COURT FILE NO.: SCA(P) 661/21 DATE: 2022 04 13
ONTARIO SUPERIOR COURT OF JUSTICE (SUMMARY CONVICTION APPEAL)
B E T W E E N:
HER MAJESTY THE QUEEN Appellant
- and -
MOSES ODEMI Respondent
Counsel: Patrick Quilty, for the Appellant Stephen Whitzman for the Respondent
Heard: October 12, 2021, at Brampton, ON
REASONS FOR JUDGMENT
[On appeal from the Reasons for Judgment by Justice Atwood of the Ontario Court of Justice at Brampton, ON, delivered January 8, 2021]
BARNES J.
Introduction
[1] On January 8, 2021, Atwood J. of the Ontario Court of Justice acquitted the Respondent of refusing, without reasonable excuse, to comply with a demand made to him by a peace officer, to provide forthwith a sample of his breath as in the opinion of the qualified breath technician was necessary to enable a proper analysis of his breath to be made to determine the concentration, if any, of alcohol in his blood. contrary to section 254(5) of the Criminal Code, R.S.C., 1985, c. C-46 (“Code”).
[2] After considering the materials filed and the submissions of counsel, I will dismiss the appeal.
Overview
[3] At approximately 3:40 a.m. on July 17, 2018, Constable Lancia and Constable Lukasik observed the Respondent drive his vehicle at a slow rate of speed, make a wide turn and mount the curb. Constable Lancia and Constable Lukasik disagreed on whether the vehicle came to a rest on the curb or on the roadway. Constable Lancia was driving the police vehicle and Constable Lukasik was the passenger.
[4] Constable Lancia stopped the vehicle, spoke to the Respondent, and asked him to exit the vehicle. He asked the Respondent if he had consumed alcohol. The Respondent said no. Constable Lancia detected a smell of cologne which he believed could be used to mask the smell of alcohol. Constable Lancia made an approved screening device demand (“ASD”) for the Respondent to provide a sample of his breath for testing by an ASD.
[5] Constable Lancia relied on his conversation with the Respondent, and his observations of the driving, to ground his “reasonable suspicion that the Respondent had alcohol in his body”. Based on this belief, Constable Lancia conducted an ASD test: Code, s. 254(2). The Respondent failed the test.
[6] Constable Lancia described his belief as “a reasonable suspicion” that the Respondent “was driving while impaired”. He did not use the words of s. 254(2) (i.e., that the “Respondent had alcohol in his body”). Contrary to the Respondent’s submissions, this is not fatal.
[7] The only reasonable inference that can be drawn from Constable Lancia’s question to the Respondent inquiring whether he had consumed alcohol, and his issuance of the approved instrument demand, is that he believed that he had a reasonable suspicion that the Respondent had alcohol in his body: See also, R. v. Harris, [2007] O.J. No. 675 (S.C), at para. 45.
[8] Based on the failed ASD test, Constable Lancia determined that he had reasonable grounds to believe that the Respondent had over the legal limit of alcohol in his blood. He arrested the Respondent for having over the legal limit of alcohol in his blood and demanded that the Respondent provide a sample of his breath into an approved instrument in order to determine whether the Respondent had a blood alcohol concentration over the legal limit: Code, s. 254(3).
[9] Upon arrest, the Respondent was detained, and Constable Lancia was required to advise him of his rights to counsel immediately, subject to concerns for officer or public safety or to reasonable limits prescribed by law and justified under section 1 of the Charter: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 2.
[10] Constable Lancia testified that upon arrest, he provided the Respondent with rights to counsel on the scene. The Respondent said this happened at the station. Constable Lancia said upon arrest, the Respondent was resistive, aggressive and violent. Constable Lancia said he and Constable Lukasik had to work together to get the Respondent into the police cruiser. Constable Lukasik did not recall any violent behavior by the Respondent. The Respondent said he did not act in a violent manner. The trial judge found that the delay was 20 minutes. Atwood J. did not accept Constable Lancia’s testimony that rights to counsel was provided at the scene, or that the Respondent was resistive and violent upon arrest.
[11] The trial judge rejected Constable Lancia’s grounds for conducting the ASD test. The trial judge accepted Constable Lukasik’s observations of the Respondent’s driving. Atwood J. concluded that without Constable Lancia’s grounds for reasonable suspicion, the ASD demand was unlawful and, therefore, the approved instrument demand was unlawful.
[12] Atwood J. conducted a section 24(2) Charter analysis: R. v. Grant, 2009 SCC 32, 2009 SCC 353, 245 C.C.C. (3d) 1. Atwood J. concluded that the ASD result and evidence of the Respondent’s refusal to comply with the approved instrument demand should be excluded. As a result, the prosecution had no evidence to prove that the approved instrument demand was a proper demand and that the Respondent intentionally refused to comply with the demand. Atwood J. acquitted the Respondent.
Issues
[13] The Appellant raises three issues:
Did the trial judge err in concluding that erratic driving on its own could not ground a reasonable suspicion that the Respondent had alcohol in his body?
Did the trial judge err in concluding that if a driver complies with an unlawful ASD demand, they are entitled to refuse to comply with the resulting approved instrument demand?
Did the trial judge err by excluding the Respondent’s ASD fail result and refusal to comply with the approved instrument demand from evidence?
Analysis
Did the trial judge err in concluding that erratic driving on its own could not ground a reasonable suspicion that the Respondent had alcohol in his body?
[14] The Appellant misconstrued the trial judge’s reasons. The trial judge did not conclude that erratic driving alone could never support grounds for an officer’s “reasonable suspicion”. The trial judge concluded the nature of the driving described did not meet the low “reasonable suspicion” threshold. Atwood J.’s conclusion that the ASD was unlawful does not constitute an error in law.
[15] Factual findings of a trial judge are entitled to deference and shall not be displaced on appeal unless the trial judge has committed a palpable and overriding error. The application of the law to the facts is subject to the standard of correctness: R. v. Mackenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 54. Thus, the application of the law to the facts to determine if Constable Lancia had grounds to support “reasonable suspicion” as per s. 254(2)(b) of the Code is subject to the standard of correctness.
[16] The Appellant takes issue with the trial judge’s findings of fact. However, the Appellant submits that even based on the trial judge’s findings, his conclusion that the ASD was unlawful is an error.
[17] The sufficiency of the grounds in support of a police officer’s “reasonable suspicion” that a motorist has alcohol in their body is based on an assessment of a constellation of objectively discernible facts: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 29, 27, 32-34. This is a contextual analysis. Therefore, it follows that depending on the circumstances, erratic driving in the absence of an odor of alcohol can provide grounds for a police officer’s “reasonable suspicion”: R. v. Walsh, 2019 ONSC 2337, at paras. 5-19; R. v. Wilson, 2020 ONSC 1956, at para. 49.
[18] Contrary to the Appellant’s assertion, the effect of the trial judge’s rejection of Constable Lancia’s grounds for the ASD, and his acceptance of Constable Lukasik’s observations and the Respondent’s testimony, does not amount to a finding that erratic driving alone, in the absence of a smell of alcohol, cannot ground a police officer’s “reasonable suspicion”. Atwood J. was not satisfied that the nature of the erratic driving described was sufficient to ground “reasonable suspicion”.
[19] The trial judge rejected Constable Lancia’s description of a wide turn involving the Respondent’s vehicle crossing the yellow line onto the oncoming lane with an over correction that brought the vehicle to a rest on the curb. The trial judge accepted Constable Lukasik’s evidence of a wide turn which did not send the vehicle over the yellow line and described it “as if to avoid an object in the road” and a correction which sent the vehicle onto the curb briefly and back onto the roadway. This is a significant difference.
[20] The police officer who made the ASD demand was Constable Lancia. Constable Lancia concluded that he had the grounds to make an ASD demand based on his own observations. The operative assessment of objectively discernible facts based on objective and subjective criteria is an assessment of the belief held by Constable Lancia as a result of his own observations. The trial judge’s rejection of Constable Lancia’s grounds for his “reasonable belief” amounts to a rejection of the grounds for the ASD demand. On the evidence, this was a finding open to the trial judge to make.
[21] As noted, the trial judge provided detailed reasons why he rejected Constable Lancia’s evidence on his grounds for the ASD test. There was ample basis for the trial judge to make adverse findings on Constable Lancia’s credibility. Another example is Constable Lancia’s description of violent behaviour by the Respondent. Constable Lukasik did not witness violent behavior and the Respondent denied engaging in any violent behaviour. The trial judge found that there was no violent behaviour by the Respondent. Constable Lancia said that rights to counsel were provided on scene. The trial judge found that they were provided 20 minutes after arrest and at the police station.
[22] In addition, when his reasons are considered as a whole, it is apparent that the trial judge concluded that it was Constable Lancia’s observation that formed the basis for the “reasonable suspicion” to administer the test, not Constable Lukasik’s. Thus, an acceptance of Constable Lukasik’s evidence did not act as a replacement for the observations of Constable Lancia. The rejection of Constable Lancia’s grounds in support of the ASD meant that there were no other grounds to support the ASD. This conclusion was open to the trial judge to make. His reasoning does not constitute palpable and over riding error.
[23] In effect, Atwood J. found that Constable Lancia embellished his observations of the Respondent’s driving. The practical effect of rejecting Constable Lancia’s observation constituted a finding that Constable Lancia’s grounds for his “reasonable suspicion” were not reasonable on a subjective and objective basis.
[24] It was open to the trial judge to reject Constable Lancia’s testimony and correct for him to conclude that on the basis of the evidence he accepted, the low “reasonable suspicion” threshold had not been met.
Did the trial judge err in concluding that if a driver complies with an unlawful ASD demand, they are entitled to refuse to comply with the resulting approved instrument demand?
[25] Atwood J. expressed an equivocal opinion on the Respondent’s argument that when a driver has complied with an unlawful ASD demand, the driver is under no obligation to comply with the approved instrument demand. This is because the approved instrument demand is not a proper demand because it was based on an unlawful ASD test result. Ultimately, Atwood J. resolved the issue as follows:
What then is the result of finding that there is a Section 8 violation and a section 10 (b) violation? I do not necessarily agree with Mr. Daly that there is an automatic out the door effect on any charge in which there is a section 8 violation. There are many different section 8 violations, but what he has said, I think it's much more accurate when he says that if there is not a lawful demand that is the end of it. Nevertheless, if I'm wrong in that, I would turn to section 24(2). It must be remembered that I found a section 10(b) violation, although I said that on its own, I would not have excluded the evidence. And on the Section 8, I would have excluded it on its own, but in my view, I am still required to take a look at section 24 (2). I agree that the result is what Mr Daly has said but I do not agree that I can just say that. I should return to section 24 (2) and I will do it. [emphasis added]
[26] Ultimately, Atwood J. did not conclude that reliance on the test result from an unlawful ASD test, automatically rendered the approved instrument demand unlawful and therefore, the driver is under no obligation to comply with the approved instrument demand. He did not consider or follow R. v. Coutts, 2020 ONSC 3477, at paras. 24-34. The trial judge did not conclude that the Respondent did not have an obligation to comply with the approved instrument demand because the ASD fail result was derived from an unlawful ASD demand, instead Atwood J. conducted a section 24(2) Charter analysis. Therefore, there is no need for me to address this issue.
Which evidence is subject to exclusion under a section 24(2) analysis?
[27] The trial judge excluded ASD test results and the evidence of the Respondent’s refusal to provide the sample. The Appellant argues that while the ASD test is properly subject to consideration for exclusion, the Respondent’s refusal to comply with the approved instrument demand is the actus reus of the offence and hence not subject to exclusion under a section 24(2) analysis.
[28] In R. v. Hanneson (1989), 34 O.A.C. 352, and R. v. Ha, 2010 ONCA 433, the Ontario Court of Appeal held that the actus reus of an offence cannot be excluded due to a Charter breach. In R. v. Cobham, [1994] 3 S.C.R. 360, the Supreme Court of Canada excluded evidence of a refusal. The Ontario Court of Appeal in R. v. Van Deelen, 2009 ONCA 53, and R. v. Williams, 78 C.C.C (3d) 72, at p. 75, has suggested that refusals can be excluded.
[29] Several decisions at trial level stand for the proposition that evidence of refusals can be excluded on a section 24(2) Charter analysis. R. v. O’Shea, 2019 ONSC 1514, 372 C.C.C. (3d) 352, at paras. 49-51; R. v. Doobay, 2019 ONSC 7272, 61 M.V.R. (7th) 225, at para. 61; R. v. Kraus, 2015 ONSC 2769, 87 M.V.R. (6th) 222, at paras. 49-65; R. v. Soomal, 2014 ONCJ 220, 10 C.R. (7th) 279, at para. 63-83.
[30] Further Appellate clarification is warranted, however, in this case, except to indicate that I agree with the reasoning in jurisprudence supporting the principle that evidence of refusals can be excluded, further consideration of the issue is unnecessary, since the exclusion or inclusion of the ASD test results will resolve the issue of whether an acquittal or conviction should be registered. I will now consider the trial judge’s section 24(2) analysis using the three Grant criteria below.
Did the trial judge err by excluding the Respondent’s ASD fail result or refusal to comply with the approved instrument demand from evidence?
[31] The trial judge was equivocal in his conclusions on the impacts of the section 10(b) breach and did not follow R. v. Jennings, 2018 ONCA 260, 45 C.R. (7th) 224. This constitutes an error in principle but ultimately Atwood J. did not err in excluding the ASD test results.
[32] The trial judge’s decision to admit or exclude evidence under section 24(2) of the Charter is entitled to deference absent an error in principle, palpable and overriding factual error or an unreasonable determination: R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 64. Since the trial judge made an error in principle, I must reconsider the impact of section 24(2).
[33] The Supreme Court of Canada in Grant explains that a section 24(2) analysis begins with the premise that the accused’s Charter right has already been breached. The purpose is to maintain the good repute of the administration of justice. The perspective is that of a reasonable person with an understanding of the values underlying the Charter. The question to be asked is, after considering the nature of the Charter breach, will this reasonable person conclude that the admission of the evidence obtained as a result of the breach, will bring the administration of justice into disrepute? This analysis is about society’s confidence in the criminal justice system. It is prospective in nature and not intended to punish the police. The impact of these three factors, must be considered separately and then balanced to answer the question of whether the admission of evidence obtained as a result of the breach will bring the administration of justice into disrepute:
- The seriousness of the state conduct which caused the Charter breach;
- The impact of the breach on the interests of the accused protected by the Charter
- The interest of Society in the adjudication of the matter on it’s merits.
[34] First, there is the question of the nexus between the breach and evidence obtained. It is not disputed that the ASD test result was obtained in a manner that breached the Respondent’s section 8 Charter rights. The trial judge was equivocal in his assessment of the impact of the section 10(b) breach. The trial judge initially noted that he did not find a particular nexus between the 10(b) breach and the collection of the evidence. The Appellant relies on this to submit that the trial judge found that there was no connection between the 10(b) breach and the evidence.
[35] According to the Appellant, the trial judge erred by proceeding to consider the section 10(b) breach in his analysis. The Appellant submits that even if there was a nexus, the “fresh start” principle articulated in R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at paras. 1-3, and R. v. Manuchulenko, 2013 ONCA 543, 116 O.R. (3d) 721, at paras. 67-70, 77, applies, because the Respondent did not refuse to comply with the demand until after he had spoken to duty counsel.
[36] Though not stated explicitly, when the reasons for decision are considered as a whole, the trial judge concluded that on the facts before him, the section 10(b) breach is “clearly not too remote”. I agree with the Respondent that the trial judge did not make an error in principle in reaching this conclusion. The trial judge rejected Constable Lancia’s evidence that the Respondent was advised of his 10(b) rights on scene and a contributory factor to the delay in implementation was the Respondent’s resistive and violent behavior. The ASD test result existed prior to the section 10(b) breach but is connected to the evidence about the refusal.
[37] The trial judge was correct to consider the impacts of both the section 8 and section 10(b) breaches in his analysis, however, he was clear that he would not have excluded any evidence on the basis of the section 10(b) breach alone but would exclude evidence on the basis of the section 8 breach alone. When the reasons are considered as a whole, it is apparent that the section 10(b) breach was not a significant factor in the decision to exclude evidence.
[38] In assessing the impacts of the Charter breach on the Respondent’s Charter protected rights, the trial judge noted the provision of a breath sample is a minimal intrusion on the Respondent’s Charter protected rights, however, a focus on the provision of the breath sample alone was overly narrow and should be broadened to acknowledge that the state interference with the Respondent’s liberty “comes as a package”. The trial judge makes this point persuasively as follows:
The next step is to identify the degree of impact. The Section 8 analysis starts with the direction in Grant that breath samples are non-intrusive. Section 9 considers liberty, freedom of choice and sometimes privacy. In this case the impact on the accused's liberty interest was minimal as the extended detention was related to medical treatment in the ambulance and at the hospital. The delay in providing right to counsel did not impact the accused freedom of choice and her Section 9 and 10(b) rights. That impact here was substantial but weighed with the minimal intrusiveness of the breath samples. The overall impact on the accused interest falls in the middle of the spectrum".
I note that there have been a number of judgments which have detailed the difference perhaps in approach from the Court of Appeal's position. There is, I think, not necessarily a universal acceptance of the fact that breath samples are nonintrusive. That is clearly true. But as Justice Duncan has pointed out, it comes in a package. It comes in a package with being handcuffed and put in the back of a cruiser and transported to a station, to being held and forced to give conscriptive evidence. It is in a package that sometimes results as it did here in a motor vehicle being impounded, dragged away and put in a pound at some considerable economic expense to a defendant.
It is I think for most citizens a profoundly humiliating aspect to be handcuffed to the rear, double-locked, put in a cruiser and taken to a police station, and taken into a breath room and obliged to give breath samples. That is not nothing. And while I agree that the provision of breath samples are non-intrusive, I would not agree that the package surrounding it is non-intrusive particularly, the being handcuffed, put into a cruiser and taken to a police station. There is, in Officer Boreczek's evidence, some slight mark from the handcuffs on the defendant at the time. That is not particularly significant, but it is not nothing. And the fact that he was, again I will use the old term of "landed immigrant" and is being forced to give conscripted evidence and potentially affect his ability to become a citizen is not insignificant as well. So while I would not say that the impact is at the more serious end of the continuum of impact, it is certainly not at the non-intrusive end.
[39] This passage from the trial judge’s reasons is persuasive and suggests perhaps further appellate consideration is warranted. However, this approach is not consistent with the binding authority of the Ontario Court of Appeal decision in Jennings, 2018 ONCA 260, at paras. 27-32, which prohibits the “package approach” in the 24(2) analysis. Therefore, I agree with the Appellant that the trial judge committed an error in principle, when he adopted the “package approach”. As noted, this requires a reconsideration of his 24(2) analysis.
The seriousness of the State conduct which caused the Charter breach
[40] The seriousness of the State conduct which caused the Charter breach consideration involves an assessment of whether the admission of the evidence would telegraph a message to the public that the court was condoning the Charter infringing state conduct: See Grant.
[41] The State infringing conduct was the embellishment of observations of the Respondent’s driving by Constable Lancia. The trial judge did not make a palpable and overriding error in his factual determinations. His factual determinations guide my analysis. The trial judge concluded as follows:
However, there are other areas besides that in which there was very different testimony the two roadside officers. And the fact that there are a number of those points still leaves me with a concern that Officer Lancia may have, as they say, "Over egged the pudding" when he came to give his RPG to Officer Boreczek. I will give some of those points in which there was a clear difference between the evidence of Lancia and the evidence of Lukasik. For example, the evidence of the turn and the sequela to the turn from Mississauga Valley Boulevard. The way in which the turn was made, as it was described by Officer Lancia, was that it was actually so wide that he went over the line between the two lanes of traffic going in opposite directions before correcting and intimated overcorrecting, because a wheel went up onto the curb, and thereafter describing the entire vehicle's right side being on the curb and remaining there after the police stopped it. Officer Lukasik said that it was a wide turn as if he was going around something. No description about going over any yellow line. Instead, he described it as being as if he was going around an obstruction, something on the road. The question from Ms. Engineer, given the testimony from Officer Lancia that there was no signal for that turn, the answer was, "From what I recall, I think so. I am not sure. I don't have it in my notes." And then he describes mounting the curb for approximately one or two seconds and then going back on the road. All of those points, absent of course that he simply is not sure about the signal, but the amount of time on the curb, what happened in mounting the curb, that is the entire right side versus just the right front wheel is different. I indicated earlier during submissions by counsel on the issue with mounting the curb and where it remained afterwards rather than going back on the road, Officer Lukasik would be in a much better opportunity to observe. I should not say much better. A better opportunity to observe than Officer Lancia because he went up on the right side of the car, that is the passenger side. That is the side closest to the curb and Officer Lancia went up on the other side where the driver's side.
[42] In effect, the Respondent’s Charter protected rights were infringed because an officer embellished the grounds. This is the crux of the infringement. This is very serious. In the context of the trial judge’s own factual findings, his conclusion that Constable Lancia’s conduct was not that serious or somewhat serious is unreasonable. It cannot be equated with good faith to embellish the grounds for this state Charter infringing conduct. The facts as found by the trial judge speak for themselves. The officer’s description of his grounds was misleading. Condonation of such conduct will undermine the public’s confidence in the rule of law and its processes and, in effect, in the administration of justice. The seriousness of this conduct favours exclusion.
[43] I have reached this conclusion by focusing only on the section 8 violation and the resulting evidence, which is the failed ASD test. I note, however, that the impugned State conduct is even worse when considered in conjunction with the cumulative effect of the trial judge’s rejection of the police officer’s testimony on when section 10(b) rights were given, and the assaultive and violent behavior of the Respondent.
[44] In view of the conclusion I have reached on the effect of the section 8 violation and conflicting binding Appellant authority on whether evidence of the actus reus of refusal can be excluded in a section 24(2) Charter analysis, I do not consider the section 10(b) breach or the trial judge’s rejection of the police officer’s evidence post the ASD fail test.
The impact of the breach on the interests of the accused protected by the Charter
[45] The second line of inquiry requires an assessment of the actual impact of the State infringing conduct on the accused’s Charter protected interests. The current state of binding jurisprudence is that a breath sample collected via a Charter breach has minimal impact on an accused’s Charter protected interests: See Jennings. Applying this narrow criterion, the breach’s impact was indeed minimal. The Respondent provided a breath sample for the ASD test and did not provide a breath sample for testing by an approved instrument. This factor favors admission of the ASD test result.
The interest of society in the adjudication of the matter on it merits
[46] The question to be answered in this third line of inquiry is whether society’s interest in the truth-seeking function of the criminal process favours admission. Relevant factors under consideration include the reliability of the evidence, the seriousness of the charge, and the importance of the evidence to the viability of the prosecution: See Grant.
[47] Drinking and driving offences are very serious. Society’s interest in the truth-seeking function of the criminal process captures the fair and proper adjudication of such offences. The ASD test result is very reliable. It is central to the viability of the prosecution. A proper approved screening instrument demand is an essential element of a section 254(5) offence. In this case, the ASD test is the basis for the approved screening instrument demand. Without it, there is no proper demand. Without a proper demand, the prosecution is not viable. This factor favours inclusion.
Conclusion
[48] On balance, the seriousness of the State infringing conduct is such as to outweigh the outcome of the other two considerations. In addition, on balance, admission of the ASD test result would bring the administration of justice into disrepute. The ASD test result is excluded and the appeal from acquittal is dismissed.
Barnes J.
Released: April 13, 2022
