R. v. Gibbons, 2015 ONCJ 38

Citation: R. v. Gibbons , 2015 ONCJ 38 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — ADAM GIBBONS Before Justice Aston J.

Hall Heard on December 29, 2014 and January 19, 2015 Reasons for Judgment released on January 27, 2015 Matthew Shumka ................................................................................................... for the Crown Jordan Weisz .................................................................................................. for Adam Gibbons HALL J.: INTRODUCTION. [ 1 ] The accused, Adam Gibbons, is charged with one count of over 80 care or control, and one count of impaired care or control. The accused has entered a plea of not guilty.

Counsel for the defence has filed a Charter application seeking to exclude the results of the breath samples taken from the accused. The basis for the application is that the police had no grounds for making a breathalyzer demand.

OVERVIEW OF THE EVIDENCE [ 2 ] On Saturday, 18 January 2014, Detective Constable LeBlanc and Detective Constable Fisher of the Major Crime Unit were patrolling in the area of Danforth Avenue and Danforth Road in an unmarked police vehicle. [ 3 ] Detective Constable LeBlanc noticed an older model Suzuki motor vehicle driving at a high speed, going in the same direction their vehicle was traveling on Danforth Road. The Detective Constable observed that the Suzuki vehicle’s windscreen was heavily damaged.

He noticed as well that the vehicle had crossed the broken white lines on the road, before the vehicle turned right on Pharmacy Avenue. [ 4 ] The police officers followed this Suzuki vehicle. Detective Constable Fisher ran a computer check on this vehicle’s license plate. The results came back indicating the plates were stolen. [ 5 ] The Detective constables wanted to stop the vehicle to investigate further; however, they lost sight of the vehicle. [ 6 ] The Suzuki vehicle was eventually located in parked the driveway beside the home at number 121 Donside.

No one was in the vehicle at that time. [ 7 ] On January 19, 2014 approximately two minutes after 12:00 a.m., a male exited the address and walked towards the parked motor vehicle. The detective constables were maintaining surveillance on the vehicle. The male open the driver’s side door of the vehicle and sat in the driver’s seat. [ 8 ] Detective Constable LeBlanc approach the vehicle removed the male from the vehicle and arrested him for possession of stolen property. The male was placed on the ground and searched.

A Suzuki motor vehicle key was found in his right hand. [ 9 ] Detective Constable LeBlanc testified that the male said a couple of times, “sorry sir,” and he was able to detect an odour of alcohol coming from the male’s breath; additionally he believed the male’s speech was slurred. [ 10 ] Detective Constable LeBlanc believed the male was committing the offence of care or control of the vehicle while in a state of impairment.

As a result of this belief the male was arrested and a breathalyzer demand was made. [ 11 ] The male was transported to the police division to facilitate the demand to provide suitable breath samples.

ISSUE [12] In this case there is only one issue for me to determine: was there a

section 8 Charter breach if so, should the tests resultsbe excluded pursuant to section 24(2) of the Charter. [13] Mr. Weisz for the defence submits that the arresting officer did not have reasonable and probable grounds to arrest Mr.Gibbons for impaired care or control. The police officer who made the demand pursuant to section 254(3) did not have the requisitegrounds to make the demand. [14] Mr. Weisz further submits that the breath sample tests results were obtained by means of an unreasonable search andseizure, contrary to

section 8 of the Charter. Mr. Weisz also urged me, to apply the factors set out in R. v. Grant, 2009 SCC 32 ,[2009] 2 S.C.R. 353 and exclude the breath tests results pursuant to section 24(2) of the Charter. [15] Mr. Shumka on behalf of the Crown submits that the Constable LeBlanc failed to comply with section 254(3) of theCriminal Code. Mr. Shumka agreed that the applicant’s

section 8 Charter rights have been breached. Detective Constable LeBlanc actedwithout reasonable and probable grounds; however; his position is that exclusion of the breath sample pursuant to section 24(2) is not theappropriate remedy. [16] According to Mr. Shumka the breath samples are highly reliable evidence that were obtained through a minimallyintrusive procedure. Impaired driving is a persistent and serious societal concern. The detective constable acted in good faith, believedthat he had to grounds to make the demand in accordance with the Charter.

These factors when balance mitigate in favor of admission ofthe evidence. [17] I agree with the parties, that given the evidence of Detective Constable LeBlanc –that he believed that the accused hadslurred speech and an odour of alcohol on his breath – is not sufficient to form reasonable and probable grounds to arrest and make thedemand for the breath samples pursuant section 254(3) of the Criminal Code. [18] The demand was therefore unlawful and the accused’s constitutional right to be secure against unreasonable search andseizure under the

section 8 of the Charter was breached. [19] I will now turn to the section 24(2) analysis. In Grant, the Supreme Court of Canada directs that I must consider theseriousness of breach of the Charter right by the state conduct, the impact of the breach on the Charter-protected interests of the accusedand societies interests in the adjudication the case on its merits. 1. Seriousness of the Charter-infringing State Conduct. [20] Detective Constable LeBlanc, was arresting the accused for the offence of possession of stolen property when during thatarrest he detected on odour of alcohol on the accused breath.

The mere smell of alcohol signifies only consumption. Detective ConstableLeBlanc noted as well what he described as the accused slurred speech. Detective Constable LeBlanc is unfamiliar with the speechpattern of the accused.

It would be pure speculation to conclude the accused’s speech was affected by the alcohol. [21] Detective Constable LeBlanc’s evidence, with respect to the drinking and driving scheme of the Criminal Code revealsthat, despite his number of years in the police service, he is substantially inexperience with this area of law enforcement. [22] Detective Constable LeBlanc testified that he believed the accused’s to be impaired, opposed to his ability to operate wasimpaired. It was this belief that led him to have arrested the accused and made the breathalyzer demand.

Detective Constable LeBlancmight have been acting in good faith; however, I find his evidence established no grounds for the arrest of the accused and to make thedemand for a breath sample under section 254(3). As was stated in Grant at paragraph 75. “Good faith on the part of the police would also reduce the need for the court to disassociate itself from the police conduct.

However,ignorance of the Charter standards must not be rewarded or encouraged and negligence or willful blindness cannot be equated with goodfaith” [23] I find it that Detective Constable LeBlanc ought to have been aware of the standard that is required for making abreathalyzer demand. In the circumstances of this case, the arrest of the accused fell below the requisite standard. [24] In R. v.

Khan, [2010] OJ No 3861, at paragraph 22, Justice Lipson noted “the breach here is neither technical nor trivial.It is serious because it involves the detention and arrest of the driver without the requisite statutory or constitutional grounds. To admitevidence obtained by the police conduct here would leave the public to conclude that the court implicitly condones such conduct,thereby undermining respect for the administration of justice.” I have arrived at the same conclusion with respect to this case. 2.

The Impact of the Charter-protected Interests of the Accused [25] Justice Lipson in Khan dealt with the second prong of Grant analysis at paragraph 23, where he stated the following: thisassessment calls for an evaluation of the extent to which breach actually undermined the interests protected by the right infringed. I ammindful of the observation made in Grant that the breath sample collection is minimally intrusive. However, the impact of the breachgoes well beyond taking the test. In my view, this breach involved a significant interference with the accused’s liberty. [26] Not unlike Mr.

Khan, the accused in this case was arrested, handcuffed, placed in the back of a police car and transportedthe police station where he was detained for close to 12 hours. This of course is to facilitate the taking breath of the samples. [27] I agree with this analysis for the same reasons stated by Justice Lipson. I adopt this line of reasoning.

[ 28 ] In balancing these factors: seriousness of the breach and its impact on the Charter -protected right of the accused, weighs in favor of exclusion of the evidence of the breath sample test results. 3. The effect of admitting the evidence on the public interest in having a case adjudicated on its merits. [ 29 ] Drinking and driving has caused significant trauma and harm to our society. Society has a strong interest in having these cases adjudicated on their merits. Grant , at paragraph 110 , points out this line of inquiry will usually favor admission in cases involving the samples.

For example, breath test results are generally reliable and the risk of error inherent in depriving the trier of fact the evidence may well tip the balance in favor of admission. This prong of the Grant analysis favors admission of the breath sample evidence. [ 30 ] This must be balanced with society solid interest in having the justice system operates properly, especially when the deprivation accused liberty is at stake. I share the view of Ducharme, J. in R. v. Au-Yeung

(1994) O.J. No. 1579 at paragraph 69 , he notes: In my view, the public should expect that when they are stopped by the police their Charter rights will be respected. Certainly, the public must have confidence in the competence of the police and in the fact they will not detained or arrest drivers without the requisite grounds. [ 31 ] In this case the accused never started the engine of the motor vehicle and I found the indicia of impairment to be minimal if not non-existent. The accused was polite and respectful to the police officers.

He was detained for close to 12 hours. [ 32 ] In balancing the above factors particularly the seriousness of the breach, the deprivation of liberty, and the factual circumstances of this case. I am of the view that the application must be granted. [ 33 ] As a result the evidence of the breath samples will be excluded under section 24(2) of the Charter. Released: January 27, 2015 Signed: “Justice Hall”