ASAP: Constitutional or Evidentiary Requirement, it depends

Shady Mawad was convicted of over 80. Mawad had argued that the police, in making a demand for his breath and taking the samples violated section 8. The trial judge found that there was a section 8 violation in relation to the making of the demand but admitted the evidence under section 24(2) and convicted Mawad who appealed. That appeal was dismissed: R v Mawad, 2016 ONSC 7589.

Shady Mawad was driving his car. Someone thought he was impaired. They called the police. Officer Guthrie received a radio call at 4:34 am. Guthrie located Mawad at 4:41. After speaking with Mawad and forming a reasonable suspicion, Guthrie made a ASD demand at 4:47 am Mawad produced a fail at 4:53 am. At 4:57 Guthrie arrested Mawad and read his rights to counsel (a minute later) – leaving the scene at 5:29. The arresting officer failed to make a breath demand. At 6:20 the breath technician took custody of Mawad and made the breath demand at 6:26.

Given that the first sample was obtained beyond two hours of the time of driving, at trial the Crown called a forensic toxicologist to “read back” the samples and provide direct evidence regarding Mawad’s BAC at the time of the offence.

Mawad argued that his s8 rights were violated – by the failure to make the demand as soon as practicable and by the failure to take the samples as soon as practicable. The trial judge concluded that the breath demand was not made by the officer as soon as practicable but admitted the evidence under s24(2). The trial judge did not find that the failure to obtain the samples as soon as practicable violated s8. Mawad was convicted. He appealed.

On appeal Mawad argued, inter alia, that the trial judge erred in not finding that the delay in taking the samples violated s8.

With respect to the taking of the samples, Mawad asserted that the failure to take the samples as soon as practicable amounted to a violation of s8. The summary conviction appeal court rejected that notion. The requirement that samples be taken as soon as practicable in section 258(1)(c) is an evidentiary requirement that permits the Crown to take advantage of the presumption of identity. Where the samples are not taken as soon as practicable the Crown loses that presumption. The results are still admissible however. The summary conviction appeal court, citing R v Deruelle, [1992] 2 SCR 663 and R v Newton, 2013 ONSC 644 in support, held:

With great respect, I fail to see how a statutory short cut given to the Crown to prove a charge of “Over 80” against an accused can be elevated to a violation of his or her constitutional rights. [@26]

Mawad is a helpful decision that clarifies the impact and scope of provisions that are sometimes misconstrued. In short, three points summarize the principles elucidated by this decision. First, s254(3) requires that an officer makes a breath demand as soon as practicable upon forming grounds. This provision is the statutory authority that permits the obtainment of breath samples. Failure to comply with that requirement undermines that authority and thus has constitutional implications – a section 8 violation.

Second, s258(1)(c) requires that samples be taken as soon as practicable. This provision is merely an evidentiary assist, however. Failure to comply with this requirement has no constitutional implications – merely evidentiary ones (the loss of the presumption of identity).

Third, the requirement that samples be “provide[d]” as soon as practicable in s254(3) is not one that is imposed on the state. It follows that the failure to obtain samples as soon as practicable has no constitutional implications.

DM

Avoiding an otiose and absurd result

Carson Bingley was driving his car, poorly. His driving was erratic. He cut off one driver and crossed over the centre line. He nearly collided with another car. Bingley pulled into the parking lot of an apartment complexand struck another car. The police were called.

Officer Tennant responded. She spoke to Bingley. She noted several things that led her to believe that Bingley was impaired: his zipper was undone; he had difficulty doing it up; he stumbled; he was swaying and uncoordinated; his eyes were glossy and bloodshot; his speech was slurred; he was having trouble focusing. While officer Tennant believed Bingley was impaired, there was no odour of alcohol. An ASD sample revealed a BAC of 16. Officer Jellinek – who is trained and qualified as a “drug recognition expert” (thereby classifying him as an “evaluating officer within the meaning of section 254) – arrived on scene. Standard Field Sobriety Tests were conducted. Bingley failed. Bingley was arrested. Back at the station officer Jellinek conducted an evaluation (as set out in section 3 of the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations, SOR/2008-196). Bingley failed.

A urine sample was obtained pursuant to section 254(3.4). It was analyzed. Carboxy THC (an inactive by-product of THC – the psychoactive component of cannabis), cocaine and Alprazolam were detected in the urine sample.

At trial one of the issues raised by counsel for Bingley, Trevor Brown, was whether officer Jellinek could provide an “opinion” on the issue of whether Bingley was impaired by drug absent a Mohan voir dire. The Crown argued that the statutory provisions permitted such an opinion to be given without the need for such a voir dire. The trial judge disagreed. Bingley was acquitted. The Crown appealed. The summary conviction appeal court judge, Justice McLean, allowed the Crown appeal. Bingley appealed.

A unanimous Court of Appeal dismissed the appeal: 2015 ONCA 439. Bingley appealed to the Supreme Court – his appeal was dismissed: 2017 SCC 12. The majority offered the following points in dismissing the appeal.

First, the language of s254(3.1), in particular, the phrase “to determine”, does not support the conclusion that a DRE is automatically entitled to provide an opinion in court. Unfortunately, the majority did not discuss this point in any detail – there was no statutory interpretation undertaken, an approach advanced by the Crown and accepted at the Court of Appeal.

Second, the majority noted that the concession by Bingley that the evidence of the DRE is logically relevant, necessary and not subject to any other exclusionary rule (3 of the Mohan criteria) was “appropriate” [para 18].

Third, the majority noted that the only issue that remained was whether he was properly qualified. With respect to that issue, the officer, a “DRE” is “literally” a “drug recognition expert” who is certified as such for the purposes of the scheme. This expert receives “special training in how to administer the 12-step drug recognition evaluation and in what inferences may be drawn from the factual data he or she notes”.  It follows that a DRE is a properly qualified expert who “undoubtedly possess[es] expertise on determining drug impairment that is outside the experience and knowledge of the trier of fact” [para 21].

To put it another way, the only purpose of a voir dire in this case would be to determine whether Constable Jellinek has expertise over and above an ordinary person. Normally, the judge determines this on evidence adduced at the voir dire. But s. 254(3.1) and the legislative and regulatory scheme that accompanies it conclusively answer the question of expertise. The DRE is established by Parliament to possess special expertise outside the experience and knowledge of the trier of fact. He is thus an expert for the purpose of applying the 12-step evaluation and determining whether that evaluation indicates drug impairment for the purposes of s. 254(3.1). His expertise has been conclusively and irrebuttably established by Parliament [para 27].

Fourth, the majority rejected the argument advanced by Bingley that the scheme was for investigative purposes only and did not permit the DRE to provide an opinion in court: “While a DRE’s evaluation certainly has an investigative purpose, their application of the 12-step drug recognition evaluation and determination of impairment is relevant evidence and can assist the trier of fact” [para 21].

Fifth, the majority noted that since the expertise of the DRE is the implementation and interpretation of the 12-step test, the DRE need not be trained in the underlying science [para 22]. More to the point, perhaps, the majority noted that the 12-step evaluation secures its reliability from the statutory framework itself.  

Sixth, any challenge to the underlying effectiveness of the evaluation would require a challenge to the legislative framework itself [para 25].

Bingley is an important decision. Drug impaired driving is a dangerous and too frequent occurrence in Canada. The legislative scheme created by Parliament and now interpreted by the Supreme Court is logical, principled and effective. As the majority noted, the schemed (and concessions by Bingley) make clear that the common law requirements for admissibility are made out and thus, the DRE’s opinion should be admitted without the need for such a voir dire. “To so require would be otiose, if not absurd, not to mention a waste of judicial resources” [para 28]. 

DM

Cataloging the basis for an Inventory Search

Winston Ellis was driving an Acura. He fled from it. The police searched it - they searched him too. They found a firearm in the car - the keys were in his possession. He sought to exclude the firearm. The trial judge admitted it - having found no violation of s8 but a violation of s10. Ellis appealed. His appeal was dismissed: 2016 ONCA 598.

Ellis was seen street racing in an Acura. The officer who spotted him followed the Acura into a neighbourhood where he briefly lost sight of it. He then spotted the vehicle parked in a shared driveway between two residences – neither of which matched the address for the registered owner of the Acura (who was not Ellis). The officer then noticed Ellis walking away from the Acura. He radioed for back-up. Ellis was stopped by responding officers who placed him under “investigative detention” and advised him of such – they did not however advise him of his right to counsel. During the detention Ellis advised the officers that there was an outstanding warrant for his arrest. The officers also learned that (i) his address matched that of the registered owner of the Acura; (ii) that he was a gang member; and (iii) that he was potentially armed and dangerous and had a previous firearms conviction.

The officers conducted a pat down search for safety during which he asked Ellis to empty his pockets. Keys, two cell phones and cash were discovered. The items were immediately returned to Ellis. With respect to the vehicle Ellis denied driving it, but said his girlfriend had earlier in the night (although he later admitted he had left it in the driveway where police had recovered it).

Ellis was eventually arrested for careless driving. The police decided to impound the vehicle, pursuant to section 221 of the Highway Traffic Act, as it was apparently abandoned. Following from that decision, the police chose to do an inventory search. Sgt Martin also testified that the search was incident to the arrest in order to find proof of ownership and to see if the ignition had been damaged. During the search the police discovered a handgun hidden behind a console panel.

At trial Ellis sought to exclude the handgun arguing, inter alia, that the pat down search and the search of his car violated section 8. The trial judge dismissed both arguments (although the trial judge did find a breach of section 10(b) but admitted the evidence under 24(2)). Ellis was convicted. He appealed.

With respect to the pat down search, contrary to Ellis’ submission, R v Mann, 2004 SCC 52 did not pronounce a general rule that a protective pat down search incident to an investigative detention can never extend to a search of the contents of pockets” @28. Where the initial pat down search supports an initial belief that the detainee may be armed a further search is warranted. The further search is logical and constitutionally valid in such situations: R v Plummer, 2011 ONCA 350.

Here the initial pat down revealed objects that could have been weapons, the Court or Appeal concluded:

The officer had a reasonable belief that the appellant might be armed. In these circumstances, it is not the function of this court, many years after the incident and with knowledge of what was actually in the pockets, to criticize the officer for searching the pockets to ensure that the hard objects were not weapons. A police officer in such circumstances is in a dynamic and potentially life-threatening situation and he or she must be able to undertake a protective search in a reasonable manner to preserve his or her safety. [@30]

With respect to the vehicle search, the Court of Appeal agreed with the trial judge and rejected that a search incident to arrest could justify the search.

The police knew that the appellant and the owner of the Acura lived at the same address so it was unlikely to be stolen, and it was not otherwise necessary to seize any ownership or registration documents.  It is also not clear to me what documentation relevant to the outstanding warrants could be discovered in the vehicle. [@42]

However, the police were entitled to rely upon the statutory authority provided in section 221 HTA to conduct an inventory search. In so concluding the court noted the following principles related to “inventory searches”:

  1. Impounding vehicles under section 221(1) imposes on the police the responsibility to keep property safe. In order to fulfil that responsibility the police must have the corresponding authority to search and inventory the vehicle: R v Nicolosi, 1998 CarswellOnt 2476 (CA) @29-30
  2. The fact the police may have ulterior interests, such as their belief a firearm may be discovered, does not render the search unlawful: R v Wint, 2009 ONCA 52 @11; leave ref’d 2009 CarswellOnt 3494 (SCC)
  3. Inventory searches are not limited to itemizing visible property – the police are entitled to open bags and other containers: R v Wint, 2009 ONCA 52 @14-15; leave ref’d 2009 CarswellOnt 3494 (SCC)
  4. Such inventory searches, however, rely on statutory authority, in the absence of such authority, where searches are conducted for policy reasons they will be unconstitutional: R v Nolet, 2010 SCC 24 @53; R v Nicolosi, 1998 CarswellOnt 2476 (CA) @34; R v Caslake, 1998 CarswellMan 1 (SCC) @30

In the present case the car was apparently abandoned – unlike R v Dunkley, 2016 ONCA 597 – the vehicle was left by the accused at a location and in a manner that supported the conclusion it was “abandoned”.

The appellant fled from the police and admitted to trying to avoid arrest on his outstanding warrants. He then parked and locked the car in a mutual driveway to which he had no right or association, and then walked away. His actions up to that point were consistent with those of someone who wished to dissociate himself from the vehicle. [@61]

In the circumstances, the vehicle was properly subject to impound and thus inventory search.

DM

Intentionally Present

Joseph Kennedy and Donald Schaeffer attacked a fellow inmate while in custody. Keith O’Loughlin decided to join in. He was convicted by a jury after trial, and appealed from conviction and sentence: R v O’Loughlin, 2017 ONCA 89.

The case for the Crown at trial was simple: video surveillance of the assault. The video depicted O’Loughlin first watching the assault intently, and then purposefully walking toward the bathroom, where the assault had moved. O’Loughlin was then seen peeling back a hand clutching the doorframe, and then moving his leg in a manner consistent with a knee strike: @paras 4-8.

After brief deliberations, a properly instructed jury convicted O’Loughlin. Trial counsel agreed that the jury could find O’Loughlin guilty as either a joint principal or as an aider: Section 21(1), Criminal Code of Canada. The jury was instructed that their verdict need only be unanimous in finding guilt, not as to the nature of O’Loughlin’s participation:  R v Thatcher [1987] 1 SCR 652.

At trial, the principal assailant –Kennedy– testified for the defence. He testified that O’Loughlin was not involved in the attack. Kennedy testified that O’Loughlin intervened to stop him from stomping on the victim’s head, saying, “Joe, that’s enough, that’s enough”. The defence position at trial was that while O’Loughlin was present for the assault, he was not participating: @ para 9. This position was rejected by the jury.

The Ontario Court of Appeal reviewed the video surveillance evidence. They found no basis to interfere with the verdict. The video formed a sufficient basis on which the judge could instruct that O’Loughlin could be found guilty. As such, the appeal was dismissed. The appeal from sentence was allowed, but also dismissed: @paras 18-28.

Comment

In writing for a unanimous court, Watt J. highlighted that O’Loughlin’s presence was not accidental. This was not a case of simply being “in the wrong place at the wrong time.” His presence during the assault was “intentional”, and his involvement was “active”: @para 16. While “mere presence” or “passive acquiescence” is not enough to establish criminal liability as a party (see R v Kirkness, 1990 3 SCR 74; R v Dunlop, [1979] 2 SCR 881), in this case, the takeaway point from the Court of Appeal is clear: presence itself during a crime does matter, and it is not necessarily innocent.   

SS

You are not the Reasonable Person

Berry was charged with the first degree murder of Andrew Christie. Berry testified in his own defence. He admitted to shooting Christie but said he did so in self-defence. Alternatively, he argued provocation.

The jury convicted Berry of second degree murder and the judge set his parole ineligibility of 17years. Berry appealed conviction and sentence- both were dismissed: 2017 ONCA 17.

One of the grounds of appeal related to the trial judge’s instruction on the defences of self-defence and provocation.

As part of his defence Berry called Dr Pollock, a psychologist who testified about Berry’s “reduced cognitive abilities and his personality traits.” [@25]

Dr. Pollock testified that he was of “modest intelligence”, with an IQ in the 5th percentile (meaning that 95% of individuals his age would score higher). In terms of his personality, it was Dr. Pollock’s opinion that the appellant was anxious, self-centred, emotionally detached, socially awkward, and suspicious of other people. Because of these characteristics, persons with the appellant’s profile are easily slighted and are particularly sensitive to perceived threats or provocation; they have a tendency to misinterpret their social perceptions and experience challenges trying to solve difficult problems in times of stress. [@25]

With respect to self-defence the trial judge agreed “to charge the jurors were entitled to consider both the appellant’s diminished intelligence and his psychological makeup on the issue of his subjective state of mind” @68. However, with respect to the objective component of the test the judge instructed the jury that they could only consider Berry’s “diminished intelligence but not his psychological makeup.” [@68]

The Court found no error in this decision. From an evidentiary perspective, the Court held that Dr Pollock’s evidence did not establish:

a sufficient causal connection between the appellant’s “border-line IQ”/“modest intelligence” (5th percentile), and the appellant’s personality characteristics the defence sought to highlight as possible explanations for his reaction (being anxious, excitable, distrustful of others). [@71]

In this case, Berry’s psychological makeup was not attributable to anything beyond his control and as such had no place in the objective component of the self-defence inquiry. Did Berry believe that he had no choice but to shoot the victim and was that belief objectively reasonable? @73  Permitting Berry to rely on the evidence of his psychological makeup as an explanation for his actions would improperly conflate the subjective and objective components of the test. [@73]

The Court reached a similar conclusion with respect to the defence of provocation. The test on the defene of provocation has both a subjective and objective component.

First, was the wrongful act or insult of such a nature to deprive an ordinary person of the power of self-control.

Second, did the accused act on that insult, suddenly, before any time for passion to cool.

The Court summarized the trial judge’s instructions as follows:

In applying the accused person test – i.e., in tackling the suddenness of the reaction and whether the appellant’s passion had time to cool – the trial judge told the jurors they could consider the appellant’s individual characteristics and personal reaction (i.e., both his intellectual limitations and his particular psychological makeup as characterized by Dr. Pollock). But in applying the ordinary person test – i.e. whether the wrongful act or insult was sufficient to deprive the ordinary person of the power of self-control – the trial judge told them they could not do so. [@78]

In finding that the trial judge had not erred the Court referenced Charron J’s decision in R v Tran, 2010 SCC 58 where Her Honour held that: 

Personal circumstances may be relevant to determining whether the accused was in fact provoked – the subjective element of the defence – but they do not shift the ordinary person standard to suit the individual accused. In other words, there is an important distinction between contextualizing the objective standard, which is necessary and proper, and individualizing it, which only serves to defeat its purpose. [@83]

Although the Court in Berry leaves open the possibility that diminished mental capacity could be relevant to the ordinary person inquiry in the provocation analysis [@84] for now the court says that you and the reasonable person are not one and the same.

LT

Settled Law

Lam was convicted of driving with an illegal blood alcohol concentration [BAC] – he was over 80. This was his second trial.  The Crown sought to invoke the presumption of identity and attempted to file the certificate of analysis as evidence of Lam’s BAC at the time of driving. The defence opposed the filing of the certificate and argued that the failure of the police to have the approved instrument inspected in accordance with the Alcohol Test Committee’s [ATC] recommendations was fatal to the Crown’s case.

The trial judge accepted this argument and found that the police failure to send the Approved Instrument for annual inspection for 13 months constituted evidence which tended to show that the instrument was operated improperly. The accused was acquitted. The Crown appealed.

The Summary Conviction Appeal [SCA] judge held that the trial judge erred and ordered a new trial. In particular, the SCA found that:

elevating the recommendations of the Alcohol Test Committee that approved instruments be inspected annually to a condition precedent for proper operation of the instrument. This error led the trial judge to conclude that the presumption of identity in s258(1)(c) was not engaged and thus could not be invoked to establish the application’s blood alcohol concentration when he was operating his motor vehicle [@6]

Lam appealed to the Court of Appeal. The Court refused to hear the appeal: 2016 ONCA 850

The Court did so for four reasons.

First, leave from summary conviction proceedings are exceptional. Moreover, there is a need for finality. When all is said and done Lam will have had 2 trials, 2 summary conviction appeals and this journey to the Court of Appeal. [@12]

Second, the grounds of appeal are a mix of law and fact. With respect to the law it concerns only “the application of well-settled principles of law in no need of restatement or refinement” [@13]

With respect to the misapprehension of facts, the facts in this case as so many others, rarely “transcend the idiosyncrasies of the case at hand” [@13]

Third:

invocation of the frequency with which alcohol-driving prosecutions populate the lists in the Ontario Court of Justice to fund a claim of wider application proves too much. If frequency of prosecution were the touchstone for granting leave to appeal, leave would become the rule, not the exception in alcohol-driving offences.

Fourth, the substantive issue is in fact well settled law: See St-Onge-Lamoureux, 2012 SCC 57 "(not Jackson, 2015 ONCA 832 as the respondent suggests)" [@15].

LT

Now or Never

Just after midnight in late October 2014 police came across Pociurko standing about 3 metres from his motor vehicle which had obviously just been in an accident. Mrs Pociurko and the couple’s child were also on scene and standing some 10-15meters from the car.

When police spoke with Pociurko he admitted to drinking but denied driving. Mrs Pociurko gave lots of different answers to the question of who was driving. Sometimes she said she was driving, other times her husband, sometimes she said both were driving. Finally she asserted that the accident was as a result of a mechanical failure. None of these versions had any impact on the officer’s legally authority to demand a sample of Pociurko’s breath.

The officer made just such a breath demand of Pociurko who asserted that because he was not the driver he would not blow. The officer let Pociurko know the consequence for refusing to provide a sample. Pociurko again refused and pulled out his cell phone. He told the officer he was calling his lawyer. The officer took the cell phone and placed Pociurko under arrest.

He was convicted at trial of refusing to provide a breath sample. He appealed, unsuccessfully: 2016 ONSC 6691

On appeal Pociurko argued that his refusal was equivocal because he was confused about his obligations. He further argued that his confusion and equivocation was apparent as he was trying to call his lawyer when he was so rudely interrupted by the police. The summary conviction appeal judge disagreed.

Richetti J held that the evidence did not support the defence assertion of confusion. In fact, to the contrary Richetti J found that there was “no confusion about the demand for a breath sample and there was no confusion about Mr Pociurko’s refusal to provide it promptly.” [@24]

Moreover, there is no obligation on police to explain the law. In other words, police did not have to explain to Pociurko that neither his claim of not being the driver nor his desire to speak with a lawyer were reasonable excuses for refusing . The summary conviction appeal judge gave short shrift to the defence assertion that such an obligation exists, instead finding that:

Mr. Pociurko took it upon himself to refuse to do so based on a basis which is not a reasonable excuse for the refusal. Essentially, he now blames the police officer for not explaining the law in much greater detail [@25]

In short, any version of ‘maybe I will later’ in response to a breath demand “constitutes a refusal since it is not providing a breath sample promptly” [@21]

LT

Can't Sneak that Third Party in the Back Door

Asogian Gunalingum was charged with kidnapping, extortion and assault. Prior to trial he applied to adduce evidence of a “third party suspect” – namely Victorbalaratnam. The court dismissed the application: 2014 ONSC 6512.

The victim, Veerpal Brar was taken from her home around 8 am on November 11, 2011. She was kidnapped from her home by a man dressed in a suit pretending to be a fence contractor. Brar also recalled that a second man, who she knew to be Vajinder Singh, assisted in the kidnapping. Brar was taken to another residence where she was tied to a cot and terrorized by Singh, the “fence contractor” and a third man. She was rescued by the police two days later.

When the police arrived at the location where Brar was being held captive there was a van in the driveway. It was registered to Nicholas Victorbalaratnam (the third party suspect). When the police attended Victorbalaratnam’s home they found him and Gunalingam – both were arrested.

When the police arrested Gunalingam they seized a pair of pants that had evidence linking him to the kidnapping of Brar. Brar noted that Gunalingam (shown to her in a lineup) “looked a little bit, a little bit like the guy who knocked at my door first, rang the bell, little bit. Little bit”. With respect to Victorbalaratnam she stated she did not know who he was.

The charges against Victorbalartnam were ultimately withdrawn. Gunalingam sought to cross-examine Brar and others suggesting that Victorbalaratnam was in fact the fence contractor – in other words, that Victorbalaratnam not Gunalingam is responsible for the crime. The defence notes, however, that it will not be “adducing or advancing a third party suspect as part of the defence’s case following the Crown’s case” [para 13]. Given this approach and the fact that the “third party suspect evidence” will be elicited in the Crown’s case Gunalingm contends no application is necessary.

The court rejected this contention:

I disagree with Mr. Leport that he is not advancing a third party suspect application. While defence counsel are to be afforded reasonable latitude in cross examination, in my view, any questions that are specifically designed to suggest to the jury that Mr. Victorbalaratnam committed the crime must satisfy the test set out in the leading decisions of R. v. McMillan (1975), 7 O.R. (2d) 750, 23 C.C.C. (2d) 160 (Ont. C.A.) and R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27 (S.C.C.). I see no distinction between Mr. Lepore adducing evidence as part of his case or eliciting evidence as part of cross-examination.
[…]
Mr. Lepore is not relying on evidence of Mr. Victorbalaratnam’s motive or disposition to commit the crime. He argues that, since the Crown will lead evidence about Mr. Victorbalaratnam, the jury can draw reasonable inferences from the evidence. The bottom line is that he wants to suggest to the jury that the description of the kidnapper and other pieces of evidence likely point to Mr. Victorbalaratnam as the fence contractor and not the accused.
I do not consider Mr. Lepore’s submissions to be persuasive. In my view, there is no evidence that connects Mr. Victorbalaratnam to the offence. [@15, 18-19].

After reviewing the reasons why there was an insufficient evidentiary link the court held that there was therefore no air of reality to the third party suspect assertion.

DM

Objective validity: is that sufficient?

Jerzy Czerniawski was pulled over by the police. The stop was lawfully made to check on the sobriety of Czerniawski. The officer asked if he had any alcoholic beverages. Czerniawski said he had drunk four hours ago. The officer noted glossy and watery eyes, Czerniawski’s face was flush and there was a strong odour of an alcoholic beverage on his breath. The officer then said to Czerniawski that “he would be doing a roadside breath test”. The officer then read his demand from his notebook. Czerniawski was then escorted to the officer’s cruiser. The officer demonstrated the functioning of the approved screening device [ASD] and explained that Czerniawski had to provide a suitable sample of his breath. Czerniawski did so. He failed. He was arrested. It was later determined that his blood alcohol content was over the legal limit. He was charged.

At trial Czerniawski sought to exclude those results arguing that the officer violated his rights under section 8: 2016 ONCJ 505. The trial judge set out the officer’s evidence on this point as follows:

I approached him and asked if he had consumed any alcoholic beverages and at that point he admitted to me he was drinking four hours ago. I observed his eyes to be glossy and watery and his face to be flushed…I detected a strong odour of an alcoholic beverage on his breath. At that point I advised him he would be doing a roadside breath test. I subsequently read him and showed him the approved screening device demand from the front page of my notebook. [para 106]

The trial judge found that there was a breach of section 8. He did so on the basis that there was no evidence that the officer formed a “reasonable suspicion” to make the ASD demand as required by section 254(2).

In the case at bar, there is no evidence that Officer Bell formed a reasonable suspicion that Mr. Czerniawski had alcohol in his body while driving a motor vehicle. Therefore, based on the wording of s. 254 (2) of the Criminal Code and on the jurisprudence cited above, I find that Officer Bell failed to follow the required “statutory pathway” in order to make a legal demand to Mr. Czerniawski that he provide a sample of his breath into the approved screening device. Consequently, the obtaining of Mr. Czerniawski’s breath sample into the ASD was illegal. [Para 119].

The trial judge went on to exclude the results under section 24(2) finding there was a serious breach as the accused was “forced” to provide the roadside sample without the proper legal foundation for doing so.

With respect, this ruling is difficult to accept. First, while the officer did not say the “magic words” – that he formed a reasonable suspicion, it seems apparent that not only did he do so, but that he had more than adequate grounds to do so. Indeed, even if he had not subjectively formed the suspicion that the accused had alcohol in his body, objectively the grounds were more than sufficient. In other words, there was a legal basis upon which to make the demand.

Second, there is no need to say the “magic words”: Deitz, 1993 ABCA 24; Nesbeth, 2008 ONCA 579 @19-20; Harrison, 2012 BCCA 339 @13-14.

Third, even if there was a breach the evidence should not have been excluded. The indicia noted were undoubtedly sufficient to support a suspicion. Therefore, even if the officer did not subjectively understand he had the basis to make the ASD demand, objectively he did. In other words, the demand was objectively lawful. The samples could have been lawfully obtained. In this way the breach is a mere technical failure of the officer to properly articulate (or understand) that he had the legal basis to do what he did – something he was lawfully entitled to do.

DM

Invitation to knock? Depends if you are investigating or searching...

John Rogers backed into another vehicle. He was intoxicated when he did so. Someone noticed. Rogers left the scene but the police were called. The police obtained the licence plate of the vehicle Rogers was driving and went to the address of the registered owner. The officer entered the apartment complex at that address and knocked on the door. Rogers answered. As the officer spoke to Rogers standing at the door he formed grounds to arrest Rogers for impaired driving.

At trial Rogers argued that the officer violated his section 8 rights by approaching his door. The trial judge agreed and excluded the evidence obtained therefrom. The Crown successfully appealed to the summary conviction appeal court; a new trial was ordered. Rogers appealed from that ruling: 2016 SKCA 105.

The Saskatchewan Court of Appeal allowed the appeal and restored the trial judge's conclusion. The court accepted the Crown’s position on the law as follows:

Crown counsel on appeal submits that it is settled law that the police do not exceed the implied licence to knock simply because they are intent on investigating a potential criminal offence. He submits further that a police officer who is looking for information or evidence about a suspected offence, or even about an actual offence, which the police officer has reasonable grounds to believe has been committed, is not conducting a “search” for s. 8 purposes for that reason alone. In support of this proposition, he relies upon LaurinR v Vu1999 BCCA 182 (CanLII), 133 CCC (3d) 481, leave to appeal to SCC refused [1999] SCCA No 330 (QL) [Vu]; R v Grotheim2001 SKCA 116 (CanLII), 161 CCC (3d) 49 [Grotheim]; R v Petri2003 MBCA 1 (CanLII), 171 CCC (3d) 553 [Petri]; and Van Wyk. He states that all of the officers in these cases were looking for information and evidence about possible or actual crimes but none of them violated s. 8 simply because they approached a residence and knocked on the door in an effort to further their investigation. [Para 27].

The court rejected the notion, however, that the implied invitation to knock included situations where the police approach “with the intention of gathering evidence about the state of an occupant’s sobriety” [para 28]. The court acknowledged that the line between “investigation” and “searching” is a difficult one to draw but insisted it must be drawn:

There are numerous other applications of the implied licence to knock principle from all levels of court. Often, the line between when the police intend to investigate a crime and when they intend to secure evidence in relation to it is not easy to perceive; but, in my view, none of the appellate authorities stand for the proposition urged upon us by the Crown in this appeal that the Court can ignore the express purpose of the police in approaching a dwelling house.  [Para 46].

In the end the court noted that the trial judge made the “critical finding” that the officer attended the Rogers’ residence “for the purpose of…obtaining evidence against” him. In such a case the officers exceeded the implied invitation to knock: see Evans, 1996 CanLII 248 (SCC).

This is indeed the critical finding. In Fowler, 2006 NBCA 90 the Court of Appeal noted that the trial judge, in that case, made the critical finding that the officers attended Fowler’s residence for the purpose of communicating with him. That finding resulted in no breach.

Notably, the Ontario Court of Appeal in Lotozky, 2006 CanLII 21041 (ONCA) recognized that the “fact that the police officer intends to pursue an investigation” of impaired driving “does not in my view exceed the bounds of the implied invitation” [Lotozky at para 35]. While the “entry” in that case was onto the driveway, the principles surrounding the implied invitation to knock remain the same. Where the officer had “a legitimate basis” for the entry – the investigation of a criminal offence – the entry was permissible.

The law surrounding this issue is nuanced. The distinctions are fine.  Attending one’s dwelling for the purpose of “investigating” an impaired driving offence is permissible conduct under the implied invitation. Attending for the purpose of “searching” is not.

DM