Court File and Parties

COURT FILE NO.: CR-19-00000089-00AP DATE: 20200622 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – HENRY CARTER

COUNSEL: P. Alexander, for the Appellant, Crown I. Kasper, for Mr. Carter

HEARD: 26 May 2020

JUDGE: S.A.Q. Akhtar J.

Reasons for Judgment

[1] On appeal from the acquittal entered on 25 October 2019 by Justice A. Di Zio of the Ontario Court of Justice.

[2] On 23 October 2018, the respondent was seen travelling southbound on Highway 427, weaving from lane to lane with a blinking right signal. He was stopped on the exit ramp to Eva Road. Police observed the respondent to have watery eyes and to be acting as if he was “lost”. They also detected an odour of alcohol coming from his breath. When asked for his driving licence, the respondent was unable to find it.

[3] The respondent was asked to exit his vehicle and, when he did so, he was seen to be walking slowly. Based on these observations, the officer formed reasonable and probable grounds that the respondent had been driving whilst impaired by alcohol and arrested him.

[4] When taken to the station, the respondent produced breath readings of 120 mg of alcohol and 110 mg of alcohol per 100 ml blood. He was charged with impaired driving of a motor vehicle and driving with a blood alcohol concentration in excess of 80 mg in 100 ml of blood (“Over 80”).

[5] At trial, the only issue was whether the breath readings had been obtained in violation of the respondent’s s. 8 Charter rights. The respondent’s position was that the officer did not have the requisite reasonable and probable grounds to arrest him for impaired driving.

[6] The trial judge found there to be a Charter breach, excluded the evidence and acquitted the respondent.

Grounds of Appeal

[7] The appellant Crown appeals on three grounds:

1. The trial judge erred in finding a s. 8 breach;
2. The trial judge failed to give adequate reasons for finding a breach; and
3. The trial judge failed to give adequate reasons for excluding the evidence pursuant to s. 24(2) of the Charter.

The Trial Judge’s Reasons

[8] The entirety of the trial judge’s reasons on the issues of breach and exclusion of evidence are set out in the following paragraphs:

Well, what do you think? You know, I sort of have sympathy for Mr. Carter because I see him on the video. He seems to be a very, very nice man and cooperative with the officers and I do not see him swaying or any of that sort and, you know, I do not see him slurring. I mean you said there was some slurring but there is an accent issue there, too.

And obviously, as I said, the officer, I think he had a good nose for it. I think he picked -- he picked what the problem -- but that is a subjective analysis. Objectively, I can see what you are saying. I can see what you are saying that maybe if I just -- and there is no requirement that he use his screening device. He does not have to. It is not the -- he makes a decision and what it is. But I guess if he had used it, there would be a completely different story now. But yes, I am thinking -- yes, I mean, it could be interpreted what he saw was potentially a dangerous move on the highway going from lane to lane like that, but it could be interpreted that he just was not sure where he was going and then the rest seemed to be perfectly okay, the rest of the movement.

Yes, maybe objectively -- I don’t know -- you know, maybe objectively, I -- you know, I know the standard is really low but, well, maybe I should give this one to Mr. Carter. Mm? You know, maybe it’s a Christmas gift to Mr. Carter.

Maybe I should give it to him. You know, yes, I mean if there was any hint of any improper driving, you know, I am not a hundred percent sure that the movement from side to side was not proper but there was no traffic at that point other than the officer. I mean moderate traffic overall, but particular instant, I did not hear any evidence about the traffic.

So, yes, I am just blending everything together. Reasonable doubt and whether or not he had the reasonable grounds to arrest him and I think, you know, maybe -- I think it’s sort of borderline.

I am sitting on the fence but I think, as I say, I am going to give it to Mr. Carter and so he should not have arrested him and I am just going to dismiss both charges. Okay?

Let’s not get into the 24(2). It’s the end of the day.

And Merry Christmas, Mr. Carter.

[9] Accordingly, the trial judge entered a verdict of not guilty on both counts.

Analysis

[10] In my view this appeal is decided on the adequacy of reasons given by the trial judge on both the issue of breach and exclusion.

[11] In making this decision, I do not wish to be seen as approving the ruling that there actually was a violation. The s. 8 violation argued by the respondent at trial was whether the police had reasonable and probable grounds to arrest the respondent for impaired driving. In this case, the arresting officer did not seek to have the respondent provide a sample into an approved screening device but proceeded on the basis of his observations.

[12] The law is clear that an arresting officer need not observe a driver in a state of extreme intoxication to form reasonable and probable grounds to arrest: R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641, at para. 47.

[13] In Bush, at para. 38, the court described reasonable and probable grounds in the following way:

Reasonable and probable grounds have both a subjective and an objective component. The subjective component requires the officer to have an honest belief the suspect committed the offence: R. v. Bernshaw, [1995] 1 S.C.R. 254, at para. 51, 95 C.C.C. (3d) 193. The officer’s belief must be supported by objective facts: R. v. Berlinski, [2001] O.J. No. 377, 48 W.C.B. (2d) 506 (C.A.), at para. 3. The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest: R. v. Storrey, [1990] 1 S.C.R. 241 at p. 250, 53 C.C.C. (3d) 316.

[14] The Crown may prove impaired driving based on evidence of a driver’s slight impairment: R. v. Stellato (1993), 12 O.R. (3d) 90 (C.A.), aff’d , [1994] 2 S.C.R. 478.

[15] Accordingly, the question for the court is whether there were reasonable and probable grounds to believe that the driver’s ability to drive was “even slightly impaired by the consumption of alcohol”: Bush, at para. 48; R. v. Wang, 2010 ONCA 435, 256 C.C.C. (3d) 225, at para. 17.

[16] I agree with the appellant that the factors outlined by the officer would appear to satisfy this test. The difficulty in this case is that the reasons set out by the trial judge are unclear as to why he came to the opposite conclusion.

[17] His references to the respondent being “a very, very nice man” were irrelevant to the officer’s subjective and objective belief. It was equally irrelevant that the respondent was not seen to sway or slur his speech.

[18] The judge appeared to acknowledge the officer possessed subjective belief. However, his analysis on whether there were objective grounds was less clear. The judge opined that the officer’s description of the respondent’s driving “could be interpreted what he saw was potentially a dangerous move on the highway going from lane to lane like that, but it could be interpreted that he just was not sure where he was going and then the rest seemed to be perfectly okay, the rest of the movement.”

[19] A trial judge’s duty to give reasons that permit the losing party to know why it lost and permit appellate review are well established: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3; R. v. Newton, 29 M.V.R. (5th) 11 (Ont. C.A.).

[20] In this case, it is unclear what factors the trial judge relied upon to determine a lack of reasonable and probable grounds. As noted, the judge found the subjective component to be satisfied but failed to explain the deficit with respect to the objective component of the test.

[21] I agree with the appellant that the judge appeared to jump from an analysis of whether the objective component of reasonable and probable grounds existed to an assessment of whether the movement of the car demonstrated impairment. In either case, the reasons do not indicate why the judge concluded there was a s. 8 breach. His comments that “maybe objectively” followed by “maybe I should give this one to Mr. Carter” as a “Christmas gift” are devoid of the substance required by Sheppard and R.E.M.

[22] Moreover, the conflation of the Charter with the terminology of “reasonable doubt” appeared to amount to a verdict on impaired driving without any consideration of the Over 80 offence.

[23] Finally, the judge did not even turn his mind to whether the s. 24(2) Charter principles described in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, should be applied to exclude the evidence as he was required to do. This, on its own, constitutes legal error.

[24] For these reasons, the appeal is allowed.

[25] The remaining question is that of remedy. The appellant submits that the proper course of action is to enter a conviction on both charges as the legal errors committed by the judge determine the verdict. The sole issue in this case was whether the respondent’s s. 8 rights had been violated. If the judge was wrong on this point and there was no violation, the appellant submits that the readings should be admitted and a conviction entered for the Over 80 offence. The appellant adds that should this court decide to pursue this course of action, it would agree that the impaired driving charge be stayed.

[26] On the other hand, the respondent submits that if the appeal is successful, a new trial should be ordered.

[27] I recognise that this court does have the power to set aside the acquittals and enter a conviction on the Over 80 charge: R. v. Li, 2015 ONSC 7017. However, I decline to do so.

[28] In my view, the lack of clarity in the judge’s reasons makes it impossible to understand what facts were found to exist. It would be unfair – even though I might conclude from the evidence that there was no breach of the respondent’s s. 8 rights – to enter a conviction in these circumstances.

[29] For these reasons, a new trial is ordered before a different jurist.

[30] The respondent must appear on 23 September 2020 at the Toronto West Courthouse, 2201 Finch Avenue West at 1:30 p.m. to set a new date for trial.

S.A.Q. Akhtar J. Released: 22 June 2020