COURT FILE NO.: 18-0069-AP
DATE: 20210317
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
– and –
SATHEESH PARA
Respondent
Stephen Albers, for the Crown
Matthew Wolfson, for the Respondent
HEARD: February 26, 2021
On appeal from Justice Vincent Clifford of the Ontario Court of Justice decision dated September 5, 2019
REASONS FOR decision
Beaudoin J.
[1] The Attorney General of Ontario on behalf of Her Majesty the Queen, (the Crown) appeals the acquittals of the charges of operating a vehicle with a blood alcohol concentration exceeding 80 milligrams of alcohol in 100 milliliters of blood (former section 253(1)(b)) and impaired operation of a motor vehicle (former section 253(1)(a)) by the Honorable Justice Vincent Clifford of the Ontario Court of Justice on July 10, 2019. This appeal is sought pursuant to section 813(b)(i) of the Criminal Code of Canada (“the Code”).
[2] Specifically, the Crown submits that the trial judge erred in his interpretation of the law governing the scope of section 8 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11 [“the Charter”] and erred in the application of section 8 of the Charter rights to the facts of this case.
[3] Further, the Crown submits that the trial judge erred in his interpretation of the law governing section 24(2) of the Charter and erred in the application of section 24(2) to the facts of this case.
[4] The Crown concedes that the recent amendments to the Criminal Code limit the scope of this appeal.
Overview
The Respondent, Satheesh Para was charged that he did, on or about the 30th day of June 2018, operate a motor vehicle while his ability to do so was impaired by alcohol contrary to then section 253(1)(b) of the Code and while his blood alcohol level was in excess of 80 milligrams of alcohol in 100 milliliters of blood, contrary to then section 253 (1)(b)of the Code.
The Respondent pleaded not guilty and a trial date was set.
Prior to the commencement of the trial, the defence filed a notice of its intention to seek the exclusion of certain evidence, in particular, the breath samples obtained by the police, as well as police observations of the Respondent. pursuant to section 24(2) of the Charter, on the basis of an alleged violation of section 8 of the Charter.
The trial preceded by way of a blended voir dire and trial on June 24 and 25, 2019.
On September 5, 2019, the trial judge delivered his decision on the Charter motion, finding that there had been a breach of the Respondent’s section 8 Charter rights and excluded certain evidence.
As a result of that ruling, there remained no evidence on the section 253(1)(b) count and that count was dismissed.
Further, the trial judge dismissed the remaining charge before the court, section 253(1)(a), on the basis that the remaining evidence was not capable of establishing guilt.
Summary of the Facts
On June 30, 2018, at approximately 04:54 hours, the Ontario Provincial Police Communication Center received a traffic complaint in relation to a vehicle traveling eastbound on Hwy 417 in the City of Ottawa. The complaint detailed that the vehicle was proceeding down the highway at an extremely low rate of speed, on a flat tire, and had exited and reentered the highway.
The traffic complaint originated from a tow truck driver, Edward Lister. Mr Lister noticed the vehicle driving at a low rate of speed and thought something was wrong with it. As he pulled alongside at the vehicle, he noticed the front tire to be flat and the rear windows to be rolled down.
As Lister pulled alongside the vehicle, he rolled down his window and indicated to the driver that he had a flat tire and that he should pull over. The driver looked back at Lister and continued driving.
Lister then allowed the vehicle to pass him, and he pulled in behind it, anticipating that it would pull over.
The vehicle did not pull over, but instead proceeded on to Hwy 417, at which point Lister called the police and decided to follow the vehicle at a safe distance.
Lister then observed the vehicle exit the highway at Kanata Avenue and continue driving, proceeding through a stop sign. Lister kept a safe distance from the vehicle while updating the dispatcher on its whereabouts, the condition of the driving, and traffic conditions.
Lister testified that he kept his safe distance behind the vehicle as he did not want to startle the driver, but he followed the vehicle and continued to update the dispatcher.
Constable Shane Marko of the Ontario Provincial Police was dispatched to the traffic complaint at 04.54 hours.
Constable Marko arrived at the intersection of Terry Fox Drive and Katimavik road and identified the vehicle based on the description immediately: it was wobbling from side to side, driving on a flat tire and extremely low rate of speed and was followed by a tow truck.
At 05:07 hours, constable Marko performed a traffic stop. The vehicle signaled and came to a stop with its left corner sticking into the lane by approximately 2 to three feet.
Constable Marko identified the lone occupant the driver and began to speak with him upon pulling him over. He immediately noticed what he testified as “the obvious odor of alcoholic beverage on his breath”.
Constable Marko asked the driver if he had consumed any alcoholic beverages and the Respondent answered that he had consumed “two beers”.
Comfortable Marko subsequently made a demand section 254(2) of the Code at 05:11 hours for a sample of the Respondent’s breath.
During this time, constable Marko observed the Respondent to be, as he testified, “sliding the pages of icons [on his smartphone] back and forth […] incoherently.
Constable Marko then went to his cruiser to get an approved screening device and returned to the Respondent, who was still seated on his own vehicle. Constable Marko then administered the approved screening device at 05:14 hours. The result of that sample was a “fail”. Constable. Marko then placed the Respondent under arrest for “impaired driving”.
Constable Marko testified that had Mr. Para passed the screening test, he would have been free (albeit not in his vehicle) and he would no longer be detained.
Constable Marko agreed in cross-examination that when he arrested Mr Para that he believed Mr Para’s blood alcohol content (“BAC”) was over the legal limit. He also agreed that leading up to the arrest, he used the ASD as he had doubts as to Mr. Para’s impairment.
The Respondent was then searched and placed into the back of the police cruiser. Constable Gregory Bell, the qualified breath technician, was advised that his services as a breath technician would be required,
Constable Bell arrived at the detachment at 06:09 hours, he tested the breathalyzer machine and readied the instrument for use.
Constable Marko arrived at the detachment with the Respondent at 05:31 hours.
The Respondent was processed and placed briefly in holding cell while Constable Marko left a message with the duty counsel answering service. The Respondent was thereafter provided an opportunity to contact legal counsel at 06:00 hours, a process which was completed at 06:07 hours.
Constable Marko then met with Constable Bell at 06:12 hours to advise him of the circumstances of the arrest and grounds therefor. The grounds included a traffic complaint by third party; poor driving; a “fail” result on an ASD, an odor of alcoholic beverage and an admission of to having consumed “two beers”.
Upon entry into the breath testing room, Constable Bell made a second breath demand an advised the Respondent of various cautions and rights that he had at that point in time.
At 06:29 hours, Constable Bell obtained a deep lung air sample directly into the approved instrument resulting in reading of 242 milligrams of alcohol in 100 milliliters of blood. At 06.51 hours is constable Bell obtained a second sample of the Respondent’s breath and a reading of 244 milligrams of alcohol in 100 milliliters of blood.
Respondent’s Position on the Facts
[5] The Respondent emphasizes that Constable Marko testified that he had arrested the Respondent for impaired driving. He had even written this in his notes and that he had never written that the arrest was for “over 80 “. When it was put to him that he arrested Mr. Para for section 253(1)(a) of Code, Constable Marko disagreed, and he maintained that he only advised Mr. Para of this to help him understand his jeopardy. The trial judge did not accept that explanation.
The Law
[6] At the relevant time section 254(3) of the Code read as follows:
254(3) If a peace officer believes on reasonable and probable grounds that a person has committed, as a result of the consumption of alcohol, an offence under section 253, the peace officer, may by demand made to that person forthwith or so as is practicable, require that person to provide then or so soon as is practicable:
(a) Such samples of the person’s breath as in the opinion of a qualified technician,
are necessary to enable proper analysis to be made in order to determine the concentration, if any, of alcohol in the person’s blood, and to accompany the peace officer for the purpose of enabling such samples to be taken.
[7] Section 8 of the Charter provides:
Everyone has the right to be secure against unreasonable search or seizure.
[8] Section 24(2) of the Charter states:
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
[9] The attainment of breath samples by the police is a warrantless seizure within the meaning of section 8 of the Charter. Warrantless seizures are prima facie unreasonable and therefore violates section 8 of the Charter.[^1]
[10] In R. v. Collins, [1987] 1 S.C.R. 265, the Supreme Court found that a warrantless seizure may not violate section 8 of the Charter if the Crown can establish:
(i) the seizure is authorized by law;
(ii) the law itself is reasonable; and
(iii)the manner in which the seizure was carried out was also reasonable.
[11] The issue on this appeal is the applicability of the Collins framework to the former section 254(3) of the Code.
The Trial Judges’ Decision
[12] The relevant findings of the trial judge are repeated below[^2]:
25 The Ontario Court of appeal in R. v. Bush 2010 ONCA 554, [2010] O.J. No. 3453 held, at para. 38, that in operation, the reasonable and probable grounds standard has “both a subjective and objective component. The subjective component requires the officer to have an honest belief the suspect committed the offence. The officer’s belief must be supported by objective facts. 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 [that the demand entails]”; see also R. v. Ross, 2015 ONCJ 115, 2015 O.J. No. 1043 (O.C.J.)
26 I agree with Justice Paccioco’s (as he then was) analysis in R. v. Ross, supra at para. 25 wherein he held that sections 253(1)(a) and section 253(1)(b) are different offences with different components. Thus, if “an officer relies upon one of those offences, that is the offence that requires evaluation. Section 254(3) does not say otherwise. What that provision does is empower officers to make an evidential breath demand if they formed a reasonable and probable grounds that one of the two distinct alcohol motor vehicle offences in section 253 has occurred.
27 Like justice Paccioco, I disagree with decisions that intimate that so long as the subject knows that the arrest or demand relates to an alcohol drinking offence that is sufficient: …
30 Unlike the facts in Ross, in this case the evidence suggests that Officer Marko did not hold a subjective belief that Mr. Para’s ability to operate a motor vehicle was impaired. This becomes problematic for the officer as he arrested Mr Para for the offence of impaired driving, and I find that he issued the breath demand on that basis. This became clear in officer Marko’s examination-in-chief when he was asked by the Crown Counsel what charge the accused was arrested for. Officer Marco replied that the arrest was for the offence of “impaired driving.”
31 Unlike in Ross or Bernshaw[^3], officer Marko did not testify that the failure of the ASD combined with other evidence caused him to believe that Mr. Para’s ability to operate a vehicle was impaired by alcohol. There was no mention in his testimony that the fail result which indicated that the subject was “Over 80” together with other evidence cemented a belief that Mr. Para’s ability to operate a vehicle was impaired. Rather, his explanation for using the term “impaired driving” was that the language stemmed from a desire to make the experience more “easily understandable for the accused”.
32 I find that officer Marko’s testimony about making things more easily understandable for the accused says little to nothing about a subjective belief that Mr. Para was impaired….
33 I do not accept officer Marko’s evidence that the arrest was in reality on the over 80 charge, and he merely use the alternative language of impaired driving in an attempt to make things more understandable to the accused. Officer Marko made no mention in his notes that the arrest was for the 253(1)(b) CCC charge. While frontline officers cannot be expected to record every aspect of a roadside encounter with a suspected drunk driver, I would expect that such a significant detail pertaining to the reason for detainee’s arrest and the breath demand would be recorded in some manner.
34 Following the failure of the ASD coupled with other evidence, it was, in my view, open to Officer Marko to form a subjective and objective belief as to the commission of an offence under section 253(1)(a) (impaired driving). His evidence reveals however that he did not form such a subjective belief. In addition, I find that his testimony suggesting that the arrest/demand was in reality based on an “Over 80” charge was in an attempt to ameliorate his Charter infringing conduct.
[13] The trial judge concluded that a demand for breath sample made in the absence of the requisite subjective grounds constituted a serious Charter infringement. He then turned to the section 24(2) analysis as outlined by the Supreme Court in R. v. Grant, 2009 SCC 32, 2 S.C.R. 353 and concluded:
The violation in this particular case, a compelled search /seizure based on an articulated offence in the absence of subjective grounds, was very serious. “When I consider the seriousness of the violation, I am also troubled by the officer’s testimony that by alternative language he, in effect, made the arrest in demand on the 253(1)(b) offence when he clearly did not. I’m entitled to consider this testimony in my 24(2) analysis. While not part of the Charter breach itself, this testimony is properly a factor to consider as part of the first inquiry under the 24(2)-analysis given the need for the court to disassociate itself from such behavior.” [^4]
“The applicant’s breath was seized in the absence of subjective grounds to believe that the offence which underpinned the demand had even been committed.”[^5]
“Evidence from the breath test procedure is generally regarded as reliable and is clearly essential to an “Over 80” charge. Similarly, the observations of the police as they relate to indicia of impairment are also important to the prosecution’s case. These factors favor the admission of the evidence.” [^6]
“The serious nature of the Charter breach in this case coupled with the impact on Mr. Para’s Charter protected interests favor the exclusion of the breath readings and the post arrest observations of Mr. Para notwithstanding society’s interest in an adjudication on the merits. I conclude that exclusion of the evidence is required to maintain the long-term repute of the administration of justice.”[^7]
[14] In the absence of the breath readings, there was a finding of not guilty on the section 253(1)(b) charge. The trial judge went on to carefully review the totality of the evidence on the impaired driving charge and was not satisfied that the Crown had established the elements of the section 253(1)(a) offence beyond a reasonable doubt and acquitted Mr. Para of that charge. I note his finding at para. 62 vii:
The officer stated that in the absence of the ASD screening result of fail that Mr. Para would have been free to leave the scene.
Crown’s Position
[15] The Crown submits that section 254(3), as it then was, authorizes police to make a breath demand where they hold an objectively reasonable belief that “an offence under section 253” has occurred. The section is not particularized to include that the officer must articulate which offence occurred, nor even hold a subjective belief that one or the other offence has occurred.
[16] The Crown further submits that the trial judge erred in finding that the officer was required to hold and articulate his subjective belief as to which of offence under section 253 was committed. That the trial judge’s error was in finding a breach of section 8 of the Charter where the officer held the belief as to one offence under section 253 but articulated his breath demand and subsequent arrest in general terms and under the other section.
[17] The Crown submits that no violation of Mr. Para’s section 8 Charter rights occurred, but if there was such a breach, the Crown further submits that the trial judge erred in his interpretation and application of the test for exclusion of evidence under section 24(2) of the Charter. In particular, the Crown submits of the trial judge erred in his appreciation of the seriousness of the breach, as well as the impact on the Charter protected interests of the accused.
[18] The Crown argues that even if the breath demand under section 254(3) was required to be particularized, the seriousness of such a breach would be minimal. The demand would still have required the accused to accompany the officer for breath testing. The Crown further submits that a demand made under the wrong section, for which the effect on the accused is identical, cannot rise to the level of seriousness that would require the court to disassociate itself from such behavior in order to maintain the reputation of the administration of justice.
The Respondent’s Position
[19] The Respondent maintains that the trial judge correctly found that the police are required to have subjective grounds for the specific offence for the arrest of an accused. In order for a breath demand to be lawful, it must be pursuant to that arrest.
[20] The Respondent argues that the existence of reasonable and probable grounds is a question of mixed fact and law. There may be cases where the issue arising on appeal gives strictly with the legal element of this mixed question. In this case, the Respondent submits that not only the trial judge’s legal analysis is under attack, but his factual findings as well.
[21] The Respondent submits that the ultimate conclusions of the trial judge, on a question where the Crown bore the legal onus, rest substantially on the findings of fact where he rejected significant portions of Officer Marko’s evidence.
[22] At trial, the Crown was required to establish, on a balance of probabilities, that the officer had subjective grounds to arrest Mr. Para for impaired driving. The trial judge found, as a fact, that this was not the case. He did so after making appropriate credibility findings. According to the Respondent, these findings are entitled to deference.
[23] The Respondent agrees that not everything resulting from unlawful breath testing qualifies as high impact when considering the second prong of the Grant test. The Respondent notes that the trial judge was alive to this issue but considered this case to be distinct.
[24] In this case, the trial judge came to the factual determination that Constable Marco attempted to mislead the court in an attempt to ameliorate his Charter offending behavior. Constable Marko’s dishonesty was a factual determination to which the trial judges is owed deference. The trial judge relied on Supreme Court authority for the legal rule that an officer’s dishonest testimony exacerbated the seriousness of the Charter violation.
Analysis and Conclusion
[25] Counsel agree that there is no case on point. There are two decisions that need to be considered. The first is R. v. Ross, 2015 ONCJ 115. Justice Paccioco, (as he then was), first discussed “reasonable and probable rounds at para. 15 and 17.
15 In the context of a breath demand, the reasonable and probable grounds standard is not an onerous test”: R. v. Bush 2010 ONCA 554, [2010] O.J. No. 3453 at para. 46. To be sure, this legal barrier is intended to protect the liberty of individuals from unreasonable police control. Being required to furnish a breath sample is, however, a relatively modest intrusion. Where there is sufficient reason to expect that an alcohol motor vehicle offence has occurred – namely where there are reasonable and probable grounds to believe that is so - it is therefore in the public interest to tolerate compromises on the liberty of drivers so that proper investigation can occur.
17 In operation, the reasonable and probable grounds standard has “both a subjective and objective component. The subjective component requires the officer to have an honest belief the suspect committed the offence. The officer’s belief must be supported by objective facts. 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 [that the demand entails]”: R. v. Bush, supra at para. 38.[^2]
[26] Justice Paccioco then turned to a breath demand pursuant to section 254(3) of the Code:
25 For these reasons, and with respect, I cannot agree with decisions that intimate that so long as a subject knows that the arrest or demand relates to an alcohol driving offence that is sufficient:... Sections 253(1)(a) and 253(1)(b) are different offences with different components. If an officer relies upon one of those offences, that is the offence that requires evaluation. Section 254(3) does not say otherwise. What that provision does is empower officers to make an evidential breath demand if they form reasonable and probable grounds that one of the two distinct alcohol motor vehicle offences in section 253 has occurred.
[27] While the Ross decision is factually distinct from the case before me, I find Justice Paccioco’s reasoning persuasive.
[28] Section 254(3) provides that an officer must believe, on reasonable probable grounds that a person has committed an offence under section 253. The plain reading of the statute is obvious. However, I agree that it would be incorrect to find that section 253 empowers the police to arrest and make breath demands for offences when they do not have reasonable and probable grounds to believe that offence has been committed.
[29] I find that the trial judge’s factual finding that Constable Marko did not have the requisite subjective grounds to make an arrest for impaired driving was a reasonable one that is entitled to deference. I find no error in his interpretation of the law governing the scope of section 8 of the Charter to the acts of this case.
[30] The second case that requires consideration is R. v. Jennings, 2018 ONCA 260, where the only issues at trial were whether the breath sample demand constituted an unreasonable search or seizure under section 8 of the Charter, and if so, whether the breath samples should be excluded as evidence under section 24(2). The trial judge accepted the defence argument that the constable’s belief was not objectively reasonable because he had not followed three procedures set out in the O.P.P. manual for using the specific ASD. The trial judge concluded that the failure to follow these procedures, meant that the constable could not have reasonably believed that the ASD was in proper working order, and therefore, could not have used the results of the roadside test as a reason to believe the Respondent had a blood alcohol level over .80. The trial judge’s finding of a section 8 Charter breach was overturned on appeal.
[31] The Crown relies on Jennings for the Court of Appeal’s guidance on the section 24(2) analysis found at para. 26:
26 On the first branch of the Grant test, although the trial judge concluded that the s. 8 breach was serious and favoured exclusion of the evidence, he did not explain how he arrived at this conclusion. He appears to have taken it as axiomatic that a “warrantless roadside search which formed the basis of the reasonable and probable grounds” of the arresting officer was per se a serious breach. But Grant requires more: there must be some examination of the police conduct and a determination of where it fits on a spectrum from mere technical breaches at one end to bad faith violations at the other…. Although the constable did not abide by the strict letter of the policy manual, he subjectively believed that the ASD reading was accurate, took steps to ensure that it was, and acted in good faith. The trial judge fell into the error identified by Leach J. in R. v. Molakandov, [2013] O.J. No. 2482, (S.C.) at para. 59, of finding any breach of s. 254(3) of the Criminal Code sufficient reason to favour exclusion of evidence under the first Grant factor.
[32] In this case, the trial judge was alive to the ruling in Jennings and gave reason why this case was distinct. In this case, the trial judge came to the factual determination that Constable Marco attempted to mislead the court in order to ameliorate his Charter offending behavior. Constable Marko’s dishonesty was a factual determination to which the trial judge is owed deference.
[33] The trial judge concluded that Constable Marco tried to mislead the court into thinking that the arrest was actually for “Over 80” when Constable Marko was clear in his examination-in-chief that he made the arrest on the impaired offence. The trial judge relied on R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 where the Supreme Court said this at para. 26:
26 I note that the trial judge found the officer’s in-court testimony to be misleading. While not part of the Charter breach itself, this is properly a factor to consider as part of the first inquiry under the s. 24(2) analysis given the need for a court to dissociate itself from such behaviour. As Cronk J.A. observed, “the integrity of the judicial system and the truth‑seeking function of the courts lie at the heart of the admissibility inquiry envisaged under s. 24(2) of the Charter. Few actions more directly undermine both of these goals than misleading testimony in court from persons in authority” (para. 160).
[34] A section 24(2) analysis is a question of mixed fact and law. As the Court of Appeal sated in R. v. McGuffie 2016 ONCA 365, 131 O.R. (3d) 643 at para. 64
…A trial judge’s decision to admit or exclude evidence under section 24(2) is entitled to deference on appeal, absent an error in principle, palpable and overriding factual error, or an unreasonable determination.
[35] I conclude that the trial judge’s findings in his section 24 (2) analysis were reasonable and that his application of the law governing section 24(2) of the Charter to the facts of this case should not be disturbed on appeal.
[36] For these reasons, I dismiss the appeal on both grounds raised.
Mr. Justice Robert N. Beaudoin
Released: March 17, 2021
COURT FILE NO.: 18-00069-AP
DATE: 20210317
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Appellant
– and –
SATHEESH PARA
Respondent
REASONS FOR decision
Beaudoin J.
Released: March 17, 2021
[^1]: R. v. Mann, 2004 SCC 52, 3 S.C.R. 59 at paras. 36, 37, and 44, R. v. Evans, 1996 248 (SCC), [1996] 1 S.C.R. 8 at para. 23.
[^2]: R. v. Para (5 September 2019), Ottawa 17-S9003 (O.C.J.)
[^3]: R. v. Bernshaw, 1995 150 (SCC), [1995] 1 S.C.R. 254
[^4]: At para. 44
[^5]: At para. 50
[^6]: At para. 53
[^7]: At para. 57