COURT FILE NO.: CR-18-A12619
DATE: 2021/09/17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
TRISTAN MCGRATH
Defendant
Moiz Karimjee, for the Crown
David Anber, for the Defendant
HEARD: By videoconference on June 23, 2021.
Reasons for DECISION
Parfett J.
[1] On January 21, 2020, the Appellant was convicted after trial of driving while the concentration of alcohol in his blood exceeded 80mg% contrary to s. 253(b) of the Criminal Code[^1]. He appeals from that decision.
Overview of facts[^2]
[2] On August 31, 2018, at approximately 11:02pm, the Appellant was driving his car on Innes Road in the City of Ottawa. He encountered a RIDE program and was stopped by Cst. Karen Rintoul.
[3] The Appellant was asked about his alcohol consumption. During the conversation, Cst. Rintoul observed the smell of alcohol emanating from the Appellant and asked him to pull over to the side of the road. She then directed him to leave his car and he was asked to sit in the cruiser.
[4] At 11:06pm, the Appellant failed the roadside test and was arrested for driving while concentration of alcohol in his blood exceeded 80mg% (over 80). He was read his rights to counsel at 11:09pm and transported to the police station in downtown Ottawa.
[5] At the police station, Cst. Rintoul realized she had forgotten to read the Appellant the breathalyzer demand and she did so then at 11:29pm.
[6] At 11:56pm, Cst. Rintoul advised the breathalyzer technician, Cst. Dunn of the grounds for the arrest and at 12.03am, Cst. Dunn read the breathalyzer demand to the Appellant. Two tests were taken, and the results were 150mg% and 140mg% respectively.
[7] The Crown conceded at trial that Cst. Rintoul did not read the breathalyzer demand as soon as practicable. Therefore, the issue at trial was whether that failure was cured by Cst. Dunn’s demand made forthwith after he formed his own reasonable and probable grounds to believe the Appellant was driving with more than the legal limit of alcohol in his system.[^3]
Evidence in relation to disputed issues
[8] Cst. Dunn was present at the scene when Cst. Rintoul was dealing with the Appellant. Defence counsel at trial argued that, because of information provided by Cst. Rintoul, Cst. Dunn formed his own grounds for requiring breath samples while he was still at the scene and therefore, his demand was also unlawful.
[9] The evidence at trial on that issue was as follows:
a. Cst. Dunn had no direct dealings with the Appellant at the scene[^4] ;
b. Cst. Dunn was aware that the Appellant was under arrest and that he was needed as a breathalyzer technician[^5];
c. He assumed that Cst. Rintoul had conducted a roadside screening test to determine that the person had more than the legal limit of alcohol in their system[^6];
d. He understood a failure of the roadside screening test to mean that the person had a blood alcohol concentration of greater or equal to 100mg of alcohol per 100ml of blood[^7];
e. The grounds for arrest he received from Cst. Rintoul at 11:56pm were essentially the same as he what he understood at the scene, apart from the addition of the grounds for Cst. Rintoul’s decision to request a roadside test[^8];
f. Cst. Rintoul testified she advised her colleagues at the scene – one of whom was Cst. Dunn – that the Appellant had failed the roadside test[^9]; and
g. She told Cst. Dunn that she had arrested the Appellant.[^10]
Issues on appeal
[10] At trial, Defence conceded that there was no substantive defence to be raised on the over 80 charge. Instead, Defence agreed that the case would stand or fall on the determination of the Charter application in relation to whether the Appellant was arbitrarily detained and/or whether the breathalyzer samples constituted an unlawful and unreasonable search and seizure.[^11]
[11] Defence counsel argues on this appeal that the trial judge erred in finding that Cst. Dunn formed reasonable and probable grounds for the breathalyzer demand at 11:56pm. He also argues that the trial judge erred in finding that the Appellant had not been arbitrarily detained.
Standard of review
[12] Counsel agree that in relation to the first issue – whether the breathalyzer demand was made in accordance with s. 254(3) of the Code – that the issue is one of mixed fact and law and consequently, the standard of review is reasonableness. [^12]
[13] With respect to the second issue – whether the trial judge erred in finding the Appellant had not been arbitrarily detained – the issue is whether there was an error in law and therefore, the standard of review is correctness.[^13]
Analysis
1. Validity of breathalyzer demand
[14] The trial judge found that Cst. Dunn did not have sufficient information at the scene to have formulated the subjective belief that there were reasonable grounds to require breath samples be taken.[^14] Specifically, he noted
The first time [Cst. Dunn] subjectively and objectively had [RPG] was when he was at the station after he received specifics from Constable Rintoul about her interactions with the driver, and was able to properly formulate his own grounds based on that information. [^15]
[15] In the present case, Defence argues that either the trial judge misapprehended the evidence leading to a palpable and overriding error or he did not apply the correct burden of proof.
[16] Misapprehension of evidence occurs where the trial judge has made a mistake as to the substance of the evidence, has failed to consider evidence that is relevant to a material issue, or has failed to give proper effect to evidence.[^16] Appellate courts will not intervene where errors of this nature have occurred unless those errors are material and form an inherent part of the ultimate findings of fact that underpin the trial judge’s conclusion.[^17] As noted in Morrissey and cited with approval in R. v. Lohrer: [^18]
Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction, then, in my view, the accused’s conviction is not based exclusively on the evidence and is not a ‘true’ verdict. [^19]
[17] The implications of a finding that there has been a misapprehension of evidence are intertwined with the analysis of whether the verdict is unreasonable. In R. v. Carroo, the Ontario Court of Appeal outlined the following analysis:
…Where misapprehension of the evidence is alleged, the court should first consider the reasonableness of the verdict: s. 686(1)(a)(i). If the appellant succeeds on this ground an acquittal will be entered. If the verdict is not unreasonable, then the court should determine whether the misapprehension of evidence occasioned a miscarriage of justice: s. 686(1)(a)(iii). If so, the conviction must be quashed and, in most cases, a new trial ordered. If the appellant cannot show that the verdict was unreasonable or that the error produced a miscarriage of justice, the court must consider the question of whether the misapprehension of evidence amounted to an error in law: s. 686(1)(a)(ii). If so, the Crown must demonstrate that the error did not amount to a miscarriage of justice: s. 686(10(a)(iii). [^20]
[18] As is well known, a verdict is unreasonable if the verdict is one that a properly instructed judge acting judicially could not reasonably have rendered. [^21]
[19] In the present case, Cst. Dunn testified that he did not receive sufficient information to form the reasonable and probable grounds to require breath samples until 11:56pm.[^22] Prior to that time, as noted above, Cst. Dunn knew only that the Appellant had been arrested for ‘over 80’ and he assumed that a roadside screening test had been conducted. He had no information concerning the grounds for the roadside screening test or its result. Defence counsel made much of the fact that Cst. Rintoul testified she had told Cst. Dunn that the Appellant had failed the roadside screening test. Even taking that evidence into consideration, the fact remains that Cst. Dunn had no idea what the basis for the test was and failing the roadside screening test does not, per se, furnish the grounds for making a subsequent breathalyzer demand. [^23]
[20] Consequently, the trial judge did not misapprehend the evidence and there was evidence that he accepted that supported his finding that Cst. Dunn formed the reasonable and probable grounds to make the breathalyzer demand at 11:56pm.
[21] The second prong of the Appellant’s argument is that the trial judge effectively reversed the burden of proof. The basis for this argument revolves around Cst. Dunn’s evidence that he assumed Cst. Rintoul had conducted a roadside screening test and Cst. Rintoul’s evidence that she advised Cst. Dunn of the fact that the Appellant had failed the test. The Appellant argues that,
…faced with the circumstantial evidence within Cst. Dunn’s testimony and the direct evidence within Cst. Rintoul’s evidence, the trial judge could not have affirmatively found that Cst. Dunn did not form his subjective grounds [at the scene]. [^24]
[22] I disagree. Cst. Dunn’s testimony as to what he knew at the scene was that he assumed that a roadside screening test had been conducted given Cst. Rintoul had arrested this person for ‘over 80’. His evidence goes no further than that. Based on that evidence, it was open to the trial judge to conclude that Cst. Dunn did not form the subjective grounds for the breathalyzer demand at the scene. Effectively, that is precisely what the trial judge did conclude when he said in his reasons for decision,
Having reviewed the evidence of Constable Dunn, I do not find he had reasonable and probable grounds, in the commonly understood sense of our law, when Constable Rintoul advised him in general terms at the roadside that she was proceeding downtown with her driver. Constable Dunn had no dealings with the accused and was not apprised at the roadside of any specifics of the interaction between Constable Rintoul and the driver. [^25]
[23] Therefore, I cannot agree with the Appellant’s assertion that the trial judge reversed the burden of proof in concluding that Cst. Dunn formed his grounds for making a breathalyzer demand at 11:56pm.
2. Arbitrary detention
[24] The arguments raised at trial in relation to this issue were much broader than the one raised on this appeal. On appeal, the argument regarding arbitrary detention relates solely to the time between 11:06pm, when the Appellant was arrested and 11:29pm when Cst. Rintoul read the breathalyzer demand.
[25] The trial judge considered this issue and determined that there was no arbitrary detention. He found as follows:
The Ontario Court of Appeal, in Cayer, recognized that powers of arrest and continuing detention are not tied only to the specific statutory regime governing the breath sample procedure. A police officer has the power, under section 497(1.1) of the Criminal Code, to arrest a person in order to prevent the continuation of an offence. Such was the case in Cayer. A police officer also has the power, under Section 497(1.1) of the Code, to establish identification and to secure further evidence of the offence – here, to get the intoxilyzer readings of the level of the accused’s blood. Constable Rintoul had the statutory authority to detain and bring Mr. McGrath to the station to secure evidence of the offence; in other words, the breathalyzer readings.[^26]
[26] Defence counsel argues that the trial judge erred in that the issue was not what Cst. Rintoul could have done, but rather, whether what she did was appropriate in the circumstances. Defence counsel cites R. v. Ross as support for this position.[^27] However, the facts in Ross are significantly different than in the present case. In Ross, the arresting officer not only failed to make the breathalyzer demand in a timely manner, he also failed to arrest the accused for the correct offence.[^28] Consequently, in that case the court found there was an arbitrary detention.
[27] In the present case, there is no question that Cst. Rintoul had the necessary grounds to arrest the Appellant for the offence of ‘over 80’, which she did. As noted by the trial judge, s. 497(1.1) of the Code provides that,
A peace officer shall not release a person under subsection (1) if the peace officer believes on reasonable grounds,
(a) that it is necessary in the public interest that the person be detained in custody …. having regard to all the circumstances including the need to….
(ii) secure or preserve evidence of or relating to the offence.
[28] Cst. Rintoul testified that she brought the Appellant into the station to conduct breathalyzer tests.[^29] Consequently, the arrest was lawful and the detention was for a lawful purpose.
[29] Furthermore, even if the detention between 11:06 and 11:29pm could be found to be arbitrary, the matter would not end there. There would have to be a further legal analysis pursuant to s. 24(2) of the Charter. Given the detention in question was for only 23 minutes, the failure to make the demand for breathalyzer tests was inadvertent and that failure was corrected before the tests were conducted, in my view it is unlikely that the evidence gathered would be excluded. The analysis in R. v. Le[^30] provides support for this view, even accepting that the arbitrary detention in Le was for a much shorter time.
Conclusion
[30] For the reasons set out above, I find that the trial judge did not err in his findings and consequently, the appeal is dismissed.
The Honourable Madam Justice Julianne Parfett
Released: September 17, 2021
COURT FILE NO.: CR-18-A12619
DATE: 2021/09/17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
TRISTAN MCGRATH
Defendant
reasons for decision
Parfett J.
Released: September 17, 2021
[^1]: R.S.C. 1985, Chap. C-46, as amended.
[^2]: Taken from the Appellant’s Factum and not disputed by Crown (Respondent)
[^3]: See R. v. Guenther, [2016] O.J. No. 3057 (CA).
[^4]: Transcript of January 20, 2020, p. 28, lines 23-29.
[^5]: Transcript of January 20, 2020, p. 29, line 14.
[^6]: Transcript of January 20, 2020, p. 31, lines 28-30.
[^7]: Transcript of January 20, 2020, p. 18, lines 1-5.
[^8]: Transcript of January 20, 2020 at p. 17, lines 13-28.
[^9]: Transcript of January 21, 2020 at p. 36, lines 6-12. See also Decision at p. 2.
[^10]: Transcript of January 21, 2020 at p. 35, line 18.
[^11]: Decision at p. 4.
[^12]: Housen v. Nikolaisen, 2002 SCC 33 at para. 28.
[^13]: R. v. Shepherd, 2009 SCC 35, [2009] 2 SCR 527 at para. 19.
[^14]: Decision at pp. 17-18.
[^15]: Decision at p. 18.
[^16]: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 at 538.
[^17]: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732 at para. 1.
[^18]: Ibid. at para. 1.
[^19]: Supra note 16 at 541.
[^20]: R. v. Carroo, 2010 ONCA 143, 259 O.A.C. 277, [2010] O.J. No. 711 at para. 23.
[^21]: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381 at para. 36.
[^22]: Transcript of January 20, 2020 at p. 17, lines 13-28.
[^23]: R. v. Bernshaw, 1995 CanLII 150 (SCC), [1994] S.C.J. No. 87; R. v. Charette, 2009 ONCA 310 at paras. 11 & 44.
[^24]: Appellant’s Factum at para. 44.
[^25]: Decision at p. 17.
[^26]: Decision at p. 21.
[^27]: 2015 ONCJ 115, [2015] O.J. No. 1043 (OCJ).
[^28]: At para. 19.
[^29]: Transcript January 21, 2020 at p. 50, line 5.
[^30]: 2019 SCC 34, [2019] S.C.J. no. 34 at paras. 281-296.