COURT FILE NO.: SCA(P) 1266/18

DATE: 20190927

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL

BETWEEN:

HER MAJESTY THE QUEEN

Appellant

– and –

ALBERTO RINCON

Respondent

Patrick Quilty, for the Crown Appellant

Nicholas Xynnis, for the Respondent

HEARD: September 20, 2019

REASONS FOR JUDGMENT

[On Appeal from the Judgment of Justice D. McLeod, dated September 17, 2018]

J.M. Woollcombe J.

A. Introduction

[1] The Crown appeals from the decision of Justice D. McLeod acquitting the respondent, Alberto Rincon, of one count of impaired driving and of one count of operating a motor vehicle with blood alcohol over 80 milligrams in 100 millilitres of blood (“over 80”).

[2] The trial proceeded by way of a blended voir dire/ trial. The respondent had brought a Charter application alleging a breach of s. 8 and seeking, as a s. 24(2) remedy, the exclusion of his breath samples. During his submissions at trial, counsel suggested that there was also a s. 9 breach from the respondent’s unlawful arrest and detention. In relation to the impaired driving charge, it was the defence position that there were no indicia of impairment and that the arresting officer lacked objectively reasonable ground to justify the arrest for impaired driving. Further, the defence position was that the Crown hade not proven the impaired charge beyond a reasonable doubt.

B. Summary of Relevant Evidence

[3] The evidence is not in dispute.

[4] At about 2:45 a.m. on September 3, 2017, Peel police Constables Scott and Bittner were partnered in a uniformed capacity in a marked police cruiser. As the officers drove on westbound on Highway 403 in Mississauga, they saw the respondent’s car travelling ahead of them in the same direction at around the speed limit. Initially, the respondent was about 300 metres ahead of them. They caught up to him and pulled directly behind him. Their observations included:

a. The respondent car’s taillights were off and were never turned on;

b. The respondent was driving in the far-right lane, but had his right indicator on;

c. The respondent was “continually weaving” within his lane from left to right over a distance of about 200 to 300 metres.

[5] As a result of their observations, the officers decided to conduct a traffic stop of the respondent. They flashed the police car’s emergency lights, as well as the headlights. They also utilized intermittent siren blasts. The respondent’s car began to pull over to the right shoulder and was braking, but it then pulled back into the lane, deactivated the brakes and continued driving for 100 metres before slowly pulling to the shoulder and stopping. Traffic was very light and, according to Constable Bittner, the only cars on the highway were the police cruiser and that of the respondent. Constable Scott said it was “unusual behaviour” for a driver to begin to pull over, brake and then return to their lane and stop braking.

[6] Once the respondent was stopped, at 2:46 a.m., the police approached his car. They noted that his front and rear driver side windows were lowered and that the passenger side window was slightly down. As they approached the vehicle, they both noted a strong odour of alcoholic beverage from within it.

[7] Constable Scott told the respondent why he had been stopped. Both officers made observations of him. These included:

a. The respondent had red-rimmed, glossy eyes;

b. The respondent admitted having had “a couple” of drinks “earlier” and said “I’m sorry, I’m sorry”;

c. When speaking to the respondent, Constable Scott noted that he had slurred speech, which he described as “similar to a heavy tongue or a swollen tongue”. Constable Bittner said that even for a person with an accent, the respondent had a “heavy tongue”.

[8] When questioned about their observations under cross-examination, the officers’ evidence included:

a. That bloodshot eyes can have innocent causes such as fatigue;

b. That the respondent’s weaving had only been within his own lane;

c. That the respondent did not exceed the speed limit;

d. That sometimes drivers are not sure whether they are the target of police interest and so are not sure whether they are supposed to pull over;

e. That over the time Constable Scott saw the respondent at the roadside and in the breath room, there were no huge changes in indicia of impairment or in his deportment.

f. That the respondent was cooperative and polite in the breath room and that Constable Scott did not note a flushed face or anything unusual about the respondent’s balance.

[9] As 2:47 a.m., Constable Scott arrested the respondent for impaired driving. The officer testified that he had reasonable grounds to believe that the respondent’s ability to operate a motor vehicle was impaired by alcohol. The respondent was provided with his rights to counsel and cautioned. At 2:52 a.m., the officer read him the breath demand, which the respondent said he understood. He was taken to the police station where, after speaking with duty counsel, he was transferred to the breath technician at 3:36 a.m. Breath samples taken at 3:40 a.m. and 4:02 a.m. resulted in readings of 117 and 111 milligrams of alcohol in 100 millilitres of blood.

[10] The breath technician’s observations of the respondent included that there was an odour of alcoholic beverage on his breath, that his eyes were bloodshot, that his speech was good, that he was cooperative and that his balance was good.

C. The trial judge’s reasons for judgment

[11] After summarizing the evidence and positions of the parties, the trial judge stated the following respecting the alleged s. 9 breach:

When looking at the evidence, this court has looked at the reasons for the stop in the first place, the no tail light, the blinkers continuously on, the heavy tongue as it was suggested, and the smell of alcohol. I’ve looked through the cases of R. v. Bush as well as the standard for reasonable grounds. I’ve noted paragraphs 36 to 38, 43, 45 and 46, as well as the analysis under Bush of paragraphs 55 and 56. I have also looked at Censoni, paragraphs 35, 38 and 41.

It is the belief of this court that there is a threshold that must be maintained and any deviation from that standard should still be considered when looking at the reasonable probably grounds, as well as a detention. In this matter, the RPG for the arrest were not met, this court would suggest, when viewed objectively. And as a result, this court is of the belief that there is a section 9 breach.

[12] On the s. 24(2) issue, the trial judge’s reasons appear to me to be, in their entirety, the following:

When it relates to the seriousness of the breach, this court must maintain an suggest the integrity of the public confidence in the administration of justice. This court is of the belief that there is a line and that line is one that must be looked at very seriously when dealing with cases where there is a detention. This is not with respect to the stop, but more with respect to the detention. And as such, it is not something that is saved under s. 24(2), so the evidence will be excluded.

[13] The trial judge then addressed the impaired driving charge:

I will hasten, though, to add here that if it were that the impaired was something that was going to be looked at at this court, that this court was of the belief that on the basis of the indicia that I would have had a doubt with respect to the charge in any event, with respect to the impairment.

D. Whether the trial judge’s reasons for judgment allow for meaningful review

[14] On appeal, the Crown submits that the trial judge’s reasons are incomprehensible and do not allow for meaningful review.

[15] It is well-established that appellate courts are to take a functional and context specific approach when reviewing the adequacy of reasons for judgment. Reasons must explain the verdict, provide public accountability and permit effective appellate review. Reasons must show why a trial judge decided the case as he or she did, but need not set out every finding or conclusion that was made in reaching a decision: R. v. Wolynec, 2015 ONCA 656 at paras. 55-57.

[16] An appeal based on an insufficiency of reasons should only be allowed where the reasons are so deficient that they foreclose meaningful review R. v. Sheppard, 2002 SCC 26 at para. 55; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3; R. v. J.L., 2018 ONCA 756. This necessarily means reading the reasons for judgement as a whole, in the context of the evidence and arguments at trial, and with an appreciation of the purpose for which reasons are given.

[17] There is no question that trial judges’ duty to give reasons applies to both convictions and acquittals: R. v. Sliwka, 2017 ONSCA at para. 26.

[18] It is not disputed that the police were entitled to conduct a traffic stop of the respondent. The real issue for the trial judge was whether the arresting officer had reasonable and probable grounds for the impaired driving arrest. If he did, he was entitled to make the breath demand and detain the respondent and there was no violation of ss. 8 or 9 of the Charter. If he did not, the arrest resulted in a s. 9 violation and the taking of the breath sample resulted in a s. 8 Charter violation. The question then became the admissibility of the breath sample under s. 24(2) of the Charter.

[19] The trial judge concluded that the officer lacked, objectively, grounds for the arrest and thus that there was a s. 9 breach. I have read and re-read his reasons for judgment. I am unable to determine from those reasons why the trial judge concluded that Constable Scott lacked reasonable and probable grounds for the respondent’s arrest.

[20] Counsel for the respondent says that while the trial judge’s reasons are brief, the only possible inference to be drawn is that the trial judge did not find that the totality of the factors that the officer relied upon were sufficient for him to have objectively viewed reasonable grounds to arrest. Counsel says that in his submissions at trial, defence counsel gave the trial judge a roadmap to come to this conclusion and that this must be what the trial judge did.

[21] I agree that at trial, defence counsel made detailed submissions for the trial judge’s consideration. Counsel advanced arguments as to why the trial judge should conclude that the officer lacked reasonable grounds for the arrest. For instance, he noted that the red-rimmed glossy eyes could have been from fatigue. He also observed that the respondent had an accent when he spoke English and that the officers had never spoken to him before thus reducing the value of their observation that he had been slurring. Counsel highlighted that the breath technician had not observed the presence of indicia of impairment that might have been present had the respondent been intoxicated.

[22] On the other hand, the Crown also advanced arguments to support its position that the officer had reasonable grounds for arrest. The evidence relied upon included the officers’ observations of the respondent’s driving: the taillights not having been on, the weaving, the unusual behaviour in starting to brake and then aborting this first attempt to pull over in response to the police lights and siren. It also included the observations made by the police after the respondent’s vehicle was stopped: the respondent’s red rimmed, glossy eyes, his slurred speech, the strong odour of alcohol from the respondent’s vehicle, the respondent’s admission that he had consumed a couple of drinks and his apology.

[23] Before stating his conclusion that there had been a s. 9 breach, the trial judge seems to have reviewed some of the reasons why the respondent was stopped, noting the absence of tail lights and right indicator being on. He also mentioned that the police had observed that there was a smell of alcohol and that the respondent had a “heavy tongue”. In my view, merely referring to some of the evidence relied upon by the officer for the arrest, and then concluding that there was an absence of reasonable grounds to make the impaired driving arrest, does not meet the requirement that reasons explain why the trial judge reached the conclusion that he did.

[24] I accept that there were triable issues in this case including whether there were, objectively, grounds for the arrest. It was for the trial judge to make factual findings about the evidence, including what he believed and accepted and what he did not. He did not do so. Further, before reaching the legal conclusion that the arrest was made in the absence of reasonable and probable grounds, the trial judge was required to consider the evidence that was relevant to this inquiry and to explain why the evidence and his findings led to this conclusion. With respect, I do not think he did so.

[25] The absence of explanation by the trial judge as to why the officer lacked reasonable and probable grounds for the arrest effectively forecloses the Crown’s ability to challenge his legal conclusion on appeal. Appellate review is impossible. On this basis alone, the appeal must be allowed.

[26] In respect of the s. 24(2) analysis, I am, again, not persuaded that the trial judge’s reasons explain why he reached the conclusion that he did respecting the admissibility of the breath test results. The trial judge appears to have made a finding about the seriousness of the breach. However, I am unable to discern from his reasons any explanation for his conclusion that this breach was particularly serious. Again, those forecloses meaningful appellate review of his finding.

[27] Furthermore, even if the trial judge concluded that the breach was serious, his reasons say nothing about the other two prongs of the analysis set out in R. v. Grant, 2009 SCC 32 or why, having applied the correct legal analysis, he excluded the evidence. He was required to do so. The absence of reasons makes appellate review of his determination to exclude the breath samples under s. 24(22) impossible.

[28] On the basis of an insufficiency of adequate reasons on the s. 24(2) exclusion of evidence, as well, the appeal must be allowed.

[29] In respect of the impaired driving charge, the trial judge’s reasons for acquitting were brief. He simply concluded that the indicia of impairment in this case would not have satisfied him beyond a reasonable doubt as to the respondent’s guilt. The Crown acknowledges that this conclusion was available to the trial judge on the evidence.

[30] While the trial judge did little to explain his reasons for not being satisfied of the respondent’s guilt beyond a reasonable doubt, his reasons appear to be that the totality of the evidence did not prove the charge. I am not persuaded that his reasons preclude appellate review and, as a result, there is no basis upon which to order a new trial on this count.

A. Conclusion

[31] The Crown appeal is allowed in respect of the over 80 charge and a new trial, before a different judge, is ordered. The matter is remanded to courtroom, #104 at 9:00 a.m. on October 4, 2019 to be spoken to in the Ontario Court of Justice.

Woollcombe J.

Released: September 27, 2019

COURT FILE NO.: SCA(P) 1266/18

DATE: 20190927

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

ALBERTO RINCON

REASONS FOR JUDGMENT

[On Appeal from the Judgment of

Justice D. McLeod, dated September 17, 2018]

J.M. Woollcombe J.

Released: September 27, 2019