ONTARIO SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
COURT FILE NO.: 3/19
DATE: 20191220
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
– and –
GEOFFREY BRUNT
Respondent
A. Khoorshed, for the Respondent
D. Lent, for the Appellant
HEARD: December 11, 2019
[On appeal from the judgment of Harris J. dated December 21, 2018]
MILLER J.
[1] Geoffrey Brunt was found guilty of, on the 11th day of September, 2017, Driving Over 80mg Blood Alcohol, S. 253(1)(b) C.C.C. He appeals from this decision on the basis that the trial judge erred in finding no breach of s. 8 of the Charter, and in the trial judge’s alternative analysis of s. 24 (2). Mr. Brunt further appeals on the basis that the trial judge erred in finding that the breath samples were taken as soon as practicable.
[2] The Crown submits that the trial judge correctly found no breach of s.8 of the Charter, but that in the alternative, the trial judge’s analysis and conclusion in respect of s. 24 (2) that the evidence of breath sample analysis should not be excluded as evidence was correct. The Crown further submits that the trial judge made no error in concluding that the breath samples were taken as soon as practicable.
S. 8
[3] The basis for Mr. Brunt’s submission that he was subject to unreasonable search and seizure of his breath samples in violation of section 8 of the Charter was predicated on his position that the approved screening device (ASD) demand made at the roadside was unlawful as there were not sufficient objective grounds to believe that he had alcohol in his body while driving a motor vehicle and that the subsequent s. 253(4) demand was also unlawful as the officer making the demand could not have subjectively believed that the result of the ASD was reliable.
The ASD Demand
[4] Mr. Brunt submits that the trial judge erred in finding the Crown had discharged its onus to satisfy the Court that arresting officer had both the subjective and objective grounds to conclude that there was a reasonable suspicion that the Appellant was driving with alcohol in his body at the time of the roadside screening demand.
[5] It is not disputed that a breath sample received as a result of a roadside breath demand is a warrantless search and therefore the onus is upon the Crown to prove it was a lawful search. R. v. Haas 2005 26440 (ON CA), [2005] O.J. No 3160. Nor is it disputed that in discharging this onus the Crown must establish that the arresting officer had the appropriate objective and subjective grounds for a S. 254(2) demand. R. v. Storrey 1990 125 (SCC), [1990] 1 S.C.R. 241.
[6] The Crown submits that the smell of alcohol on a driver's breath, alone, is sufficient to justify a roadside breath demand. R. v. Lindsay, 1999 4301 (ON CA), [1999] O.J. No. 870 (Ont.C.A.); R. v. Butchko, 2004 SKCA 159, [2004] S.J. No. 735 (Sask.CA.) and that even in the face of a denial of alcohol consumption, the odour of alcohol is sufficient to form the basis for a s. 254(2) demand. R. v. Carson, 2009 ONCA 157, [2009] O.J. No. 660 (Ont.C.A.)
[7] The Crown submits that given the wealth of evidence that justified the officer's demand, the trial judge correctly held that the officer's demand was justified.
[8] I am satisfied that the trial judge correctly identified the test and the factors to be considered in assessing reasonable suspicion, as defined in R. v. Chehil, 2013 SCC 49, [2013] S.C.J. No. 49 (S.C.C.) para. 27 and referred to these as set out by Karakatsanis J. in that decision as follows:
[20] The reasonable suspicion standard requires that the entirety of the circumstances, inculpatory and exculpatory, be assessed to determine whether there are objective ascertainable grounds to suspect that an individual is involved in criminal behaviour. It does not require the police to investigate to rule out exculpatory circumstances.
[21] Reasonable suspicion must be based on objectively discernible facts, which can then be subjected to independent judicial scrutiny which is exacting, and must account for the totality of the circumstances.
[22] She cited the reasons of Binnie J. in R. v. Kang-Brown, where he provided the following definition of reasonable suspicion:
The "reasonable suspicion" standard is not a new juridical standard called into existence for the purposes of this case. "Suspicion" is an expectation that the targeted individual is possibly engaged in some criminal activity. A "reasonable" suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.
[23] Reasonable grounds to suspect and reasonable and probable grounds to believe. are similar in that they both must be grounded in objective facts, but reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime.
[24] Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience. A police officer's grounds for reasonable suspicion cannot be assessed in isolation.
[25] Reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors. Factors that give rise to a reasonable suspicion may also support completely innocent explanations. This is acceptable, as the reasonable suspicion standard addresses the possibility of uncovering criminality, and not a probability of doing so.
[26] Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors. The totality of the circumstances, including favourable and unfavourable factors, must be weighed in the course of arriving at any conclusion regarding reasonable suspicion.
[27] However, the obligation of the police to take all factors into account does not impose a duty to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations.
[28] It is not permissible for the reasonable suspicion inquiry to assess circumstances learned after the execution of the search.
[9] It was conceded at trial that the officer subjectively had the requisite suspicion before making the approved screening device demand; the trial judge was satisfied that the evidence met the objective standard as well.
[10] In coming to this conclusion, the trial judge specifically referred to and relied on the following evidence:
At 5:20 p.m., Constable Dominelli was dispatched to investigate a possible impaired driver. A man had been refused service at the LCBO. He got into his motor vehicle and drove away.
Constable Dominelli drove to the address of the registered owner of that vehicle. At 5:29, Mr. Brunt drove up in a vehicle that matched the description provided.
Constable Dominelli spoke to Mr. Brunt and smelled alcohol coming from his breath.
Mr. Brunt admitted to drinking two beers approximately an hour earlier.
[11] The trial judge did not, in his reasons, advert to the officer’s testimony in cross-examination that his detection of the smell of alcohol on Mr. Brunt’s breath occurred while he was outside of the vehicle and Mr. Brunt was inside the vehicle.
[12] Counsel for Mr. Brunt submits that it was not objectively reasonable to conclude in those circumstances, that the smell of alcohol was coming from Mr. Brunt’s breath as opposed to somewhere else within the vehicle. He submits there were not objectively reasonable grounds to suspect Mr. Brunt had alcohol in his body while in care or control of a motor vehicle.
[13] It is clear that the officer’s grounds are not to be considered in isolation. Mr. Brunt’s verbal confirmation that he had consumed two beers approximately an hour earlier supported the officer’s conclusion that he smelled alcohol on Mr. Brunt’s breath. I am satisfied the trial judge made no error in concluding that there were reasonable grounds for the ASD demand.
The s. 254(3) Demand
[14] Counsel for Mr. Brunt submits that that the trial judge erred in concluding that the Crown had discharged its onus with respect to grounds which were required for a Section 254(3) C.C.C. demand.
[15] Mr. Brunt submits that Officer Dominelli could not rely upon the fail received from the roadside screening device (which were the only grounds he had) as the basis for the s. 254(3) demand. Mr. Brunt submits that subjectively Officer Dominelli could not believe he was getting an accurate result due to the fact that he stated that the roadside screening device was to be calibrated every 14 days in accordance with protocol and he knew that it was 15 days when the device was being used and he knew he did not do a self test.
[16] Counsel for Mr. Brunt agrees that the trial judge correctly stated the law in respect of the objective part of the test as stated in the reasons for judgment at paragraph 46 as follows:
The Crown is not required to prove in every case that the device was in proper working order. The test is whether, on an objective basis, the officer had reasonable grounds for believing that the approved screening device was in good working order. R. v. Topaltsis, (2006 26570 (ON CA), 2006] O.J. No. 3181 (Ont. C.A.); R. v. Mandarino, (2010] O.J. No. 856 (Ont. C.A.); R. v. Pelletier, (2017] O.J. No. 4508 Ont. S.C.J.) a summary conviction appeal per Poupore J. at para. 14.
[17] Counsel relies on R. v. Lemos [2017] O.J. No.5137 in support of his position that the officer could not have subjectively believed that the device was in proper working order. In that case, Schwartzl J, at paragraph 13 held that “Knowing the instructions but not following them eviscerated any subjective belief of [the officer] that the screening test result was reliable. Thus, in these circumstances, the officer’s reliance on the fail to make a breath demand was not reasonable.”
[18] Mr. Brunt submits that the trial judge erred by approaching the argument on the basis of only an objective test as revealed in paragraph 44 of the reasons for judgment. Paragraph 44 reads as follows: “ Counsel also argued that Constable Dominelli could not objectively believe that the approved screening device was in proper working order because he had not performed a self-test on the device.”
[19] It is clear from the content of this paragraph that the trial judge did not consider the objective test in isolation. On the reasons for judgment as an whole, the trial judge clearly considered both aspects of the argument made on behalf of Mr. Brunt. The trial judge found on a balance of probabilities at paragraph 47 both that the officer subjectively believed that that the approved screening device was in good working order and that his belief was objectively reasonable.
[20] In Lemos, in addition to failing to follow instructions to complete a self-test, the administering officer also failed to consider the possibility of a false positive caused by the consumption of sugary foods or beverage as he knew he was required to do.
[21] Here the trial judge relied on the following evidence:
Constable Dominelli testified that he did not do a self-test because he assumed that Constable Ng, who brought the device to Constable Dominelli, had done so. Usually the officer who takes a device out conducts a self-test at that time. Constable Ng testified that he had tested the device and was satisfied that it was in proper working order.
The trial judge concluded that it was reasonable for Constable Dominelli to assume that Constable Ng would not have given him the approved screening device if it was not in proper working order.
[22] The Crown submits that the law is clear that if the reliability of the ASD is not impugned at trial, no reliability issue can arise. Police officers are entitled to rely on the accuracy of the ASD unless there is credible evidence to the contrary. There lies a significant evidentiary onus on the defence to cast doubt on the officer's belief in the reliability of the ASD result. R. v. Beharriell, [2014) O.J. No. 882 (S.C.J.) and R. v. Mastromartino 2004 28770 (ON SC), [2004] O.J. No. 1435 (S.C.J.)
[23] The Crown further relies on R. v. Jennings, 2018 ONCA 260, [2018] O.J. No. 1460 (Ont.C.A.) in which the arresting officer had failed to follow his training in the use of the ASD. The Trial Judge and SCA judge had found this to invalidate the officer's grounds for arrest. The Ontario Court of Appeal disagreed and found no breach.
[24] I find that there was a proper evidentiary basis for the trial judge to find as he did. I find that the trial judge made no error in concluding that Mr. Brunt’s rights pursuant to s. 8 of the Charter had not been violated.
s. 24(2)
[25] In the circumstances it is not necessary that I go on to consider the trial judge’s alternative assessment as to whether, had there been a breach of s. 8 of the Charter, the results of the breath tests should be excluded from evidence.
[26] I will indicate, however, that in light of the Ontario Court of Appeal decision in Jennings, I would not take issue with any aspect of the trial judge’s analysis or conclusions under s. 24 (2).
As Soon As Practicable
[27] As correctly stated by the trial judge at paragraphs 81 and 82 of his reasons for judgment:
[81] The presumption of identity, set out in section 258(1)(c)(ii) of the Criminal Code, provides that the results of breath tests are, in the absence of evidence to the contrary, deemed to represent the blood alcohol level of the accused at the time of driving.
[82] Before this presumption can apply, the Crown must establish beyond a reasonable doubt that a number of preconditions have been met. These include the requirement that two breath tests must be conducted using an approved instrument operated by a qualified technician. The first test must occur not later than two hours after the offence was alleged to have occurred. The second test must occur at least 15 minutes later and both tests must occur as soon as practicable.
[28] Mr. Brunt submits that there are three “gaps” in the evidence that remain unexplained by any admissible evidence and that therefore the trial judge erred in concluding that the Crown had proved beyond a reasonable doubt that the tests were taken as soon as practicable within the meaning of Section 258(1)(c)(ii) Criminal Code.
[29] The Crown submits that it is incorrect to engage in a moment by moment analysis of the passage of time, and that the trial judge correctly found that in considering the overall passage of time that both tests had been taken as soon as practicable.
[30] In respect of this issue the reasons for judgment contain the following findings of fact at paragraphs 86-95:
[86] …Mr. Brunt was stopped at, or shortly after 5:29 p.m.
[87] The first breath test was completed at 7:04 p.m. It therefore occurred about one hour and 35 minutes later. That was well within the two hour limit.
[88] That is not determinative of the as soon as practicable issue but it is a factor that I should take into account.
[89] Starting at 5:29 p.m. Constable Dominelli was beside the Brunt motor vehicle and spoke to the driver, Mr. Brunt.
[90] At 5:20 he formed his reasonable suspicion. He made the approved screening device demand and requested that a device be brought to him.
[91] The device arrived at 5:24.
[92] Mr. Brunt provided a sample of his breath and registered a "fail" at 5:34.
[93] Constable Dominelli arrested him, read right to counsel and cautions and a demand. They left the scene at 5:40.
[94] They arrived at the police station at 6:09.
[95] He was seen there by Staff Sergeant Davies at 6:20.
[31] Mr. Brunt submits that the trial judge erred in concluding that the evidence presented by the Crown explained a delay of 11 minutes from 6:09 p.m. when Mr. Brunt arrived at the police station through to 6:20 p.m. when he was first seen by the booking officer Staff Sgt. Davies. The evidence revealed that Staff Sgt. Davies had no notes of this particular investigation and no independent memory of same. Counsel for Mr. Brunt submits that in paragraph 96 of the reasons for judgment there are no particulars as to how the trial judge was satisfied that Staff Sgt. Davies explained this delay.
[32] Paragraph 96 of the reasons for judgment indicates:
Counsel for Mr. Brunt argued that no explanation was provided to explain why it took 11 minutes for the Staff Sergeant to see Mr. Brunt. I disagree. I am satisfied that Staff Sergeant Davies more than satisfactorily explained this during his evidence.
[33] A review of the testimony given by Staff Sgt. Davies reveals that although the officer had no independent recollection of this particular investigation, he testified that given the timing of Mr. Brunt’s arrival at the police station he would have been engaged, as he would be on every shift, in conducting parade of the officers about to go on duty. In these circumstances, upon being advised of the arrival of a detainee, he would have given over the parade duties to another officer, and would have forthwith attended at the booking room to book in the arrestee. The video of the booking room shows Staff Sgt. Davies arriving at the booking room where Mr. brunt was waiting, at 6:20 p.m.
[34] The Crown submits that common sense would dictate that the steps described by Staff Sgt. Davies would reasonable take several minutes and that the trial judge correctly found that the evidence demonstrated no undue delay.
[35] I agree. I find it was open to the trial judge to reach that conclusion on the evidence.
[36] The trial judge at paragraphs 97- 99 of his reasons for judgment made the following further findings of fact:
[97] Staff Sergeant Davies asked Mr. Brunt a number of questions including whether he wished to speak to a lawyer. Mr. Brunt replied that he did not.
[98] Mr. Brunt was turned over to the breath technician at 6:24. He was brought back at 6:35. After speaking to the breath technician, Constable Dominelli placed a call to duty counsel at 6:36. Duty counsel called back at 6:49 and spoke to Mr. Brunt. The telephone conversation was done at 6:52 and Constable Dominelli returned Mr. Brunt to the breath room.
[99] As stated above, the first breath sample was received at 7:04.
[37] Counsel for Mr Brunt submits that at 6:20 p.m. Sgt. Davies received clear instructions from Mr. Brunt that he did not wish to speak to a lawyer therefore, there was a total of 40 minutes from 6:24 p.m. to 7:04 p.m. which was not properly explained or could only be justified on the basis that the police decided to call Duty Counsel on behalf of Mr. Brunt.
[38] Counsel for Mr. Brunt submits that there was no credible or probative evidence that could be used to infer that Mr. Brunt had requested to speak to Duty Counsel. The Defence had objected to hearsay evidence earlier in the Trial and the Crown had indicated it would call the breath tech to resolve any concern with respect to hearsay but the Crown ultimately decided not to call the breath tech. As a result, the Crown requested that the trial judge infer certain things that happened, and the trial judge improperly did infer that certain conversations occurred between Mr. Brunt and the breath technician at paragraph 104 of the reasons for judgment.
[39] Counsel for Mr. Brunt submits that in doing so submitted the trial judge disregarded the decisions of higher courts in this regard and most particularly the reasoning in the following cases: R. v. Davidson [2005] O.J. No. 3474 (S.C.J.); R. v. MacCoubrey [2015] O.J. No. 2820 (S.C.J.) Both of these cases stood for the proposition that when an accused clearly states that he does not wish to speak to counsel and the police on their own volition call counsel causing a delay, the Crown has not proved the tests were taken as soon as practicable.
[40] Counsel for Mr. Brunt also relies on R. v. Makacek [2015] O.J. No. 32 (S.C.J.) at paragraphs 10 through 16 wherein the Summary Conviction Appeal Court concludes that the Trial Judge improperly utilized hearsay evidence and reversed the onus when concluding that there was evidence of proof beyond a reasonable doubt that the tests were taken as soon as practicable. He submits that the trial judge in this case committed the same error in the case at bar.
[41] The trial judge’s conclusions on this issue are set out at paragraphs 100-105 of the reasons for judgment as follows:
[100] Counsel for Mr. Brunt argued that the police officers had unilaterally decided that Mr. Brunt should speak to duty counsel and that they made him do this, needlessly delaying the taking of the first breath sample.
[101] I disagree.
[102] Mr. Brunt did tell the staff sergeant that he did not want to speak to a lawyer.
[103] However, back at the scene of his arrest, he had told Constable Dominelli that he did wish to speak to a lawyer. So the statement to the staff sergeant showed a change of mind on Mr. Brunt's part.
[104] Then, after taking custody of Mr. Brunt, the breath technician spoke to Constable Dominelli leading Dominelli to believe that Mr. Brunt had changed his mind again and wanted to speak to duty counsel. It was in response to this belief that Constable Dominelli made the call. I note also that when told that they were calling duty counsel, Mr. Brunt did not say that he did not want to speak to duty counsel. I am satisfied that, based on all of this, I can infer that Mr. Brunt did indeed wish to speak to duty counsel and had asked to be allowed to do so. Any delay in conducting the breath tests was a result of this.
[105] I note further it is entirely appropriate that police officers would do everything they could to facilitate an accused person speaking to a lawyer.
[42] The Crown submits that hearsay is defined as an out of court statement admitted to prove the truth of its contents. The Crown submits that the breath technician’s utterance to Officer Dominelli was not relied on by the Crown or the trial judge for the truth of the statement, but to show why Officer Dominelli took the step of placing Mr. Brunt in touch with counsel.
[43] The Crown submits that in considering the "as soon as practicable" requirement, the central question is whether the conduct of police was reasonable. The issue was whether Officer Dominelli reasonably believed that Mr. Brunt had made a request to speak to counsel.
[44] The Crown submits that the law seeks to encourage police to honour the s.10(b) rights of detained persons. The Crown relies on R. v. Kusnir, (2002] O.J. No. 10 (S.C.J.) and R. v. Eshkawkogan, [2010] O.J. No. I 14 (S.C.J.) in support of their position that the court should not find fault with police for placing a detained person in touch with counsel, where police understood him to be requesting it, without any evidence to demonstrate that they were incorrect in their understanding.
[45] There is no obligation for an accused person to testify or to call evidence. I find that the trial judge’s reliance on Mr. Brunt’s failure to object to the police taking the step of calling duty counsel on his behalf as evidence that he wanted them to was unreasonable. A detainee might well fail to object to steps taken by police without that silence being taken as an affirmation of the actions taken by police.
[46] Further, while it may be appropriate that police officers do everything they can to facilitate an accused person speaking to a lawyer, the authorities are clear that if police do so in the face of an unequivocal waiver of an accused’s right to counsel, that action by police may be found to have caused undue delay in the assessment as to whether breath tests were taken as soon as practicable.
[47] Nonetheless, I am satisfied that the evidence given by Officer Dominelli as to why he took steps to facilitate Mr. Brunt speaking with duty counsel is not dependent on inadmissible hearsay, and also provides a proper foundation for the trial judge’s conclusion that those steps were reasonable in all of the circumstances and did not cause undue delay such that the Crown did not prove that the breath tests were taken as soon as practicable. The facts of this case are distinguishable from Makacek, where the reason for the delay was the unavailability of a breath technician.
[48] Finally, I am not persuaded that the trial judge’s finding that 22 minutes between the two breath tests did not hinder the Crown’s proving that both the breath tests were taken as soon as practicable was in error.
[49] I am satisfied there was proper evidentiary foundation for the trial judge’s finding that the Crown had proven, beyond a reasonable doubt, that the breath tests were taken as soon as practicable.
[50] The appeal is dismissed.
MILLER J.
Released: December 20, 2019
R. v. Brunt, 2019 ONSC 7435
COURT FILE NO.: 3/19
DATE: 20191220
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
HER MAJESTY THE QUEEN
– and –
GEOFFREY BRUNT
REASONS FOR JUDGMENT
MILLER J.
Released: December 20, 2019