MCLNugget: Notaro ONCA

R v Notaro, 2018 ONCA 449  

The Issue

Does the failure by an officer to consider the presence of residual mouth alcohol make it unreasonable for the officer to rely on an ASD fail result in forming reasonable and probable grounds for an arrest and evidential breath demand?

The Answer

The answer is no. “There can be reasonable grounds even where an officer fails to consider the presence of residual mouth alcohol…The existence of reasonable and probable grounds does not turn upon whether an arresting officer has considered the possibility of residual mouth alcohol or its effects” [@22 and 23].

First, “it is settled law that arresting officers do not have a duty to inquire into the presence of residual mouth alcohol; it makes no sense to treat a failure to consider something that there is no duty to inquire about to be a Charter violation” [@24].

Second, “the reasonable and probable grounds test does not turn on the quality of the inquiry, such as whether the arresting officer asked herself all of the questions that a prudent person would. It turns, instead, on whether the arresting officer subjectively has an honest belief that the suspect has committed an offence and whether, objectively, there are reasonable grounds for that belief” [@25].

The Fine Print

First, there is not duty to inquire into the presence of residual mouth alcohol and failure to ask about last drink is not fatal: “Reasonable and probable grounds is determined, instead, according to the subjective belief of the arresting officer, and whether, on the information known to the officer, that belief is reasonable” [@33].

Second, “the effect of the law relating to the objective component of the reasonable grounds test can be put this way”:

  • If the information known to an arresting officer about a suspect’s residual mouth alcohol would make it unreasonable for the officer to rely on the accuracy of an ASD fail result, reasonable and probable grounds will not be established, whether or not the arresting officer turned her mind to the presence or effect of residual mouth alcohol.
  • If it is reasonable for the arresting officer to rely on an ASD fail result based on the information known to her, then the failure of the arresting officer to turn her mind to the presence or effect of residual mouth alcohol is immaterial.


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]. 


Competence of Counsel: to be presumed or proven?

William Fogarty was driving his Crown Victoria on a highway outside of Antigonish; he was impaired. He collided head on with a Ford Mustang. The two young occupants of the Mustand, Kory Mattie and Nicholas Landry, were killed. He was convicted. He appealed. His appeal was dismissed: 2015 NSCA 6. His appeals raised an interesting issue related to section 10(b) and change in circumstances.

Police responded to the scene. As they dealt with Fogarty the police noted some “concerning” things including his demeanour and glassy eyes, yet there was no odour of alcohol detected [@7]. Fogarty admitted that he taken methadone earlier that day as part of his drug recovery program. An ambulance attended the scene and ultimately Fogarty was transported to the hospital. En route the officers observed him for signs of impairment and overheard him talking to the paramedics about his history of drug use (something which he had conveyed to the police as well). The officers also obtained information that Fogarty had been spotted, before the crash, driving erratically.

The officers formed the grounds that Fogarty was impaired by a drug and while in the ambulance, the officers placed him under arrest and read the drug recognition demand to him under section 254(3.1). Notably, at this point, the officers knew and had informed Fogarty that one of the young men had died as a result of his injuries.

Sometime later, at the hospital, after Fogarty had been cleared by medical personnel, the officer advised him of his rights to counsel. Fogarty subsequently spoke to a lawyer – over two separate calls, Fogarty would have consulted with his counsel for about 14 minutes [@14].

The DRE officer then conducted the DRE examination. At the conclusion the officer determined that Fogarty was impaired and consequently read the 254(3.4) demand for a biological sample. Fogarty replied “oh yeah, I understand that” [@18]. Fogarty did not request and was not given further access to counsel after the DRE tests and before the biological sample was taken.

At trial Fogarty sought to exclude the evidence of the biological; he argued “that the failure to provide him with an additional opportunity to consult counsel, after the demand for his blood sample, violated his right to counsel under s. 10(b)” [@29].

Fogarty was convicted; he was sentenced to five years and nineteen days jail. He appealed his conviction.

The issue on appeal was whether the “failure to provide him with an opportunity to re-consult counsel, after the demand for his blood sample” violated section 10(b) [@34]. More precisely, this argument highlighted two poitns. First, that the police should have told him, at the time of the initial demand, that a biological sample could be taken; and second, that the court should not infer that counsel was aware of this and would have advised the accused accordingly.

The court dismissed the appeal.

The Court began its assessment of the issue with a review of R v Sinclair, 2010 SCC 35 and the Supreme Court’s comments on when it is necessary to permit a detainee to re-consult with counsel.  The Court noted that “the opportunity to re-consult” arises “only where there is an objectively ascertainable change of circumstances” [@41].

With respect to the first point (whether there was a change in circumstances) the court offered the following:

The DRE and blood demand are not disjunctive investigative techniques.  Rather, the DRE culminates in the fluids demand.  That linear progression is apparent from the plain words of ss. 254(3.1) and (3.4)… [@48].

With respect to the second point (the content of the legal advice) the Court offered the following:

There was no evidence of the content of the legal advice given to Mr. Fogarty, or that his counsel acted incompetently.  There was no challenge to the competency of his counsel. The judge’s view was that, in those circumstances, Mr. Fogarty’s counsel is assumed to have acted competently.  The judge concluded competent counsel would be aware, and advise that the DRE under s. 254(3.1) invokes a potential blood demand under s. 254(3.4). Consequently, despite that Mr. Fogarty initially had been unaware of a potential blood demand, his counsel would canvass that possibility in his pre-DRE advice to Mr. Fogarty. [@44].

The court dismissed the appeal.

Fogarty is a helpful case for a couple of reasons. First, it illustrates, quite properly, the courts can and should presume counsel provide competent advice to their clients absent evidence to the contrary. Second, it highlights the difference between a linear progression and new investigation.  

Fogarty should also be seen as a success for the DRE provisions and program in increasing the ability of the criminal justice system to detect and prosecute drug impaired driving.


New & Notable: Possibly is not Probably

Yates’ driving drew the attention of Saskatoon Police Services Cst. Mudasia. Yates was observed speeding some 20-30 km/hr over the speed limit and abruptly veering between lanes.

Cst Mudasia pulled Yates over and approached the driver’s side window whereupon he noticed that the vehicle smelled like alcohol and that Yates had bloodshot, glossy eyes. Cst. Mudasia issued the roadside demand. Yates complied and the Approved Screening Device (ASD) registered a ‘fail’. Yates was arrested, cautioned, read his rights and the Intoxylizer demand and transported to the police station. 

Both Intoxylizer samples revealed that Yates had a criminal blood alcohol concentration when he was driving. The trial judge excluded those results pursuant to section 24(2) of the Charter on the basis that Cst. Mudasia breached Yates’ section 8 and 9 Charter rights.

The trial judge concluded that the Cst. Mudasia did not have the requisite reasonable suspicion for the ASD demand. The trial judge held that although she accepted the officer’s evidence about an odour of alcohol emanating from Yates’ vehicle she could not be sure that the odour was emanating from Yates’ breath. The trial judge found that because the officer could not remember if anyone was present in the vehicle with Yates, the source of the odour of alcohol was undetermined. The Crown unsuccessfully appealed to the Saskatchewan Court of Queen’s Bench. The Crown then appealed to the Saskatchewan Court of Appeal: R v Yates, 2014 SKCA 52.

The Saskatchewan Court of Appeal held that:

(…) the appeal court judge and the trial judge both misinterpreted the evidentiary and persuasive burden imposed on the Crown by requiring the Crown to prove that the respondent probably had alcohol in his body; whereas the standard of reasonable suspicion only requires that the Crown prove a reasonable suspicion that a driver possibly had alcohol in his or her body. Specifically, the trial judge found the threshold of reasonable suspicion was not met because the Crown had failed to adduce sufficient evidence to eliminate possible sources of odour of beverage alcohol, which emanated from the respondent’s vehicle, other that the respondent. (…)

In my respectful view, the requirement that an investigating officer must have direct proof of a driver having alcohol in his or her body in order to found a reasonable suspicion that the driver has alcohol in his or her body is inconsistent with the prescribed standard and the requirements of s.254(2)(b) [paras 37-38].

Both the trial judge and summary conviction appeal judge emphasized the Crown’s failure to establish that Yates was alone in the vehicle. The Court of Appeal gave short shrift to this argument noting that:

[t]here is no onus on the Crown to adduce evidence to support or disprove the alternative scenarios of the defence as to the possible source of the odour of beverage alcohol . The Crown need only proved that that the inferences drawn by the investigating officer are rational and reliable on the basis of the evidence it has adduced and that, on the whole of it, facts known to the investigating officer and inferences of fact drawn by the investigating officer reasonably support a suspicion that the accused had alcohol in his or her body.

By holding the Crown to dispel speculation that other persons were in the vehicle or to definitively show that the respondent was the source (or was the probable source) of the odour of beverage alcohol, the trial court and the appeal court mistakenly elevated the evidentiary and persuasive burden imposed on the Crown and held the Crown to establish the validity of the s. 254(2)(b) demand on a standard greater than “reasonable suspicion” [paras 45-46].

Despite finding no Charter breaches, the Court of Appeal declined to enter a conviction and instead ordered a new trial. 


New & Notable: Conflating RPG and Proof Beyond a Reasonable Doubt

Early one summer morning, Justin Churko was seen by police driving into the parking lot of a bar in Yorkton, Saskatchewan. The officer noticed that Churko’s way of driving and his way of stopping were abnormal and that he was unsteady on his feet when he stepped out of his car. When the officer detected the odour of alcohol on Churko’s breath and noted that his eyes were bloodshot, the officer arrested Mr. Churko. Pursuant to a breath demand, breath samples were obtained which resulted in readings of .150 and .130. He was ultimately charges with impaired and over 80.

At trial, the defence alleged that Mr. Churko’s Charter rights had been violated. The defence asserted that while the officer testified that he had RPG to arrest Mr. Churko, the fact disclosed by the officer amount only to a reasonable suspicion and not the required reasonable and probable grounds to believe the accused was impaired and therefore arrest him. The trial judge accepted the defence position and acquitted the accused.

The summary conviction appeal court judge overturned the acquittal and entered a conviction against Mr. Churko as he determined that reasonable and probable grounds did exist.

On appeal to the Saskatchewan Court of Appeal, the found that there were no grounds to interfere with the decision of the summary conviction appeal court: R. v. Churko, 2014 SKCA 41.

The panel of the Saskatchewan Court of Appeal interestingly pointed out the significant differences between the RPG assessment required by the police officer and the standard of proof reserved for a trial on the merit and where the learned trial judge erred in the application of the RPG standard:

Whether the facts as a whole establish reasonable and probable grounds is a question of law. The principles surrounding such a determination has most recently been explained in R. v. Gunn, 2012 SKCA 80 (CanLII), 2012 SKCA 80, [2013] 1 W.W.R. 495. The reasonableness of the police officer’s belief must be considered by the trial court from the vantage point of whether the observations and circumstances articulated by the officer are rationally capable of supporting the inference of impairment which is drawn by the officer; however, the Crown does not have to prove the inferences drawn were true or even accurate. In other words, the factors articulated by the arresting officer need not prove the accused was actually impaired. This is so because that is the standard of proof reserved for a trial on the merits, a proof beyond a reasonable doubt.

In this case, the observations and circumstances as a whole articulated by the police officer and accepted by both the trial judge and the summary conviction appeal court judge are rationally capable of establishing an objective belief of impairment and therefore reasonable and probable grounds. The trial judge erred in the application of the burden on the Crown to establish reasonable and probable grounds and appeared to require that the facts articulated by the police officer “would reasonably lead to a conclusion that this man was driving while impaired by alcohol [emphasis added]” (para. 14). The summary conviction appeal court judge applied the correct standard of review and correctly concluded that the trial judge’s determination of lack of reasonable and probable grounds was in error [¶ 5-6] [Emphasis added].


New & Notable: It is practicable to properly set up the Intoxilzyer

Blake Cote was convicted of driving with a blood alcohol concentration “over 80”. Cote was convicted at trial; he appealed.

He argued that the trial judge erred in law by “failing to consider the evidence as to unexplained delay on the part of the police in taking” samples of his breath. Specifically, on appeal, Cote urged Daley J, sitting as a summary conviction appeal court, to find that the trial judge erred in his consideration of the period of time between the time when the breath technician arrived at the station and the time when the technician began to change the alcohol standard solution in the Intoxilyzer. His appeal was dismissed: 2012 ONSC 5247.

Cote was stopped by police at 12:54 after he was observed running a stop sign. The officer who pulled him over formed a suspicion that Cote had consumed alcohol and asked that a roadside screening device be brought to the scene. The device arrived at 1:01 and Cote registered a fail.

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New & Notable: Recognizing the need for a real world Charter...

Tiffany MacMillan was drunk. She was driving a boat. She killed someone. The events that ensued thereafter and the actions of the police resulted in a violation of her rights under section 10(b) of the Charter. The trial judge thought there were also breaches of sections 8 and 9 as well. The trial judge also thought the breaches were so serious that the evidence should be excluded. The trial judge was wrong on both accounts: 2013 ONCA 109.


MacMillan was driving a boat. She had a significant amount of alcohol in her system when she was doing so – her BAC some 3 hours later was 170 mg of alcohol/100 ml of blood.

As a result of the incident the OPP were called. Cst Ariss arrived on scene around 5:30 pm. Upon arrival Ariss noted paramedics on scene and a body covered with a sheet on the shore. There was also a young woman, MacMillan, siting at the end of the dock; she was crying and appeared distraught.

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New & Notable: Affirming necessity to point to evidence to rebut presumption of voluntary consumption

Concerned citizens of Parry Sound called police to report Mark Jensen’s erratic driving and then continued to follow him.  When police arrived at the dock where Jensen had stopped, they found him passed out behind the wheel.  He reeked of alcohol and was clearly impaired.  His blood alcohol content was .29.  The Crown’s case was admitted.  Jensen testified and argued that he was in a state of non-insane automatism while he was driving.  He was despondent over his brother’s death, had been drinking heavily in the preceding weeks and was confused.  He had no recollection of purchasing or drinking the alcohol found in his system on the night in question.  The trial judge rejected the defence of non-insane automatism because no expert evidence was called but went on to acquit Jensen on the basis that he had a reasonable doubt as to whether Jensen had the requisite mens rea for the offences.  The Summary Conviction Appeal judge granted the Crown’s appeal and found that the trial judge erred in law because there was no evidentiary basis upon which the presumption that the accused consumed alcohol voluntarily before driving could be rebutted.  A conviction was substituted because the evidence, properly viewed, was overwhelming: 2012 ONSC 3325. The Ontario Court of Appeal denied leave to appeal: 2012 ONCA 878.
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New & Notable: Inherent risks almost invariably will be realistic risks

Donald Boudreault was impaired. He was sitting in his car. He was arrested and charged. He was acquitted. That acquittal was upheld by the Supreme Court – even if the Court appears to have been less than impressed with the acquittal: 2012 SCC 56.


Boudreault was drinking at a bar. After drinking he went to Danye Dubois’ home. Dubois had driven Boudreault to her home. After being there some time Boudreault asked Dubois to call a cab for him, she did.


Boudreault and Dubois waited, for a significant period of time, for a taxi and it had not yet arrived. Dubois apparently told Boudreault to go outside, as she wanted to go to sleep. It was cold outside. Boudreault decided to get in his car to wait for the taxi. 

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New & Notable: One high watermark leads to another...

The afternoon of June 21, 2009 was a fateful one for Lawrence Bush and his three friends.  Bush drank, did drugs, drove and, as a result, killed his friend.  For this, he received a 12 year prison sentence.  He thought that was too high.  The Ontario Court of Appeal disagreed and upheld the highest sentence in the land to date for impaired driving and criminal negligence causing death: 2012 ONCA 743

The facts were “egregious”; the driving was “outrageous.”  Bush, on bail for an impaired driving charge, had been legally barred from driving since 1985 and was convicted 10 days earlier, for the 8th time, of driving while his license was suspended.  Despite this, he chose to drive a car, in the middle of the day, down country roads, for over an hour at speeds of 170 km/hr, all the while drinking and continuing to take narcotics.  The sheer stupidity included driving at 110 km/hr with Bruno, a passenger who was also drunk and high, “hood surfing” on the hood of the car.  The car ended up in the ditch.  Unfortunately for all, it didn’t stay there.

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