COURT FILE NO.: 18-0001
DATE: 2020/02/21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
– and –
RYAN JACKS
Respondent
Stephen Lichti, for the Crown
Mathew Wolfson, for the Respondent
HEARD: February 5, 2020
AMENDED REASONS FOR DECISION
the release date of the original Reasons for Decision of February 19, 2019 was corrected on February 21, 2020 and the explanation of the correction is appended.
PARFETT J.
[1] This matter is an appeal by the Crown from the acquittal of the Respondent, Ryan Jacks on a charge of driving a motor vehicle having consumed alcohol in such a quantity that the concentration of alcohol in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood contrary to s. 253(10(b) of the Criminal Code. The Respondent brought a cross-appeal, alleging the trial judge erred in finding there was no breach of his section 10(b) Charter rights.
Background
[2] On December 6, 2017 police stopped the Respondent’s car as part of a RIDE program. The driver identified himself with a valid driver’s licence as Ryan Jacks with a date of birth of October 8, 1985. He admitted to having consumed alcohol and the officer noticed a smell of alcohol on Mr. Jacks’ breath. Mr. Jacks was read the roadside approved screening device (ASD) demand and registered a fail. He was arrested and taken to the police station. He provided two breath samples into a breathalyser and the results were 100mg%.
[3] At trial, counsel for Mr. Jacks raised two Charter issues: a breach of sections 8 & 9 based on various grounds, including a lack of subjective suspicion to make the ASD demand and a breach of s. 10(b) based on counsel of choice.
[4] During the final submissions by counsel, the trial judge raised the issue of whether identification had been proven by the Crown. The trial judge reserved on her decision and later ruled that identity had not been proven beyond a reasonable doubt. She also found the Crown had failed to prove the arresting officer had the subjective belief necessary to arrest the Respondent for the offence of over 80 given that he had failed to correctly articulate what a ‘fail’ on the ASD meant. Consequently, the trial judge found the Respondent’s section 8 & 9 Charter rights had been breached and she excluded the breathalyser results. The Respondent was therefore acquitted.
Issues
Did the trial judge err in finding that the Crown had not proven identity beyond a reasonable doubt;
Did the trial judge err in finding the arresting officer did not have reasonable and probable grounds to make an arrest; and
Did the trial judge err in finding there was no breach of s. 10(b) of the Charter?
Legal Principles
[5] The burden of the Crown appealing an acquittal has been described as follows:
On a Crown appeal from acquittal the appellant must satisfy this court that the verdict would not necessarily have been the same if the jury had been properly instructed or the excluded evidence admitted. In R. v. Morin, Sopinka, J described the onus on the Crown as ‘a heavy one’. He continued that the accused should not be deprived of an acquittal and sent back for another trial unless the error ‘was such that there is a reasonable degree of certainty that the outcome may well have been affected by it.’[^1]
[6] In addition, the Crown cannot point to a lack of evidence to overturn an acquittal. As noted in The Conduct of an Appeal,
Analytically, therefore, the question whether there is an absence of evidence to support an acquittal is entirely separate from the question of an absence of evidence to support a conviction. A conviction based upon no evidence involves a fabrication of an element or elements of the offence; an acquittal upon no evidence is simply an application of the presumption of innocence. In other words, an acquittal is the default finding in a criminal trial where the Crown fails to discharge its burden of proof, positive evidence supporting an acquittal is never required.[^2]
[7] The standard of review depends on the nature of the issue. Where the issue is a question of law, the standard is correctness.[^3] There are two reasons for this standard. First, the need for universality. The same legal rules must be applied in similar situations. The second reason is the ‘recognized law-making role of appellate courts’.[^4] Where the issue is a finding of fact, then the standard ‘is that such findings are not to be reversed unless it can be established that the trial judge made a “palpable and overriding error”.’[^5] Deference is owed to trial judges. This principle is based on the ‘assumption that the trier of fact is in a privileged position to assess the credibility of witnesses’ testimony at trial.’[^6]
[8] The exclusion of evidence under s. 24(2) of the Charter is an error of law if the trial judge excludes the evidence based on an error in principle, a misapprehension of material evidence or an unreasonable assessment of the evidence.[^7]
Analysis
1. Identity
[9] A finding that the Crown has failed to prove the identity of the accused beyond a reasonable doubt is a finding of fact and therefore, the test to be applied is whether the trial judge made a palpable and overriding error based on the evidence.
[10] The trial judge’s decision on the issue of identity was as follows:
One case establishes that the name and birthdate on the information being similar is ‘some evidence’ of identification sufficient for the purposes of a preliminary inquiry. It is not unusual for persons to misidentify themselves, using another person’s name, birthdate and/or driver’s licence, and therefore without the photograph to compare the identification provided with the person before the Court, or the officer identifying the person before the Court as the person he dealt with/arrested on the night in question, there is reasonable doubt that Mr. Jacks before me is the same person.[^8]
[11] The officer testified as follows on the issue of identity:
Q. But did you ever determine who the driver of this vehicle was?
A. Yes.
Q. Who was the driver?
A. Ryan Jacks.
Q. Did you have a date of birth for that gentleman?
A. Yeah, 1985, October 8th.
Q. How did you determine that identity?
A. Valid driver’s licence from Ontario.
Q. Okay, and this was a photo ID?
A. Photo ID, yes.
Q. Did you compare the photo to the person you were dealing with?
A. Yes.
[12] The trial proceeded as a blended Charter application and trial. It was agreed by the parties that the evidence heard on the application would apply to the trial.[^9] The parties filed an agreed statement of facts in relation to the s. 10(b) issue.[^10] The parties also filed an affidavit sworn by a witness, Catherine Walsh.[^11] The statement indicated that all the information contained in the affidavit was true. The affiant is a lawyer and stated she knew the Respondent as he was a work colleague. It also indicated that Ms. Walsh had been available to receive a telephone call from the Respondent the night he was arrested but did not.
[13] A further admission was filed by counsel in which it indicated that the Respondent’s interactions with the breathalyzer technician had been video and audio-recorded and confirmed that the Respondent spoke to duty counsel.[^12]
[14] Moreover, during submissions by counsel, the following exchange occurred:
Crown: I’m not making submissions on the trial proper, but the offence itself has been made out, subject to exclusion…
Defence: I’ll stipulate that. If the evidence is not excluded, then that would amount to a conviction.[^13]
[15] In her assessment of the issue of identity, the trial judge did not consider the evidence of the agreed statements of fact or the affidavit. All these exhibits provided strong circumstantial evidence of identity. Furthermore, the exchange between counsel during submissions indicated that in their view, identity was not an issue.
[16] A trier of fact is at liberty to accept all, none or some of the evidence led at trial. However, a trier of fact is not permitted to reject or ignore evidence that counsel have agreed should go in for the truth of the contents. To do so is a palpable and overriding error.
[17] Furthermore, in the present case, there is a reasonable degree of certainty that the outcome of the trial may well have been affected by this error. Had the trial judge considered the impact of the evidence set out above, there is a reasonable probability that she would have come to a different conclusion on the issue of identity. In addition, the trial judge stated in her reasons that her finding in relation to identity was determinative of the case even though she chose to deal with the Charter applications as well.[^14]
2. Charter Application in relation to s. 8 & 9
[18] The trial judge found that the Respondent’s s. 8 & 9 rights had been breached. She stated,
I would grant the s. 8 and 9 Charter breaches as Cst. Lacroix not only had difficulty expressing what a fail on the ASD meant and was unable to say what “over 80” meant other than it was over the legal limit.[^15]
[19] In her determination whether the breach justified exclusion of the evidence pursuant to s. 24(2) of the Charter, the trial judge indicated,
I find that the section 8 and 9 breaches are serious in that Cst. Lacroix could not state what offence the individual was arrested for and therefore did not have an understanding other than ‘over the legal limit’ not knowing what the legal limit was. The impact was serious as the individual was arrested, detained, taken to the station for further testing for an unknown offence. These two elements favour exclusion of the evidence.[^16]
[20] The officer’s evidence on the issue of what a ‘fail’ on the ASD meant was as follows:
Q. So what was the result of the sample?
A. It registered a fail.
Q. What does a fail mean to you on that device?
A. There’s more than 100 milligrams of alcohol in his blood.
Q. What is the legal limit, do you know?
A. Eighty milligrams.
Q. Eighty milligrams in how much blood?
A. in 100 milligrams of blood.
Q. What was – what was your belief in that fail having been registered? What was your belief?
A. That’s when I formed the opinion that he was operating a motor vehicle with over 100 – or 80 milligrams of alcohol in his blood.[^17]
[21] Later in the transcript, the officer testified that had the ASD registered any result other than a fail, he would have let the driver go on his way because the driver would have been ‘below the legal limit’.[^18]
[22] As noted earlier, the trier of fact is owed substantial deference where the issue is a finding of fact. The evidence of the officer’s honest belief that the Respondent had committed a criminal offence is a finding of fact. The trial judge’s main concern in relation to this evidence was that the officer had misstated the formula for blood alcohol concentration, indicating the concentration was in milligrams of blood and not millilitres of blood.[^19] From that evidence, the trial judge concluded that the officer did not have an honest belief that the Respondent had committed an offence.
[23] In the present case, although this court would have come to a different conclusion on this evidence, I would not interfere with this finding.
[24] However, the trial judge’s analysis pursuant to s. 24(2) is a different story. This breach such as it was, was very technical in nature. There was no bad faith on the part of the officer; he merely misspoke. Therefore, the situation favoured admission pursuant to the first branch of the test in R. v. Grant.[^20] Moreover, the trial judge’s analysis of the second branch of the Grant test ran afoul of the decision in R. v. Jennings.[^21] In that case, the Ontario Court of Appeal stated as follows:
Similarly, in R. v. Guenter, Brown, J.A. notes that ‘the collection of the breath samples amounted to no more than a minimal intrusion upon the appellant’s privacy, bodily integrity and human dignity.’
To find otherwise would be to create a categorical rule that s.8 breaches in breath sample cases automatically favour the exclusion of evidence under the second Grant factor, since drivers in these cases are almost invariably arrested and taken to the police station to provide further breath samples. This would be contrary to the approach taken by the Supreme Court in Grant and to a sound characterization of what is at stake for the individual in providing a breath sample. Accordingly, it was an error for the trial judge, and the SCAJ, to have followed Au-Yeung in this respect and not to have found the impact of the breach to have been minimal, favouring admission.[^22]
[25] Consequently, in my view, the trial judge committed an error in law in her analysis of the Grant test in relation to the evidence in this case.
3. Charter application in relation to Section 10(b)
[26] The Respondent worked for a window company in Ottawa. This company had an in-house counsel – Ms. Walsh. The Respondent requested that she be contacted prior to taking the breathalyser tests. He did not have her cellphone number. Cst. Lacroix ‘googled’ Ms. Walsh and was able to ascertain that she was employed by the window company. However, the website for the company did not contain any after hours contact information. Ms. Walsh was listed in the Law Society for Ontario ‘lawyer and paralegal’ directory and her cellphone information could have been located there.[^23] However, Cst. Lacroix did not know that this directory existed and did not try to locate it on the internet. Ultimately, the Respondent contacted duty counsel. He did not express any dissatisfaction with the advice he received.[^24]
[27] The trial judge concluded there was no breach of s. 10(b) on the facts in this case. She found,
I would not find a breach of the individual’s section 10(b) rights as Cst. Lacroix made efforts to find the contact information for Ms. Walsh and as the individual did not have any further information as to how to contact Ms. Walsh and chose to, and did, speak to duty counsel prior to any breath tests, his section 10(b) implementation rights were respected and exercised. There is no obligation for police to be aware of several search engines, i.e. the Law Society directory. Cst. Lacroix was not aware that such a directory or even the Law Society of Ontario existed and conducted a reasonable search trying to find Ms. Walsh’s contact information.[^25]
[28] Counsel for the Respondent argued that the trial judge erred in finding that Cst. Lacroix’s efforts to locate Ms. Walsh were reasonable in the circumstances. He pointed to the case of R. v. Maciel,[^26] where the judge found that various actions were required of the police in assisting a detainee to locate the counsel of their choice. Specifically, he suggested the police should:
• Ask the detainee for any contact information s/he may have and permit access to the detainee’s cellphone if the information is stored in it;
• Access the Law Society of Ontario’s website and use their directory;
• Conduct a Google search of the lawyer’s name and search their website for contact information; and
• Use any paper-based directories, such as white or yellow pages.[^27]
[29] The issue is whether in the circumstances of this case, the police exercised reasonable diligence in attempting to contact the Respondent’s counsel of choice.[^28] In the present case, the Respondent did not have any contact information for Ms. Walsh. Her name was not on the list of lawyers at the police station and a Google search of her name only turned up the company’s website as she was an in-house counsel and did not possess her own website. The trial judge found as a fact that there was no obligation on the police to be aware of the Law Society of Ontario’s lawyer directory. This was a reasonable finding for the trial judge to make. Whether the police should make themselves aware of the Law Society’s directory is for another court to decide.
[30] Therefore, the trial judge’s determination that there was no breach of s. 10(b) of the Charter is upheld.
Conclusion
[31] In the circumstances, the Crown’s appeal is allowed, and a new trial is ordered.
Parfett J.
Released: 2020/02/21
Appendix
In the original Reasons for Decision, the release dates on page 1 and 9 should have read: 2020/02/19.
COURT FILE NO.: 18-0001
DATE: 2020/02/21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Appellant
– and –
RYAN JACKS
Respondent
AMENDED REASONS FOR JUDGMENT
Parfett J.
Released: 2020/02/21
[^1]: R. v. Horan, 2008 ONCA 589, [2008] O.J. No. 3167 (CA) at para. 71 (other citations omitted). [^2]: Sopinka & Gelowitz, The Conduct of an Appeal, at p. 138. [^3]: Housen v. Nikolaisen, 2002 SCC 33. [^4]: At para. 9. [^5]: At para. 10, citing Stein v. The Ship “Kathy K”, 1975 CanLII 146 (SCC), [1976] 2 S.C.R. 802 at p. 808. [^6]: Schwartz v. R., 1996 CanLII 217 (SCC), [1996] 1 S.C.R. 254 at para. 32. [^7]: R. v. Manchulenko 2013 ONCA 543 at para. 43. [^8]: Reasons for decision, Appeal Book tab 10 at para. 6. [^9]: Trial transcript, Appeal Book, tab 11, p. 6, lines 15-20. [^10]: Appeal Book, tab 5, Exhibit #1 at trial. [^11]: Appeal Book, tab 6, Exhibit #2 at trial. [^12]: Appeal Book, tab 8, Exhibit #4 at trial. [^13]: Trial transcript, Appeal Book, tab 11, p. 69, lines 20-27. [^14]: Reasons for decision, Appeal Book tab 10 at paras. 7-8. [^15]: Reasons for decision, Appeal Book tab 10 at para. 8. [^16]: Reasons for decision, Appeal Book tab 10 at para. 10. [^17]: Trial transcript, Appeal Book, tab 11, p. 15, lines 8-21. [^18]: Trial transcript, Appeal Book, tab 11, p. 34, lines 12-31. [^19]: Trial transcript, Appeal Book, tab 11, p. 40, lines 1-7. [^20]: 2009 SCC 32. [^21]: 2018 ONCA 260. [^22]: At paras. 31-32, omitting citations. [^23]: Appeal Book, tab 6, Exhibit #2 at trial, paras. 19-21 of affidavit. [^24]: Appeal Book, tab 8, Exhibit #4 at trial. [^25]: Reasons for decision, Appeal Book tab 10 at para. 9. [^26]: 2016 ONCJ 563, [2016] O.J. No. 4789 (OCJ). [^27]: At para. 47. [^28]: See R. v. Wilding, 2007 ONCA 853.