Introduction

[1] The appellant appeals his conviction under s. 254(5) of the Criminal Code of refusing to provide a breath sample rendered by Justice A. F. Leitch of the Ontario Court of Justice on April 16, 2018 (the “Judgment”). He also appeals the $300 victim fine surcharge imposed as part of his sentence. The Crown consented to the sentence appeal and the victim fine surcharge was set aside.

The Facts

[2] The appellant does not dispute the facts as found by the trial judge.

[3] On April 23, 2017, the appellant set out in his car for a day of bird watching. En route, he stopped to buy a sandwich. He ate it later, washing it down with a few alcoholic cider beverages that he had brought with him.

[4] At dusk, the Hamilton Police Service responded to a report of a man seen sitting in his car at the side of the road drinking a can of beer. At approximately 7:01 p.m. PC Nash located the appellant on County Road 5. He was in the driver’s seat of his parked car, two wheels on the road. PC Nash spoke to the appellant. She noticed a strong odour of alcohol on his breath and that his eyes were glossy and watery. PC Nash asked him if he had been drinking. The appellant responded: “I had a few”. A bag containing sealed alcohol was observed in the front seat of the appellant’s car.

[5] PC Nash asked the appellant to get out of the car. He stumbled slightly upon exiting. The appellant was then arrested for impaired care or control of a motor vehicle. PC Nash advised the appellant of his right to counsel and then made a s. 254(3) breath sample demand.

[6] PC Nash drove the appellant to the police station. During the booking, the appellant was asked to remove his jewellery. He removed his watch but said his wedding ring would not come off, as he had worn it for 37 years. When asked to make an effort to remove it, the appellant stated: “There will be conflict”. After that statement, one of the special constables grabbed the appellant’s finger and attempted to remove the ring. The officer stopped pulling when the appellant called out “ouch”. For the purposes of these reasons, the actions of the special constable in forcibly trying to remove the appellant’s wedding ring will be described as “the Assault”.

[7] The appellant was then escorted to the breath room at which time he refused to provide a breath sample stating: “It’s the principle of the matter”. The appellant also described one of the officers as a “hothead” who, he asserted, would have a “short career”. The appellant was charged with refusing to provide a breath sample.

Trial Judge’s Charter Ruling

[8] At trial, the appellant brought an application under s. 24(2) of the Charter of Rights and Freedoms (the “Charter”) to exclude the words and actions of his refusal to provide a breath sample on the basis that the Assault constituted a violation of his rights under ss. 7 and 8 of the Charter.

[9] In his Charter Ruling[^1], the trial judge refused to exclude the words and acts of refusal, which formed part of the actus reus of the offence. The trial judge stated that he was bound by R. v. Bleta[^2] and R. v. Gill[^3] and he held that a prior Charter breach could not be used to exclude the words of the refusal.

[10] The trial judge further stated that if he was wrong in his analysis, he would have found that the Assault did not violate the appellant’s s. 7 Charter rights. He concluded that the use of force to remove the appellant’s ring was “minimal and momentary”; caused “momentary discomfort”; and affected the appellant in a “minimal fashion”. (Charter Ruling, at para. 11)

[11] The trial judge considered the Grant[^4] factors and concluded that he would not have found the “minimal use of force” to have been a “serious Charter breach”. (Charter Ruling, at para. 12)

[12] The trial judge found that the impact of the Charter violation on the appellant’s Charter protected interests would also “militate in favour of the admission of the words of refusal” and also that the refusal was not “strongly causally linked to the alleged violation of section 7”. (Charter Ruling, at para. 13)

[13] Finally, the trial judge considered the societal interest in the adjudication of drinking and driving cases on their merits. He concluded that if the words of refusal were excluded, the charge would fail. He reasoned that the “more crucial the evidence is, the more serious or significant the breach must be for the exclusion to occur”.

Grounds of Appeal

[14] As set out above, the sentence appeal was resolved at the outset of the hearing.

[15] With respect to the appeal of the conviction, the appellant asserts two main grounds of appeal:

that the trial judge erred in concluding that objectively reasonable grounds existed for the s. 254(3) breath demand and, therefore, that the breath demand was unlawful; and
that the trial judge erred in his findings with respect to the impact in law of the Assault and that:

(i) the Assault was a violation of s. 7 of the Charter and, therefore, the evidence of the refusal should have been excluded pursuant to s. 24(2) of the Charter;

(ii) the Assault rendered the s. 254(3) breath demand unlawful; and

(iii) the Assault constituted a “reasonable excuse” for the appellant’s refusal to provide a breath sample.

The Law

[16] Pursuant to s. 686(1)(a) of the Criminal Code, appellate courts can set aside a verdict when (a) the verdict is unreasonable or cannot be supported by the evidence, (b) there was a wrong decision of law or (c) on any ground where there was a miscarriage of justice. It is settled law that when considering an unreasonable verdict or an error in the trial judge’s overall assessment of the evidence, an appellate court is not entitled to re-try the case and substitute its view of the evidence.

[17] The question is not whether the evidence is capable of raising a reasonable doubt or whether another judge might have convicted the respondent. Rather, the court must re-examine and, to some extent, reweigh and consider the effect of the evidence: R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122. The question is whether the verdict was one that a properly instructed jury or judge acting reasonably could have reached: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168.

[18] The standard of review on a summary conviction appeal is whether the decision of the trial judge is based on findings that could have been reasonably reached based on the evidence before him. Along with the aforementioned considerations, an appellate court should only interfere with the conclusion of the trial judge if there was an overriding and palpable error or a miscarriage of justice. An error may arise if an appeal court determines that a trial judge had committed a reversible error in considering whether or not there had been a violation of an appellant’s rights under the Charter.[^5]

Issue 1: Did objectively reasonable grounds exist at the time of the s. 254(3) demand?

[19] At paragraph 7 of the Judgment, the trial judge sets out his findings, which include that:

(a) the police had received a civilian complaint/report that the appellant was in the driver’s seat of his car with a beer can in his hand;

(b) PC Nash detected a strong odour of alcohol on the appellant’s breath;

(c) the appellant admitted to PC Nash that he had a few drinks, which the trial judge concluded meant at least three [alcoholic] ciders that day;

(d) PC Nash noted that the appellant’s eyes were glossy and watery;

(e) PC Nash observed the appellant to stumble slightly when exiting the vehicle; and

(f) PC Nash observed sealed alcohol in the bag on the seat beside the appellant.

[20] The appellant submits that, with the exception of the observation that the appellant stumbled, the other observations listed by the trial judge supported only a reasonable “suspicion” of impairment, sufficient to justify a roadside screening but not enough to justify a s. 254(3) demand.

[21] In support of this submission, the appellant relies upon R. v. Cooper, [1993] O.J. No. 501 (Prov. Ct.) at paragraph 6, in which the court found that a strong odour of alcohol says nothing about the effect of the alcohol consumption; that glassy eyes and slurred speech require a subjective assumption by the officer as to the normal state of the subject’s eyes; and that when the subject is a stranger, such observations are “weak indicators of impairment of the ability to drive.”

[22] The Crown submits that the “reasonable grounds” test is found in R. v. Bush[^6]:

[46] In the context of a breath demand, the reasonable and probable grounds standard is not an onerous test: see R. v. Wang, [2010] O.J. No. 2490, 2010 ONCA 435, at para. 17. It must not be inflated to the context of testing trial evidence. Neither must it be so diluted as to threaten individual freedom: Censoni, at para. 43.

[47] There is no necessity that the defendant be in a state of extreme intoxication before the officer has reasonable and probable grounds to arrest: R. v. Deighan, [1999] O.J. No. 2413, 45 M.V.R. (3d) 90 (C.A.), at para. 1. Impairment may be established where the prosecution proves any degree of impairment from slight to great: R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 2 O.R. (3d) 90, [1993] O.J. No. 18 (C.A.), affd (1994), 1994 CanLII 94 (SCC), 18 O.R. (3d) 800, [1994] 2 S.C.R. 478, [1994] S.C.J. No. 51. Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function, whether impacting on perception or field of vision, [page 655] reaction or response time, judgment and regard for the rules of the road: Censoni, at para. 47.

[23] At paragraph 48 of Bush, the court stated:

…Where appellate courts are called upon to review the trial judge’s conclusions as to whether the officer objectively had reasonable and probable grounds, the appellate court must show deference to the trial judge’s findings of fact although the trial judge’s ruling is a question of law reviewable on the standard of correctness: Wang, at para. 18.

[24] Bush is instructive. I find that the trial judge rightly applied the appropriate analysis. He concluded that, considered as a whole, the information available to PC Nash at the time of the demand amounted to reasonable and probable grounds to make the breath demand and enough to reasonably believe the appellant’s “ability to operate a motor vehicle was at least slightly impaired by alcohol” (Judgment, at para. 10).

Disposition of Issue 1

[25] Based on his findings of fact and the application of the principles found in Bush, I am persuaded that Leitch J. did not commit an error in accepting the constellation of factors that gave rise to the officer’s reasonable and probable grounds. I conclude that the trial judge turned his mind to the appropriate test in arriving at his conclusion and did not err in finding that the Crown established that reasonable grounds existed for the s. 254(3) demand.

Issue 2(i): Was the Assault a violation of s. 7 of the Charter? If so, should the evidence of the refusal have been excluded pursuant to s. 24(2) of the Charter?

[26] The appellant submits that it can be argued that every assault is a s. 7 violation, but acknowledges that a more “nuanced” submission is that a s. 7 violation may not be made out in every case in which the police use more force than is necessary and permitted pursuant to s. 25 of the Criminal Code. However, in this case, the appellant submits that the trial judge erred in failing to conclude that there was a s. 7 breach.

[27] The appellant submits that the trial judge misinterpreted the reasoning in R. v. Stillman[^7] when he concluded that a “minimal” intrusion would not constitute a s. 7 Charter breach. The appellant submits that the extent of the breach affects not whether there was a s. 7 breach but, rather, the remedy to be applied under s. 24(2). If the s. 7 breach is only trivial, then it would not affect the fairness of the trial and that would affect the remedy. It seems that Stillman is no longer good law with respect to the s. 24(2) analysis.

[28] The appellant submits that the more recent decision in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R 206 should be applied. The facts here are very different from those in Nasogaluak. In Nasogaluak, the trial judge found that the police used excessive force at the time of arrest: the accused suffered broken ribs and a punctured lung. At paragraph 38 of Nasogaluak, the court noted that neither party had made submissions concerning the s. 7 breach, but that on the facts, a breach was easily made out given the “substantial interference” with the accused’s physical and psychological integrity upon arrest and detention. The facts as found by the trial judge in this case are the opposite of a “substantial interference” with the appellant’s physical and psychological integrity.

[29] The Crown submits that the decision in Bedford v. Canada (Attorney General), 2013 SCC 72, has greater application to the facts here. At paragraph 91, the court noted that “[T]rivial impingements of security of a person do not engage s. 7”. The Crown submits that notwithstanding the trial judge’s findings on s. 25 of the Criminal Code, his conclusion that s. 7 of the Charter was not breached was consistent with the reasoning in Bedford and Nasogaluak, in which the courts separately considered the issues of s. 25 of the Code and s. 7 of the Charter.

[30] In Stillman, the court recognized that police actions “which intrude upon an individual’s body in more than a minimal fashion violates s. 7 of the Charter in a manner that would as a general rule tend to affect the fairness of the trial (emphasis added)”.[^8]

[31] The appellant also submitted that the trial judge erred in concluding that had he found there to have been a s. 7 violation, he would not have excluded the evidence, pursuant to s. 24(2).

[32] The appellant submits that the trial judge erred in concluding that if there had been a s. 7 violation, s. 24(2) could not be used to exclude the words and acts of refusal, as those constituted the actus reus of the offence.

[33] Notwithstanding those submissions, the appellant acknowledges that there is competing authority on this issue. In R. v. Bleta and R. v. Gill the courts concluded that s. 24(2) would not operate to exclude the actus reus of the offence. The trial judge considered himself bound by those decisions. A contrary conclusion was reached in the more recent decision of R. v. O’Shea, 2019 ONSC 1514.

[34] I conclude that the trial judge was correct in his application of the law as it existed at the time of his decision: the cases prior to O’Shea do support his finding in law that a prior Charter breach cannot be used to exclude evidence of the actus reus of a subsequent criminal offence. Even if this case had been decided after O’Shea, it would be have been open to the trial judge to follow either line of cases. Accordingly, this ground of appeal fails.

[35] In his Charter Ruling, the trial judge stated that if he was wrong in his analysis concerning the exclusion of the actus reus, he would have found that the Assault was not a s. 7 Charter violation.

[36] In reaching that conclusion, the trial judge found that:

(a) the request for the appellant to remove his wedding ring was reasonable;

(b) it was not reasonable for the police to use force to remove the ring after the appellant said it could not be removed;

(d) the police actions caused momentary discomfort to the appellant;

(e) the officer ceased her attempt to remove the ring as soon as the appellant indicated it was painful; and

(f) the attempted removal of the ring was not the true reason for the appellant’s refusal.

[37] Despite his conclusion that there had been no Charter breach, the trial judge considered whether applying the three Grant factors would lead to an exclusion of the evidence under s. 24(2).

[38] The appellant submitted that, as the trial judge did not find a s. 7 breach, his analysis with respect to the applicability of the Grant factors should be ignored. I disagree. While an alternate finding may not attract the deference of an appellate court, I conclude that the trial judge was correct in his analysis of the Grant factors.

[39] The trial judge found that the minimal use of force caused momentary discomfort and that there had not been a serious Charter breach. The trial judge’s factual finding concerning the nature and impact of the Assault is both reasonable and deserving of deference. Based on those findings, I conclude that the trial judge did not err in concluding that the Assault was not a “serious” Charter breach.

[40] The trial judge next considered the impact of the alleged Charter violation on the appellant’s Charter-protected interests.

[41] The trial judge found that the alleged momentary breach was not causally linked to the appellant’s refusal to provide a breath sample. He reached that factual finding based on the videotape of the appellant in the breath room and the appellant’s statement that he would not provide a sample because he had not been drinking or driving. The trial judge rejected the appellant’s trial evidence that part of the reason for his refusal was the Assault. These factual findings must be given deference and his determination of the impact upon the appellant’s Charter-protected rights is well-founded and correct.

[42] The trial judge considered the third prong of the Grant test and, as conceded by the appellant, correctly concluded that society does have a significant interest in the adjudication of drinking and driving cases on their merits.

Disposition of Issue 2(i)

[43] For the reasons set out above, I find that the trial judge did not err in his conclusion that that there had been no s. 7 breach or, alternatively, that if there had been a s. 7 breach, that the words and acts of the refusal would not be excluded, pursuant to the operation of s. 24(2) of the Charter.

Issue 2(ii): Did the Assault render the s. 254(3) demand unlawful?

[44] The appellant concedes that the s. 254(3) demand was made at the roadside but that the subsequent Assault rendered the demand unlawful. The appellant refers to no authorities in support of his position.

[45] The Crown submits that even if a court were to conclude that the Assault constituted a s. 7 violation, it could not retroactively render invalid a previously valid s. 254(3) demand. As set out above, I have found that the trial judge did not err in finding that the Crown established that reasonable grounds existed for the s. 254(3) demand.

[46] The Crown submits that a reasonably-conducted search is not one of the elements of the offence and that the Crown need not prove that the attempted search was reasonable.[^9]

[47] I accept the submissions of the Crown that, although the appellant might assert that the attempted removal of the wedding ring constituted reasonable excuse for refusing to provide a breath sample, it would not affect the validity of the demand.

Issue 2(iii): Did the Assault constitute a “reasonable excuse” for the appellant’s refusal to provide a breath sample?

[48] The appellant submitted that the Assault was one of the reasons for the refusal. In his evidence at trial, the appellant testified that by the time he reached the breath room, he had suffered a series of little injuries including that his right hand was still numb from the tight handcuff, his head was hurting, having been banged against the window of the cruiser. He acknowledged that neither the tight cuffs, nor the head banging, occurred by reason of any malice. The appellant stated that the third and final straw for him was the ring incident, at which point, he became very upset and “kind of lost it. So, when I went into the breath-room, my head was full of anger, and fear, and outrage, and surprise, and so what things were motivating the things I said, or the actions I took at that point I’m not certain about, but I was very upset”. (Transcript of proceedings, April 9, 2018 at pages 29-30)

[49] In his Judgment, the trial judge considered the foregoing and specifically rejected the appellant’s evidence that these were the reasons for his refusing to provide a breath sample. The trial judge found as a fact that the appellant “was angered by the attempt to take his ring but I do not believe that is why he refused. He refused out of principle, his belief that he need not submit to a demand because, in his mind, he was not impaired and he was not actually operating the motor vehicle when the police found him. This mistake of law is not a reasonable excuse”. (Judgment, at para. 12)

[50] Earlier in the Judgment, the trial judge states: “At no time does [Dr. Bullock] say that he will refuse to provide a sample because of his treatment and he attempted to take off his ring. He does make a reference to the officer who accused him of making a threat, saying that he is a hothead and will have a short career”. (Para. 4)

[51] The appellant submits that the trial judge erred in law when he drew an inference from what the appellant said after the actus reus, about why the appellant refused to provide a breath sample. The appellant submits that there is no onus on an accused to positively assert a “reasonable excuse” at the time of refusal and that if an adverse inference is drawn from a failure to assert a “reasonable excuse” this may infringe on the accused’s right to silence.

[52] The appellant’s submissions rely in part on R. v. Rivera.[^10] However, the facts here are distinguishable. In Rivera, the accused said nothing about why she would not offer a roadside breath sample. It turned out that she was silent because she was suffering a panic attack. The court held that silence cannot be used to show a lack of reasonable excuse.

[53] The appellant was not required to give a reason for refusing to provide a breath sample and he did so of his own volition. Despite his numb hand and bumped head and sore finger, and the emotional effect he claimed those had on him, the appellant mentioned none of those reasons when he refused to give a breath sample. Instead, the appellant refused to provide a breath sample because he had not been drinking or driving.[^11]

[54] At trial, the appellant asserted that an equal reason for refusing to provide a sample was the conduct of the police. The trial judge did not believe him. Having watched and listened to the appellant, the trial judge was in a good position to assess the appellant’s truthfulness as to why he refused to offer a breath sample. The trial judge’s assessment of that evidence discloses no palpable or overriding error and his perceptions should be respected.[^12]

[55] The appellant argues that the trial judge was wrong to conclude that the appellant’s silence about the Assault means that the Assault did not provide a reasonable excuse for refusing to provide a breath sample. The appellant submits that he was not obligated to give any excuse and to reject the Assault as an excuse for his refusal because the appellant did not mention it at the time of his refusal violates the appellant’s right to silence.[^13]

[56] The appellant relies on R. v. Moser[^14] in support of his submission that the trial judge erred in requiring “too close a nexus between” the appellant’s “subjective state of mind and an otherwise objectively ‘reasonable excuse’ for refusing to provide a breath sample”.

[57] In Moser, the accused was asked for a breath sample following a serious car accident. Unbeknownst to him, he had broken his neck in the accident. Although the accused was unaware of the nature and extent of his injuries when he refused to provide a breath sample, the court held that the injuries constituted a reasonable excuse. At para. 14 the court stated:

…I see no reason why the defence of reasonable excuse should be confined to matters in the mind of the accused, to the exclusion of dangerous conditions not fully known or recognized by the accused…

[58] The trial judge did, however, turn his mind to whether the Assault constituted a reasonable excuse and determined that it did not.[^15] Having thoroughly examined the evidence that constituted the Assault, the trial judge concluded “that it was minimally intrusive” and that the appellant failed to meet his onus to establish on a balance of probabilities that the Assault constituted a reasonable excuse to refuse to provide a breath sample.

Disposition on Issue 2(iii)

[59] I conclude that the trial judge did not err in his assessment of the appellant’s evidence and that he reasonably concluded that:

(a) the Assault played no part in the appellant’s decision to refuse to provide a breath sample; and

(b) the appellant failed to show that the Assault constituted a reasonable excuse for his refusal to provide a breath sample.

Conclusion

[60] For the reasons set out above, the appeal from the conviction is dismissed. The sentence appeal is granted and the $300 victim fine surcharge is set aside.

Sheard J.

Released: June 11, 2019

COURT FILE NO.: 18-0088-00AP

DATE: 20190611

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen

Respondent

– and –

Richard Wayne Bullock

Appellant

REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL

Sheard J.

Released: June 11, 2019

[^1]: [2018] O.J. No. 2140 [^2]: [2012] O.J. No. 944 (SCJ) [^3]: [2015] O.J. No. 6787 (SCJ) [^4]: R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223 [^5]: R. v. Rivera, 2011 ONCA 225 [^6]: 2010 ONCA 554 [^7]: 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607 [^8]: At para. 92 [^9]: R. v. Goleski, 2014 BCCA 80, at para. 81 [^10]: 2011 ONCA 225 [^11]: Judgment, at para.12 [^12]: R. v. Gagnon, 2006 SCC 17 [^13]: R. v. Rivera, at para 120 [^14]: 1992 CanLII 2839 (ON CA), [1992] O.J. No. 602 (C.A.) [^15]: Judgment, at para. 11

R. v. Bullock, 2019 ONSC 3504

Case Summary

Introduction

The Facts

Trial Judge’s Charter Ruling

Grounds of Appeal

The Law

Issue 1: Did objectively reasonable grounds exist at the time of the s. 254(3) demand?

Disposition of Issue 1

Issue 2(i): Was the Assault a violation of s. 7 of the Charter? If so, should the evidence of the refusal have been excluded pursuant to s. 24(2) of the Charter?

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 4

Legal Tests 2

Legislation 6