OSHAWA COURT FILE NO.: CR-18-14851
DATE: 20191126
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ELYSSA JASPER
Defendant/Appellant
Oliver Fitzgerald, for the Crown
Stephen Menzies, for the Defendant/Appellant
HEARD: July 17 and August 1, 2019
REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL
MCKELVEY J.:
Introduction
[1] At approximately 12:59 a.m. in the early morning of May 7, 2017, Ms. Elyssa Jasper was stopped at a RIDE program by the Whitby OPP. She subsequently failed a roadside breath test. Later breathalyzer tests revealed there were between 196 to 199 milligrams of alcohol in 100 millilitres of the appellant’s blood. She was charged and convicted of driving with an alcohol level of more than 80 milligrams of alcohol in 100 millilitres of blood under s. 253 of the Criminal Code.
[2] For the reasons which follow, I have concluded that the appellant’s conviction must be set aside and that a new trial should be held.
Background
[3] There were four witnesses called at trial. The Crown called the arresting officer Sergeant Marc Gravelle and the officer who conducted the breathalyzer test Constable Everoll Harris. The defence called Ms. Jasper, together with a friend who was a passenger in the same vehicle, Jennifer Watts.
[4] Sergeant Gravelle testified that he was conducting a RIDE program at the on-ramp to Highway 401 westbound at Simcoe Street in the City of Oshawa. He explained that he stopped the appellant’s vehicle at 12:59 a.m. in the early morning hours of May 7, 2017. Upon stopping her vehicle, he detected the odour of an alcoholic beverage on Ms. Jasper’s breath and observed her eyes to be red, watery and blood-shot. He asked when her last drink of alcohol was, to which Ms. Jasper responded “25 minutes ago”. He also testified that he asked where she had been coming from, to which he received the response, “the Corral”. The Corral is a reference to a bar on Simcoe Street in Oshawa. Sergeant Gravelle claimed that he formed the suspicion that Ms. Jasper had alcohol in her blood and so he read a breath demand, following which Ms. Jasper provided a breath sample into the approved screening device which registered a “fail”. Sergeant Gravelle then arrested Ms. Jasper and advised her of her s. 10(b) rights. According to Sergeant Gravelle, Ms. Jasper asked to speak to duty counsel.
[5] Sergeant Gravelle testified that at the time Ms. Jasper’s vehicle was stopped, he was accompanied by Constable Harris.
[6] Having transported Ms. Jasper to the police station, Sergeant Gravelle testified that he contacted duty counsel at the request of Ms. Jasper at 1:14 a.m. and that he, at the same time, took the Intoxilyzer off stand-by in order to minimize any further delay in taking the breathalyzer sample. Sergeant Gravelle stated that duty counsel called back at 1:23 a.m. and that the defendant was off the phone with duty counsel at 1:28 a.m. He asked Ms. Jasper whether she was satisfied with the advice received and if she understood it, to which Ms. Jasper responded, “yes, thank you”.
[7] Sergeant Gravelle testified that he then handed Ms. Jasper over to Constable Harris for the breathalyzer test. Sergeant Gravelle stated that during the course of the breathalyzer test he saw Ms. Jasper trying to blow into the breathalyzer. He noted, however, that she was not using it properly and he went into the breathalyzer room to give her some “coaching” on how to use the breathalyzer.
[8] The evidence of Constable Harris was problematic in a number of areas. While he acknowledged that he was the breath technician who conducted the breathalyzer tests on Ms. Jasper, he had no recollection of being with Sergeant Gravelle at the time of the initial stop of Ms. Jasper’s vehicle. He also initially had no recollection of what the term “RIDE” means. He also stated that he was the officer who took the Intoxilyzer instrument off stand-by.
[9] In her evidence, Ms. Jasper denied having attended at the Corral bar on that evening and also denied telling Sergeant Gravelle that she had been at that bar after she was stopped by him. She did recall being asked whether she had anything to drink that night by Sergeant Gravelle to which she answered “yes”. She also recalled that she told Sergeant Gravelle that her last drink had been 20-25 minutes previous.
[10] Ms. Jasper also testified that Sergeant Gravelle advised her of her right to speak to a lawyer and that in response to this question she answered “no”. In explaining why she didn’t want to speak to a lawyer, Ms. Jasper testified, “I just wanted to speed it up, basically and get – I didn’t want to be there, so I just….” Ms. Jasper stated that she was prepared to just go ahead and give the sample demanded by the officer without consulting with a lawyer.
[11] The passenger in Ms. Jasper’s vehicle, Jennifer Watts, also denied that they had been at the Corral prior to the stop by Sergeant Gravelle. She testified that they had gone to a friend’s house in Oshawa. She acknowledged that alcohol had been consumed at the friend’s house. Ms. Watts testified that when they were stopped by Sergeant Gravelle, Ms. Jasper told Sergeant Gravelle that they were at a friend’s house and Sergeant Gravelle asked whether they had been at the Corral. Ms. Watts stated that she told Sergeant Gravelle that they had been at a friend’s house. Ms. Watts gave no evidence as to any conversation that took place between Ms. Jasper and Sergeant Gravelle with respect to her consulting with legal counsel.
The Applicable Standard of Review
[12] The scope of appellate review on findings of fact made by the trial judge is very narrow. Findings of fact are not to be reversed unless it can be established that the trial judge made a “palpable and overriding error”. See Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. The standard of review on a question of law is correctness.
[13] In R. v. Grosse, 1996 CanLII 6643 (ON CA), [1996] 29 O.R. (3d) 785, the Ontario Court of Appeal noted that the jurisdiction of a summary conviction appeal judge to review the findings as to the sufficiency of evidence is limited. A summary conviction appeal court is not entitled to re-try the case, but to determine whether the verdict is unreasonable. This requires the appeal court judge to determine whether the trial judge could reasonably have reached the conclusion that the accused was guilty beyond a reasonable doubt. The test, therefore, is not whether the summary conviction appeal judge would have reached the same decision, but whether the trial judge’s decision was reasonable. Where evidence exists to support a factual inference, an appellate court will be hard pressed to find a palpable and overriding error. As noted by the Supreme Court of Canada in the Housen decision, it is open to an appellate court to find an inference of fact made by a trial judge is clearly wrong. However, deference is owed to a trial judge when it comes to assessing and weighing the evidence and making the factual inferences. It is not the role of the appellate court to second guess the weight to be assigned to various items of evidence. If there is no palpable or overriding error with respect to the underlying facts that the trial judge relies on to draw the inference, then it is only where the inference drawing process is palpably in error that an appellate court can interfere with the factual conclusion.
Issues on this Appeal
[14] In the appellant’s factum and initially during the course of argument, the appellant raised at least two issues which were not raised at trial. The first issue was a suggestion that the trial judge demonstrated some bias against the defence. This allegation appears to be based on some of the wording which the trial judge used in his decision. At paragraph 57 of the factum, the appellant comments on the evidence of Constable Harris and states,
Even Justice Felix concluded that P.C. Harris had “not even one iota of reliable evidence to give”. But he then makes the following finding. “Luckily the case doesn’t depend on his reliability”.
[15] At paragraph 58 of the factum, the appellant goes on to state,
I respectfully submit that this statement begs the question “Luckily for who?” Not certainly for the accused.
[16] During the course of argument on the appeal, the appellant’s counsel confirmed, however, that they were not asserting bias as a basis for their appeal in this case.
[17] A second issue raised by the appellant in its factum and initially during oral argument was the constitutionality of the original stop by Sergeant Gravelle. At paragraph 65 of the factum, the appellant states,
There is a list of evidence that was given by Sergeant Gravelle and that should have raised a reasonable doubt;
A: This officer goes out on every shift to conduct a RIDE program. The history of these random stops in our jurisprudence is important. They clearly are arbitrary and a violation of the Charter protection against unreasonable search and seizure by the SCC provided protection under Section 1 to protect the public from impaired drivers. However originally the protection was limited to well organized, well publicized RIDE programs to both still put some limits on the unfiltered police power and to make the policing even more a deterrent because of the publicity given to the possibility that a driver would enter such a RIDE stop.
It is respectfully submitted that a lone officer on his own notion, unauthorized by supervisors going out on every shift is not in fact a RIDE program and such stops should not be protected by Section 1 of the Charter.
[18] The issue of constitutionality of the RIDE stop was not argued at the trial and the position of the Crown on this appeal was that the Crown had no opportunity to respond or to provide an evidentiary basis to refute the constitutional argument. The Crown relied on the general rule that a court will not consider constitutional arguments or challenges raised for a first time on appeal. During course of argument, the appellant abandoned reliance on the constitutional argument.
[19] This left three major issues to be considered on this appeal. They are as follows:
(1) The appellant challenges the right of Sergeant Gravelle to have conducted a roadside test on the basis that there was insufficient evidence before the officer to constitute reasonable grounds to conclude that Ms. Jasper had alcohol in her body;
(2) The appellant argues that the trial judge, having made a finding that the breath technician had no reliable evidence to give was then in error for accepting the results of the breathalyzer tests; and
(3) The appellant argues that having told the police officer that she did not wish to speak to legal counsel, the delay caused when the police required her to speak to duty counsel constituted an unreasonable delay and therefore made the breath test results inadmissible at trial.
Were there sufficient grounds to justify a roadside breath test?
[20] To support her assertion that there was insufficient evidence for the trial judge to conclude that the appellant had alcohol in her body, the appellant notes that Sergeant Gravelle had no notes of any odour of alcohol and she also argued there was insufficient time between the original stop between 12:59 a.m. and the demand at 1:00 a.m. to form a reasonable suspicion. The appellant also argued that the arresting officer relied on a belief that the appellant told them she was coming from the Corral, a nearby bar, when the appellant testified that she never made this statement to the officer and had not been at the Corral bar that evening.
[21] On this issue, the trial judge made the following finding:
In this case, there is a credibility issue as to whether the Corral was mentioned or not. Having regard to W.D. although it’s not important in the resolution of this case frankly, and in the final analysis, I believe the evidence of the defendant. I don’t think she said she was at the Corral. Either the officer misunderstood or made an assumption or his, the investigating officer’s recall, is unreliable about that point. But – and this is an officer by the way, that said he didn’t note down an “odour of alcohol in his notes”
That being said, what he did note is what I carefully noted in my notes. He said, “Leaving out the Corral issue for a moment, when was your last drink of alcohol?” She said, “Twenty-five minutes ago.” The defendant testified and she corroborates that she admitted to consuming alcohol and that her response was “20 or 25 minutes ago.” The issue of where she was coming from might be important to a Charter issue or some other credibility issue, but the narrow issue here is whether the officer lawfully had reasonable suspicion that she had consumed alcohol; that’s the simple issue, nothing else.
[22] It is apparent that the trial judge relied on the evidence of both Sergeant Gravelle and the appellant to draw an inference that the police officer had reasonable grounds to suspect that the appellant had alcohol in her body which justified the roadside test. This inference was available to the trial judge, as he noted in his decision, regardless of the discrepancy between the officer and the appellant as to where the alcohol had been consumed. On this issue, therefore, I conclude that there is no evidence that the trial judge made a “palpable and overriding error” which would justify setting aside the appellant’s conviction.
Did a finding by the trial judge that the breath technician gave no reliable evidence raise a reasonable doubt that required the trial judge to acquit the appellant?
[23] As noted above, the evidence of Constable Harris had some unusual features. This led the trial judge to comment as follows in his decision,
The Breath-Tech in this case was a wonderful, decent, nice person, but had no – not even one iota of reliable evidence to give. Luckily, the case doesn’t depend on his reliability. The Crown filed the Certificate. The Certificate is the procedural shortcut that addresses proof of what the samples were. If the Crown had to rely on the Breath-Tech in this case, and there was some problem with the Certificate, that would – there would have been other issues. But the reality is, that’s not what we’re dealing with here. So notwithstanding he had not even a feather’s weight of memory of this event without using his notes, he’s really not that relevant. The Certificate was filed, it’s admissible. There’s no ability for me to toss the Certificate. There’s no lack of procedural compliance or notice or anything like that. So in these circumstances, I’m required to enter a guilty finding with respect to that matter.
[24] The comments of the trial judge with respect to the evidence of Constable Harris clearly demonstrate that he did not find him to be a reliable witness. Having said that, though, there was other evidence before the court which the trial judge was entitled to rely on to establish the blood alcohol content of the appellant. That evidence was, of course, the Certificate which was filed in evidence.
[25] There was no evidence at trial to call into question whether the machine was functioning properly or that would have undermined the integrity of the result.
[26] Pursuant to s. 258(1)(c)(ii) of the Criminal Code (as it stood prior to December 2018, and as it applies to the case at bar), evidence of the results of the analysis deems the results of the breath test to be proof of the accused’s blood alcohol level at the time of the offence in the absence of evidence to the contrary. I conclude, therefore, there was no palpable or overriding error on the part of the trial judge in accepting the results shown in the Certificate as representing the blood alcohol levels of the appellant at the time of the alleged offence.
Was there an unnecessary delay caused by the appellant being required to consult with duty counsel prior to the breathalyzer test?
[27] The appellant argues that there was an unnecessary delay in taking the breathalyzer test which was caused by Sergeant Gravelle requiring the appellant to consult with duty counsel prior to the breathalyzer test. In this regard, the appellant relies on the evidence of Ms. Jasper at trial that she declined the offer to consult with duty counsel. The position of the defence is that any delay caused by the duty counsel consultation is unreasonable and required the trial judge to acquit. In support of her argument, the appellant relied on the fact that the trial judge preferred the evidence of the appellant on the contested issue of whether the appellant declined the offer to consult with legal counsel.
[28] The trial judge relied on the decision of the Court of Appeal in R. v. Vanderbruggen, 2006 CanLII 9039 (ON CA), [2006] O.J. No. 1138. In his reasons, the trial judge framed the issues as follows,
The second issue, is the responsibility of the Crown to establish, the “as soon as practicable” requirement. In the case of Vanderbruggen, the late Justice Rosenberg gave us guidance on what that means. It means nothing more than the tests were taken within a reasonably prompt time. So what happens is, I’m not to sort of piece-meal, analyze everything that happened.
And so the second piece of wise guidance from Justice Rosenberg is that essentially I’m to look at all of the circumstances and the litmus test is really, was the officer’s conduct reasonable having regard to that timeline? In this case, I can’t say it was unreasonable; I can’t make that finding. It’s an hour. I don’t need to resolve definitively whether the officer- whether she said no, to rights to counsel. The officer said she said, yes, and he facilitated that right. She says, “I didn’t and I listened and I really didn’t need to speak to counsel.” I don’t have to concretely resolve that. If I was going to resolve it, I quite prefer the evidence of the defendant before the Court, but it doesn’t matter. Even that delay overall, having regard to the test in Vanderbruggen, is not unreasonable.
[29] With great respect to the trial judge, I am of the view that the test in Vanderbruggen is more nuanced than outlined by the trial judge in his decision.
[30] Under s. 258(1)(c)(ii), in order to properly receive the results of the breath tests, they must be taken “as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of 15 minutes between the time when the samples were taken.”
[31] In the Vanderbruggen decision, the Ontario Court of Appeal considered the meaning of “as soon as practicable” and stated that the phrase “means nothing more than that the tests were taken within a reasonably prompt time under the circumstances”. This is the portion of the definition relied upon by the trial judge in this case. However, the Court of Appeal also notes at para. 12 that, “the touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably.”
[32] In R. v. Singh, 2014 ONCA 293, 120 O.R. (3d) 76, the Ontario Court of Appeal reiterated the principles in Vanderbruggen and stated at para. 15,
It is worth repeating that the Crown is not required to call evidence to provide a detailed explanation of what occurred during every minute that the accused is in custody. These provisions of the Criminal Code were enacted to expedite the trial process by facilitating the introduction of reliable evidence to prove an accused’s blood-alcohol level. Interpreting these provisions to require an exact accounting of every moment in the chronology from the time of the offence to the second test runs counter to their purpose. As Rosenberg J.A. said in Vanderbruggen, at para. 12, “The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably.”
[33] At para. 16 of the decision in Singh, the Court of Appeal also notes that the issue of whether the samples are taken as soon as practicable is an issue of fact for the trial judge.
[34] In the present case, the trial judge considered the overall time that was taken in order to conduct the breathalyzer tests; however, he failed to consider whether the police acted reasonably in requiring the appellant to consult with duty counsel. I have concluded that in this regard, his failure constituted a legal error.
[35] In R. v. Davidson, [2005] O.J. No. 3474 (Ont. S.C.), the Court held that the police acted unreasonably if they call counsel despite an unequivocal waiver of counsel by the accused. It suggests that where such unreasonable conduct leads to a significant delay, that can lead to a conclusion that the as soon as practicable requirement has not been met. Although the Davidson decision was released prior to the Court of Appeal decision in Vanderbruggen, I am of the view that the basic principle of the decision is consistent with Vanderbruggen. it does not appear that the trial judge in this case was referred to the Davidson decision.
[36] In R. v. Littler, [2008] O.J. No. 3378 (Ont. S.C.), Justice Boswell comments on the Davidson decision. This decision, of course, post-dates the Vanderbruggen decision from the Court of Appeal which is also referenced in the decision. In commenting on the Davidson decision, Justice Boswell states,
The Appellant relies on the decision of Dawson, J. in R. v. Davidson, in which the Court set out the following seven factors to be considered when assessing the reasonableness of police conduct in contacting duty counsel for a party awaiting breathalyzer tests:
Has there been a clear and unequivocal waiver of the right to counsel by the accused?
In the absence of a clear and unequivocal waiver, was it reasonable for the police to contact duty counsel to protect the accused’s right to counsel?
Was the accused so intoxicated that it was reasonable for the police to conclude that the right to counsel may not have been fully comprehended?
If there is a clear and unequivocal waiver and yet the police proceed to call duty counsel anyways, the delay occasioned by such a call will be considered unreasonable – effectively an unexplained delay;
The innocence of the police motive is irrelevant;
There is no requirement that the accused repeat or persist in the waiver; and,
The fact that the accused ultimately accepted the call from duty counsel does not automatically constitute a withdrawal of the waiver.
[37] In the present case, the trial judge accepted the evidence of the appellant that she declined the offer of speaking to duty counsel, but did not proceed to consider factors relating to whether the conduct of the police was reasonable in the circumstances. In failing to do so, I have concluded that the trial judge made an error in law. In light of this finding, I further conclude that the conviction of the appellant must be set aside and that a new trial is required.
Justice M. McKelvey
Released: November 26, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ELYSSA JASPER
Defendant/Appellant
REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL
Justice M. McKelvey
Released: November 26, 2019