law.
[13] The authorities are clear that the totality of circumstances should be considered in evaluating reasonable grounds: R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641 at para. 54. Furthermore, Justice Durno said in that case:
56 An assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of an impaired driver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are present and which are absent as the essential test. There is no mathematical formula with a certain number of indicia being required before reasonable and probable grounds objectively existed; Censoni at para. 46. The absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding of reasonable and probable grounds based on the observed indicia and available information: R. v. Costello (2002), 22 M.V.R. (4th) 165 (Ont. C.A.), at para. 2; Wang, at para. 21.
[14] The key point is that the trial judge was not cherry picking through the evidence nor was the police officer. The officer stated that he had grounds and articulated the basis for the grounds. On the objective, reasonableness level, the grounds were sufficient. Subjectively, no irrelevant considerations were relied upon nor did the officer artificially exclude from consideration exculpatory evidence.
[15] The trial judge during defence counsel’s argument said that it was common experience that people under the influence of alcohol can keep it together for the most part but not always completely. On occasion, there are tell-tale signs of impairment. In this case, the loss of balance was just such a sign. This piece of evidence predominated consideration of this Charter issue. It was front and central in the trial judge’s reasons as well.
[16] The focus on this evidence at trial was only reasonable. The police officer was perfectly entitled to look at this event in the context of the other positive and negative factors and determine that it tipped the balance towards reasonable grounds of impairment.
[17] Furthermore, there is a presumption that a judge knows the law and is proceeding in accordance with it. The judge who tried this case is very experienced in matters of criminal law. Although the presumption is tempered by the reality that even experienced judges make mistakes (R. v. Sheppard 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55), in a situation of a minor ambiguity in the reasons, the presumption may assist in demonstrating that there was no error committed. That is the situation here.
[18] In conclusion, both subjective and objective grounds for the demand were present. This ground of appeal fails.
[19] The trial judge found in the alternative that he would not have excluded the evidence in any case. Having concluded that the trial judge did not err in finding the breathalyzer grounds sufficient, it is unnecessary to consider this issue.
[20] The further argument that the trial judge’s reasons were insufficient is not borne out. Sparse as the reasons were, as the discussion above demonstrates, there are no open questions about how or why the trial judge arrived at the conclusions he did.
ISSUE #2: DID THE TRIAL JUDGE ERR IN FINDING THAT THE APPELLANT’S RIGHT UNDER SECTION 9 OF THE CHARTER WAS NOT INFRINGED?
[21] The road side screening device was administered, as recounted above, in the back seat of the police cruiser. The argument that it was unnecessary to conduct the test in the police cruiser and that it therefore constituted a breach of Section 9 of the Charter-the right not to be arbitrarily detained-was argued at trial and rejected. The argument has now been resurrected on appeal.
[22] The arresting officer testified that he requested the appellant get in the back of his cruiser to take the screening test. The two vehicles were stopped next to a sidewalk in front of a park and there was high pedestrian and vehicular traffic. It was Canada Day and the time was 7:00 p.m. The officer explained that although his general practice is to administer the test outside the cruiser, he wanted to use his cruiser for the appellant’s privacy and so that he could talk to him without people intruding and getting involved.
[23] The trial judge only briefly addressed the Section 9 Charter argument, saying that there was no violation and, in any case, it was not a case to exclude the evidence. He said he had earlier in the day released his reasons in another case and held that a similar detention in a police cruiser was not a Charter violation in the context of the breath testing regime.
[24] The trial judge’s case that he referred to has since been reported: R. v. Mahipaul, 2018 ONCJ 339, 27 M.V.R. (7th) 150. Justice Duncan said there in relation to this issue:
20 Placing defendant in police car: I do not think that the case of R. v. Aucoin stands for the proposition that placing a detainee in the back seat of a police car is per se unlawful or a Charter violation. This would particularly be so in the ASD demand situation where the officer is specifically authorized to require the detainee to accompany him for the purpose of conducting the test. The interior of a police car might reasonably be seen as an appropriate place for reasons of safety, warmth, quiet or other circumstance. In my view, Aucoin decides that a police officer cannot unilaterally expand his own powers of search by making an unnecessary and unreasonable decision as to where to place a detainee. In this case there is no evidence that placing the defendant in the police car involved any further search of his person. Accordingly, that placement did not infringe the Charter.
[25] Justice Moldaver in the leading case of R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408, relied upon by Justice Duncan in the quote above, held that detention in a police cruiser must be reasonably necessary:
34 The problem in this case arises from the shift in the nature and extent of the appellant’s detention - and the asserted need to do a pat-down search as a prelude to it - that flowed from Constable Burke’s decision to secure the appellant in the rear of his cruiser while he wrote up the ticket for the motor vehicle infractions. That decision carried with it increased restrictions on the appellant’s liberty interests, and the added feature of an intrusion into his privacy interests [a pat-down search]. Those factors, in my view, altered the nature and extent of the appellant’s detention in a fairly dramatic way - especially when one considers that the infractions for which he was being detained consisted of two relatively minor motor vehicle infractions.
39 Accepting, as the trial judge did, that Constable Burke was concerned about the appellant walking away, I am nonetheless of the view that in the context of this case, in order to justify securing the appellant in the back seat — knowing that this would also entail a pat-down search — detaining the appellant in that manner had to be reasonably necessary. [footnote omitted] In other words, the question to be asked is whether there were other reasonable means by which Constable Burke could have addressed his concern about the appellant disappearing into the crowd, short of doing what he did…
40 Without wishing to second-guess the actions of the police and recognizing, as I do, that the police are often required to make split-second decisions in fluid and potentially dangerous situations, I am nonetheless of the view that Constable Burke’s actions, though carried out in good faith, were not reasonably necessary.
(Emphasis in Original]
[26] There have been a number of cases in Ontario which have applied the “reasonably necessary” test from Aucoin. A Section 9 breach has been found in many of them--R. v. Cole, 2017 ONCJ 83 [2017] O.J. No. 977, R. v. Klotz, 2017 ONCJ 543, 17 M.V.R. (7th) 343, R. v. Azarnush, 2016 ONCJ 355, 359 C.R.R. (2d) 1, R. v. Anand, 2017 ONCJ 448, 385 C.R.R. (2d) 300, R. v. Singh, 2015 ONCJ 643, 345 C.R.R. (2d) 264, R. v. Williams, [2017] O.J. No. 5787, 399 C.R.R. (2d) 264--but not in all R. v. Dougherty, 2018 ONCJ 633, 32 M.V.R. (7th) 263, R. v. Green, 2018 ONCJ 417, 31 M.V.R. (7th) 300.
[27] In this instance, the heavy pedestrian foot traffic fully justified doing the test in the police cruiser. There was a real potential for interference with the test. A pedestrian could have knocked against the officer or the accused during the procedure. The gawking and rubber-necking of the public during the testing could also have been a substantial hinderance. There may well have been communication problems between the officer and the accused. Another factor, although secondary, was the unseemliness of conducting a police investigative procedure in a crowd of bystanders.
[28] The officer was alive to the preference to do the test outside the cruiser but made the judgment that in the circumstances it would have been unwise. A degree of latitude has to be given to an officer in the field to make these kinds of judgments.
[29] In terms of the extent of the appellant’s detention, unlike Aucoin, there does not seem to have been a pat-down search by the officer prior to the accused getting into the cruiser. It is also of some importance that the shift in the extent of the appellant’s detention occurred, also unlike in Aucoin, in the context of a criminal investigation. The minor highway traffic nature of the investigation in Aucoin was an aspect highlighted by Justice Moldaver in that case (para. 34).
[30] There was no other reasonable place or means besides the cruiser to administer the test. This was a clear case of “reasonable necessity.” The trial judge was entitled to find that there was no Section 9 breach.
[31] With respect to the sufficiency of his reasons, it might have been preferable if the trial judge had provided a short statement of the “reasonable necessity” test and then applied it to the evidence. His bare reference to the case he had decided earlier in the day would, because the accused and his lawyer were likely not present at the time, have left them in the dark.
[32] However, Justice Binnie in Sheppard said at para. 55,
Where the trial decision is deficient in explaining the result to the parties, but the appeal court considers itself able to do so, the appeal court’s explanation in its own reasons is sufficient. There is no need in such a case for a new trial.
[33] Any insufficiency is cured by the trial judge’s passing reference to his Mahipaul judgment. It is clear from the excerpt of that case above why the trial judge dismissed the Section 9 Charter argument. He found that officer’s action in requiring the appellant to take the ARD test in the cruiser was reasonably necessary.
Conclusion
[34] In his reasons, the trial judge after rejecting the reasonable grounds and arbitrary detention arguments and admitting the breathalyzer readings, there being no other arguments by the defence, found the appellant guilty. He did not specify on which of the two counts.
[35] After imposing sentence, the Crown invited the judge to enter a stay on the “over 80”, implying that there should be a conviction on the impaired driving. Defence counsel said that he had no submissions on the impaired count. The trial judge observed that no one had made submissions with respect to which count he ought to enter the conviction. It appears, although it is not without ambiguity, that the trial judge made a finding of guilt on the impaired and then imposed a conditional stay as is the usual practice. He entered a conviction on the “over 80.”
[36] However, the information, perhaps not surprisingly given the confusion, records the stay on the “over 80” and the conviction on the impaired driving.
[37] Counsel for the appellant argues that because there was little evidence or argument with respect to the impaired count and no reference to the impaired evidence in the trial judge’s brief reasons, this is another aspect of the trial judge providing insufficient reasons. I do not agree. As a practical matter, the trial was effectively over at that point and defence counsel, not Mr. Lent, seemed unconcerned upon which count the conviction should attach. The Crown was relatively inexperienced. The trial judge’s approach has to be seen in the context of the somewhat lackadaisical approach of counsel.
[38] However, I do agree with counsel on appeal that the impaired count should have been dismissed. A finding of guilt, in light of there being little evidence or argument and no reasons given with respect to it, was unreasonable.
[39] An acquittal will be entered on the impaired count. The conditional stay on the “over 80” will be lifted and a conviction entered on that count. In all other respects, the appeal is dismissed.
D.E. HARRIS J.
Released: April 30, 2019
COURT FILE NO.: CR-18-1030 SCA
DATE: 2019 04 30
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
SATNAM SINGH
Appellant
REASONS FOR JUDGMENT
[On Appeal From the Judgment
of Justice B. Duncan dated April 18, 2018]
D.E. HARRIS J.
Released: April 30, 2019