Mark’s Case: The Judge’s Decision
* Names have been changed to protect client privacy.
Case Name:
R. v. MARK
Between
Her Majesty the Queen, and
MARK.
[2010] O.J. No. 4888
2010 ONCJ 512
Information No. 09-0041
Ontario Court of Justice
Ottawa, Ontario
J.D. Wake J.
Heard: June 3, 2010.
Oral judgment: June 3, 2010.
(46 paras.)
Counsel:
Mr. Donoghue, Counsel for the Crown.
Mr. Auger, Counsel for the Accused.
DECISION
1 J.D. WAKE J. (orally):– The accused was charged with over 80, contrary to section 253(1)(b) of the Criminal Code. The accused has brought an application to exclude the evidence of his readings into the breathalyzer on the basis of section 24(2) of the Charter, resulting from alleged breaches of sections 7, 8, 9, 10(a) and (b) of the Charter.
2 By agreement the application was heard together with the trial. The accused elected to call no evidence on either.
Issues.
3 Essentially there are four issues for me to determine as framed by counsel.
A) Was the accused advised of his right to contact counsel of his choice and provided with a reasonable opportunity to do so?
B) Was the detention of the accused by the officer arbitrary because it was done on private property where there was no statutory power to do so, and where the accused alleges the officer did not have the requisite grounds at common law to stop the accused’s vehicle?
C) Did the arresting officer have reasonable and probable grounds to make a breath demand, given that he did not consider whether the accused had residual mouth alcohol when he failed the approved screening device test?
D) If one or more Charter breaches are found, should the evidence of the breathalyzer tests be excluded pursuant to section 24(2)?
Factual background.
4 At 2:15 a.m. on March 1, 2009 O.P.P. Constable B. was patrolling the area of the Centrum Plaza Shopping Centre in the west end of Ottawa. He was conducting what he termed a “moving ride” program. He explained that there are many licenced establishments within that plaza and the purpose of his patrol was to observe vehicles leaving the parking lot and stop drivers who may be impaired by alcohol. He observed a blue Jeep Liberty moving very quickly through the parking lot near the Wal-Mart store which was closed. Constable Bell decided to stop this vehicle and caution him to slow down in light of the road conditions which were slippery and to check on the driver’s sobriety. The stop was made in the parking lot at 2:15 a.m. The vehicle was driven by the accused who was the sole occupant. P.C. Bell detected an odour of alcohol which he believed was coming from the accused. In response to a question put to him by the officer, the accused admitted to having consumed two beers. The officer had no recollection as to whether the accused had stated when he had consumed the beers, but the officer did have the clear impression that “They had been consumed recently.” The officer asked the accused to accompany him to his cruiser for a roadside breath sample.
5 Once in the cruiser, the officer read the formal demand under section 254(2) of the Criminal Code from his force issued card. He demonstrated to the accused how to provide a breath sample into the approved screening device, which the officer had in his cruiser, and at 2:20 a.m. the accused provided a sample of his breath which registered a fail, signifying to the officer that the accused’s blood alcohol concentration was in excess of 100 milligrams of alcohol per 100 millilitres of blood, due to what he believed to be the calibration of the approved screening device. The officer did not turn his mind as to whether the test should have been delayed due to the presence of residual mouth alcohol.
6 The accused was arrested for over 80, handcuffed, read his rights to counsel and cautioned. The accused indicated that he understood his rights, but when asked if he wished to contact a lawyer, he replied that he was unsure. At 2:26 a.m. an intoxilyzer demand was read to the accused and he was then transported to the station arriving at 2:43 a.m.
7 Constable B. testified that he again spoke to the accused about contacting a lawyer, but the accused was unsure about speaking to a lawyer. The officer testified that he pointed to a list of lawyers in the interview room and told the accused that he had also called duty counsel if he wished to speak to duty counsel. He also testified that if after speaking to duty counsel the accused wished to contact any of the lawyers on the list, he would be given an opportunity to do so and that the accused was told this.
8 The accused did speak to duty counsel for approximately eight minutes and voiced no concerns about the advice he had received.
9 The accused was turned over to Constable S. a qualified breathalyzer technician and provided two samples of his breath directly into an approved instrument at 3:13 a.m. and 3:34 a.m. respectively, both of which exceeded 80 milligrams of alcohol per 100 millilitres of blood.
Analysis.
A) Section 10(a) and (b).
10 Although there may be certain deficiencies in the evidence of Constable B. which will be dealt with later in these reasons, honesty and candour are not among them. I accept his evidence concerning the reading of the rights to the accused. His interpretation of the accused’s reply that he was unsure, being that the accused was unsure as to whether to call a lawyer as opposed to being unsure of the process of contacting one, was certainly open to the officer, particularly in light of the accused’s reply that he understood his rights. The officer made arrangements for the accused to speak with duty counsel and advised him that he would be given an opportunity to contact any other lawyer from the list if he wished to after speaking with duty counsel.
11 It might have been preferable if the officer had confirmed that the accused had been satisfied with the advice given and did not wish to call anyone else, but there is a need for the accused to be reasonably diligent in exercising his right to speak to his own lawyer if he had one, or another lawyer, other than duty counsel and this was not done by the accused.
12 There is no evidence to contradict Constable B. on what he did or said to the accused concerning the section 10 issue. The onus is on the accused, on a balance of probabilities to establish a breach under section 10. He has failed to do so. There is no suggestion that he did not understand his rights to counsel or that he was impeded from exercising them by Constable B..
B) Arbitrary detention unauthorized by law.
13 Mr. Auger, on behalf of the accused, submits that since Constable B. stopped the accused in a mall parking lot, section 48 of the Highway Traffic Act did not apply so that Constable B. had no statutory right to stop the accused’s vehicle. Mr. Auger relies on a 1998 summary conviction appeal decision of Boyko, J. in R. v. Tresham1 to the effect that the special provisions in section 48 can only be used to permit random stops to determine the sobriety of a motorist if the stop is made on a highway as defined in the Highway Traffic Act. The principal case relied on by Boyko, J. is the Supreme Court of Canada’s decision in R. v. Mansour2 which held that a parking lot adjacent to an apartment building was not a highway within the meaning of the Highway Traffic Act of Ontario as it was then worded.
14 This was an important consideration in the context of that case which dealt with whether a person whose driver’s licence was suspended by the province could be convicted under the Criminal Code of driving while disqualified, as it was then worded, for driving in a parking lot which the court held did not require a licence. The case did not determine whether a peace officer’s powers under section 48 were limited to highways simply because section 48 did not exist at the time of Mansour.
15 Section 48 itself makes no reference to the necessity of the driver of a motor vehicle being on a highway before he or she can be stopped to determine whether there is evidence to justify making a demand under section 254 of the Criminal Code. Boyko, J. resisted the Crown’s suggestion that he was bound by the Court of Appeal’s decision in R. v. Milne3, in which the accused was arrested while in his vehicle on a commercial parking lot adjacent to where he worked, on the basis that the issue had never been argued in front of the Court of Appeal.
16 The Crown has not argued the applicability of section 48, but instead relies on the powers of the police to make traffic stops at common law. In these circumstances and given my view that Constable B. had the common law power to make the stop he did in this case, any further argument on the limitation of section 48 to highways will have to wait for another day.
17 I do note in passing that there was no discussion in Tresham about the common law powers of a police officer to make a vehicle stop in a parking lot on private property and yet Mr. Auger submits that the decision of R. v. Hopman4 relied on by the Crown for the assertion of that authority, in private parking lots, is inconsistent with Tresham. It is difficult to see how Hopman could be inconsistent on a point that was never raised or mentioned in Tresham. Mr. Auger submits that Hopman is inconsistent with the Supreme Court of Canada’s decisions in R. v. Clayton5 and R. v. Mann6. While Caldwell, J. in Hopman does not refer specifically to those decisions, she does adopt the reasoning of Molloy, J. in R. v. Dillon7 who does refer to Mann extensively in a thorough review of the application of the Dedman8 test to detention in parking lots, open to the public, and coming to the conclusion that an officer stopping a vehicle in that situation, to check on sobriety, is not breaching the accused’s section 9 rights.
18 I do not find that Clayton or Mann, neither of which involve impaired driving cases, are particularly applicable to the line of cases beginning with Dedman, through Hufsky9 and Ladouceur10 which do deal with the particular police inquiry into the sobriety of a motorist in circumstances which are justifiable and are not either contrary to section 9, or if random and arbitrary, are nevertheless saved by section 1.
19 In Saskatchewan where no provincial legislation existed, the Court of Appeal in R. v. Burke11 concluded that there was a common law authority for police to stop motorists at a roadblock to check sobriety. That power was held to be a reasonable limit on section 9.
20 In Ladouceur the validity of a statute provision authorizing purely random stops was at issue and the court held that such stops, if permitted by provincial legislation or common law, are a reasonable limit on section 9, where the stop is for the purpose of checking the driver’s sobriety.
21 Here Constable B. stated that he was performing a mobile ride program. He was observing vehicles leaving the parking lot of a plaza at 2:15 a.m. where all the stores were closed, other than a number of licenced premises. He saw the accused’s vehicle travelling quickly in slippery road conditions, albeit he was unable to estimate the speed or pace the vehicle, but suffice to say he was reasonably alarmed by the driver’s actions. He clearly stated that one of his two reasons for deciding to stop the vehicle was to check on the driver’s sobriety. I find that there was an implied invitation for him to go onto that parking lot for that purpose and that his actions in doing so were justifiable and not in contravention of section 9. Even if his exercise of his common law power could be regarded as random and arbitrary, in these circumstances it would be justified under section 1.
Residual mouth alcohol.
22 It is submitted that P.C. B. did not form the requisite grounds for making a breath demand under section 254(3) of the Criminal Code as he did not consider the distinct possibility that the accused may have had residual mouth alcohol from recent consumption.
23 In R. v. Einerson12 Doherty, J.A. stated the following at paragraphs 14, 34 and 35,
“It is well known by police officers that where a driver has consumed alcohol in the 15 to 20 minutes before the test is administered, the result of the test may be unreliable because of the presence of residual mouth alcohol. The whole purpose of administering the test under section 254(2) is to assist the officer in determining whether there are reasonable and probable grounds to arrest the driver for a drinking and driving offence. If the officer does not or reasonably should not rely on the accuracy of the test results, it cannot assist in determining whether there are reasonable and probable grounds to arrest. Administering the test without delay in those circumstances would be pointless and would defeat the purpose for which the test is administered.”
Doherty, J.A. went on to say,
“The flexible approach to section 254(2) accepts that different officers may assess similar circumstances differently in deciding whether some brief delay in the administration of the section 254(2) test is necessary. Indeed, the reasonable and probable standard must reflect the particular officer’s assessment tested against the litmus of reasonableness. Where an officer honestly and reasonably concludes on the basis of available information that he can form no opinion as to whether the driver consumed alcohol within the prior 15 to 20 minutes, the officer is entitled to rely on the accuracy of the statutorily approved screening device and administer the test without delay. That is not to say that another officer might not assess the same situation differently and have legitimate concerns about the reliability of a test administered without a brief delay and act accordingly. In each case the officer’s task is to form an honest belief based on reasonable grounds about whether a short delay is necessary to obtain a reliable reading and to act on that belief.”
24 Further in paragraph 35, Doherty, J.A. stated another principle relied upon the Crown Mr. Donoghue in this case.
“Bernshaw makes it clear that the mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on the accuracy of the statutorily approved screening device.”
25 The principles set out in Bernshaw and Einerson were summarized by Durno, J. in R. v. Mastromartino13 in which he confirmed,
“The effect of residual mouth alcohol is well known to courts that regularly deal with drinking and driving cases.”
26 In a recent decision on this issue Ducharme, J. in R. v. Ah-Yeung14, released April 19, 2010, after referring to this comment from Durno, J. in Mastromartino stated that he would be prepared to take judicial notice of the effect of residual mouth alcohol in causing a “false fail” on the approved screening device. The principles summarized by Durno, J. in Mastromartino are these:
1- Officers making ASD demands must address their minds to whether or not they would be obtaining a reliable reading by administering the test without a brief delay.
2- If officers do not or reasonably could not rely on the accuracy of the test results, the results cannot assist in determining whether there are reasonable and probable grounds to arrest.
3- Officers making ASD demands may briefly delay administering the test if, in their opinion, there is credible evidence which causes them to doubt the accuracy of the test result unless the test was briefly delayed.
4- Officers are not required to wait before administering the test in every case where a driver may have been in a bar shortly before being stopped. The mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on the accuracy of the screening device.
5- Whether or not officers are required to wait before administering the screening test is determined on a case by case analysis focusing on the officer’s belief as to the accuracy of the test results if the tests were administered without delay and the reasonableness of that belief.
6- The fact the driver is observed leaving a bar is a relevant circumstance in determining whether it was reasonable for the officer to delay the taking of the test in order to obtain an accurate sample. However, officers are not required to ask drivers when they last consumed alcohol.
7- If the officer decides to delay taking the sample and that delay is challenged at trial, the court must decide whether the officer honestly and reasonably felt that an appropriately short delay was necessary to obtain a reliable reading.
27 That is obviously not the case we have in this matter.
8- If the officer decides not to delay taking the sample and that decision is challenged at trial, the court must decide whether the officer honestly and reasonably believed that he could rely on the test result if the sample was taken without delay.
28 That is clearly the issue that is before me in this trial.
29 It is clear from the evidence of Constable B. that in making the approved screening device demand he never addressed his mind as to whether or not he would be obtaining a reliable reading by administering the test without a brief delay on account of the effects of residual mouth alcohol from recent consumption of alcohol. Not only did he fail to address his mind to the issue, but he was totally mistaken as to the length of time needed to dissipate the effect of residual mouth alcohol, notwithstanding Doherty, J.A.’s statement in 2004 in Einerson,
“It is well known by police officers that where a driver has consumed alcohol in the 15 to 20 minutes before the test is administered, the result of the test may be unreliable.”
30 P.C. B.’s understanding of that concept was reflected in the following exchange in his evidence in chief. Question,
“Was there any thought to waiting any period of time before conducting that test?”
Answer,
“No, there wasn’t. No – I – again – I did not write down or – and I do not recall if I asked Mark what time he had consumed the beverages or the alcoholic beverages prior to the traffic stop, but like I – I don’t know what to tell you – I – I assumed that it was before I stopped him in his vehicle, but again, gave no real concern if it had been 10 or 20 minutes. I wasn’t sure.”
Question,
“Is there any concern ever with waiting to provide the test?”
Answer,
“Other than if someone – if a driver had literally just taken a swig or – or a mouthful of alcohol and then gotten behind the wheel immediately and I had stopped within 10 to maybe 20 seconds after that, I would – I would be worried about it and then give the driver a – you know, five minutes or so in an attempt to – for the mouth alcohol to dissipate, but it – that would be the only circumstance I can think of.”
31 As indicated earlier, I have no trouble accepting Constable B. as an honest and candid witness. The only difficulty is that his evidence belies an ignorance of the impact of residual mouth alcohol which is so notorious to the courts, as stated, by Durno, J., that Ducharme, J. is prepared to take judicial notice of it. The mistaken view of the effect of residual mouth alcohol and Constable B.’s failure to consider it might not amount to a section 8 violation if I am prepared to find that there was no evidence of drinking shortly before the approved screening sample was taken and if I were prepared to find that it would be speculative to conclude that the approved screening device reading might not have been accurate. Would there be any reason to find that P.C. B., had he been fully apprised of the principles summarized in Mastromartino, would have proceeded differently and delayed the taking of the test?
32 In determining these questions I must consider the following,
– the applicant’s car was stopped by P.C. B. while it was still in the plaza parking lot. The evidence disclosed that the plaza contained numerous drinking establishments and restaurants;
– the time of the stop was 2:15 a.m. when all other establishments other than the licenced establishments would have been closed;
– the applicant admitted to consuming two beers;
– Constable B. testified that he could smell the odour of alcohol on the applicant’s breath and believed that consumption of alcohol had been recent, although he was unable to put a time on when that might have been;
33 Finally, it must be remembered that Constable B. was conducting a mobile ride program and that he was at that location at that time to, in his words, “stop drivers who may be impaired by alcohol”, driving out of that parking lot which was adjacent to the plaza which contained the numerous licenced premises.
34 Taking all of these factors into consideration, I have concluded that there was a distinct possibility that the accused still had the residual effects of mouth alcohol from recent consumption which might affect the reliability of the ASD test. P.C. B. should have considered this. Although he was under no obligation to ask the accused when he had his last drink, the officer, in cross-examination, acknowledged that in future, he will do so to ensure that the test is reliable. Although an accused would be under no obligation to answer such a question, a non-response could be taken into the overall consideration as to whether a delay in administering the test would be justifiable.
35 In any event, viewed objectively I cannot find that P.C. B., in light of his evidence and all of the circumstances which presented themselves to him that night, reasonably believed that he could rely on the test result by taking the sample without delay. Since the officer admitted that the result of the test, being a fail, was the principal ground on which he made a subsequent breath demand and that he would not have had reasonable and probable grounds to do so without that fail result, I must conclude that there was an absence of reasonable and probable grounds to make the breath demand. It was therefore invalid and the subsequent seizure of the accused’s breath samples were taken contrary to section 8 of the Charter since they were not obtained reasonably.
36 This leads me to the fourth issue which is the question of whether the results should be excluded under section 24(2). At this point I will suspend reading of the judgment because counsel – I think when we last met, I had indicated that I would give you my decision on the issues that have been raised at this point in time, but that I would give you an opportunity to make any submissions on the issue of section 24(2) in light of the ruling that I’ve made.
**********
— Submissions by counsel not transcribed
37 THE COURT: The test for exclusion of evidence under section 24(2) has recently been reformulated in R. v. Grant15. I will assess each of the three factors set out in that decision as they apply to this case.
A) The seriousness of the Charter infringing state conduct.
38 I have found Constable B.’s evidence to be both honest and candid. When confronted in cross-examination by the training manual for taking approved screening device tests, he readily admitted that he was unaware of the requirement to delay taking the test for 15 minutes when residual mouth alcohol is present and he undertook to make the necessary considerations concerning that possibility in future cases.
39 In paragraph 75 of Grant, the court stated,
“Good faith on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or willful blindness cannot be equated with good faith.”
40 Put another way, as Ducharme remarked in Ah-Yeung at paragraph 53,
“Admitting one’s incompetence does not excuse it.”
And again, at paragraphs 55 and 56,
“The reputation of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct. Police officers who stop and detain motorists in order to perform ASD tests must execute their duties efficiently, competently and accurately. There is no question that the need to combat drinking and driving is a pressing social concern. The public therefore accepts the use of breath samples both for roadside screening and ultimately for the determination of blood alcohol levels. Nevertheless the administration of justice would inevitably fall into disrepute if such shoddy police conduct were permitted to form the basis for the arrest, detention and subsequent testing of drivers. As Sopinka, J. observed in Bernshaw, at paragraph 74, “Although we all agree that Parliament has every reason to vigorously pursue the objective of reducing the carnage on our highways, that objective is not advanced by subjecting innocent persons to invasions of privacy on the basis of faulty tests. I do believe that this is what Parliament intended in enacting section 254 of the Criminal Code.”
41 In this case it is unacceptable that Constable B. should have been completely ignorant of what Doherty, J.A., Durno, J. and Ducharme, J. stated was a fact so well known to police forces and courts that judicial notice could be taken of it, according to Ducharme, J. There was a serious training issue involved here which is all the more astonishing because Constable B. is also a qualified breathalyzer technician. His evidence undermines the confidence the courts must have in the process by which officers receive that qualification. It is not appropriate for officers to learn, during cross-examination in a trial, of such a basic concept as the need to wait 15 to 20 minutes following the consumption of alcohol before testing a motorist on an approved screening device to avoid an unreliable result. I find that Constable B.’s actions, whether through inadequate training or negligence, did not comply with either the Criminal Code or the Charter and constitute a serious breach which weighs in favour of the exclusion of the evidence subsequently obtained.
B) The impact of the breach on the Charter protected interests of the accused.
42 Although it is recognized that the taking of breath samples is not “a significant compelled intrusion upon the body”, I must again refer to Ducharme, J.’s decision in Ah-Yeung. I note parenthetically that it was Ducharme, J. who decided in R. v. Padavattan16 cited in Grant, that was part of a series of cases voicing a criticism of the former conscription test for the admissibility of bodily samples that all too often led to almost automatic exclusion. Nevertheless Ducharme, J. states the following at paragraphs 61 and 62, after confirming that the breath taking procedure is minimally intrusive:
“But that should not end the matter, because the demands placed on a driver to facilitate these tests are often not minimally intrusive. In this case, the appellant was arrested, handcuffed, placed in the rear of the police car and taken to a police station, a 16 minute trip and once at the station, was kept in police custody for another hour and 50 minutes.”
“Thus, while the trial judge was correct in saying that the treatment of the appellant was not oppressive, that is not the test. Certainly such an interference with the appellant’s personal liberty cannot be dismissed as minor. Thus, where the police lack the requisite grounds for the section 254(3) demand, these aspects of the appellant’s treatment constitute a significant violation of section 9.
While the public are supportive of the legislative scheme in place to combat drinking and driving, this support cannot be presumed to extend to police actions that involve the detention and arrest of drivers without the requisite statutory and constitutional grounds. To condone or excuse the behaviour in this case would send a message to the public that despite their Charter rights under sections 8 and 9 of the Charter, the police can’t ignore these and detain and arrest any driver. Thus, despite the minimal intrusiveness of the breath testing procedures themselves, the second branch of Grant also weighs in favour of exclusion of the evidence.”
43 I pause here to note that factually the decision. in Ah-Yeung is somewhat different than the case before me. For one thing, Ducharme, J. did not find that there was a breach of section 8 on the facts of that case, for the failure of the officer to turn his mind to the presence of residual mouth alcohol. The situation involved a motorist travelling at a speed of 120 kilometres per hour down Yonge Street, when he was stopped by a police officer who – in those circumstances, might not be expected to have turned his mind to the possibility of residual mouth alcohol. Nevertheless, the officer’s incompetence in that case in operating the approved screening device was what was at issue and Ducharme, J. held that his failure to turn his mind to the issue of residual mouth alcohol fed into the general argument of incompetence in the administration of the ASD in that case. I wish to make it clear that there are differences in the case, however the principles cited by Ducharme, J. I find somewhat apposite to the case before me, particularly with respect to these comments dealing with section 24(2). In the case before me the accused was arrested, handcuffed, placed in the rear of a police car, had his car towed and presumably was required to pay storage fees to retrieve it, he was transported to the station and kept in police custody for some period of time. His failure of the approved screening device alone brought about the 12 hour suspension of his licence and his subsequent samples to the intoxilyzer as a result of the ASD failure, resulted in an administrative suspension of his licence for three months. In the circumstances of this case, I find that this branch of the test also weighs in favour of exclusion, although minimally so.
C) Society’s interest in the adjudication of the case on its merits.
44 It is hard to imagine an impaired driving related offence where this branch would not weigh in favour of inclusion, given the reliability of the intoxilyzer samples and the fact that exclusion would result in a dismissal.
45 In balancing the three branches from Grant, in this case, I must consider that the exercise is not to punish the police for misconduct, but rather to consider the impact over time of admitting evidence obtained by a Charter breach of this nature. Section 254 of the Criminal Code sets out a procedure for the stopping of motorists which has been interpreted to permit their detention and even the suspension of rights to counsel before an approved screening device test is taken. This has been justified in light of the serious societal problem posed by motorists who drink and drive. However, again referring to Ducharme, J. in paragraph 69 of Ah-Yeung,
“The public must have confidence that those officers who are charged with exercising the important powers under section 254 of the Criminal Code have the necessary skills and training to do so in a manner that complies with both the Criminal Code and the Charter.”
46 On balance, I find that in this case admitting the samples would bring the administration of justice into disrepute, since the samples are necessary for the proof of this charge, it will have to be dismissed.
