2020 QCCQ 376, 2020 QCCQ 376

R. c. Duval 2020 QCCQ 376 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF BEDFORD LOCALITY OF COWANSVILLE "Criminal and Penal Division" No.: 455-01-016387-189 DATE: February 5, 2020 ______________________________________________________________________ PRESIDING: THE HONOURABLE SERGE CHAMPOUX, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v.

MORGAN DUVAL Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Morgan Duval is facing the following charge: 1. On or about September 15, 2018, in Lac-Brome, district of Bedford, did operate a motor vehicle having consumed alcohol in such a quantity that the proportion thereof in his blood exceeded 80 milligrams of alcohol in 100 milliliters of blood, committing thereby the offence punishable on

summary conviction provided by section 253(1) b) - 255(1) of the Criminal Code . [ 2 ] In his defence, the accused presented an application stating that some of his fundamental rights were violated. The parties agree that the outcome of this application will decide the case. [ 3 ] If the application is granted, the Crown will be deprived of essential evidence and an acquittal must be entered.

If, on the contrary, the application is dismissed, the accused has no other defence and he will be convicted. [ 4 ] Regardless of what the heading of Morgan Duval’s application says, he faults the conduct of the police officers during the night of September 15, 2018, alleging that they ultimately arrested and detained him without reasonable grounds, thereby violating

section 9 of the Canadian Charter of Rights and Freedoms [1] (the “ Charter ”). In view of this unlawful detention, the search he was subsequently subjected to would therefore be arbitrary. [2] [ 5 ] BACKGROUND FACTS [ 6 ] Police Officers Morin and Benoit were patrolling in the village of Knowlton during the night of September 15, 2018. At approximately 3 a.m., when there was practically no traffic, they noticed the accused’s vehicle, travelling normally towards them. [ 7 ] They decided to stop the vehicle to verify the state of the driver. [ 8 ] While stopping, the driver made contact with the sidewalk lightly.

As he approached the driver, Officer Morin noted that his eyes were red and glassy and that he was nervous. The officers asked the driver if he had consumed alcohol, to which the accused Duval, who was driving, answered that he had consumed “a couple of beers” or “a few beers.” [ 9 ] Officer Morin asked the accused to exit his vehicle for the purpose of administering a test using an approved screening device (“ASD”). The accused complied and a failing result was obtained.

The accused was subsequently taken to the nearest police station, where results of 113 and 109 milligrams of alcohol in 100 millilitres of blood were obtained. [3] [ 10 ] A few other elements arise from the police officers’ testimony. First, the entry in the police report that the accused’s vehicle was first seen near 430 chemin Knowlton and that he was stopped [ translation ] “in front” of 430 chemin Knowlton seems a little less certain. If, as they say, the police officers passed the accused as he was travelling in the opposite direction, they would have had to make a U-turn.

Clearly, even if they followed the accused’s vehicle for barely 50 metres, it would be somewhat surprising for everything to have taken place in front of the same address. In cross-examination, Officer Benoit was in fact not so categorical that they were moving at all. [ 11 ] The second element concerns Officer Morin’s note that he and the accused had a discussion about the impact of a [ translation ]

“mint” in the mouth of a person about to blow into an alcohol screening device. This note appears in his report, and he indicated that this discussion took place at the police station, after the ASD was used. During his testimony, he noted that a [ translation ] “mint” would not have any effect on the result obtained by the device. Officer Benoit does not remember this discussion. [ 12 ] The third element concerns a small pocketknife. It is noted that the officer seized it temporarily during the intervention and gave it back to the accused after it was done.

Officer Morin, who spoke about it, was unaware of the circumstances in which he or his colleague came to be in possession of the object. Officer Benoit does not remember this event either, beyond what is indicated in the report. [ 13 ] The fourth element is the fact that, after the police operation, the officers realized that the ASD’s calibration had not been renewed. My understanding is that it was only after the intervention, as they were filling out the usage log, that they noticed that the calibration had expired earlier the previous day. [ 14 ] The fifth element also concerns the usage log.

Both Officer Benoit and Officer Morin said they filled it out. Officer Morin’s badge number is indicated, but Officer Benoit said that it is his writing and that he entered his colleague’s badge number because he was the one who used the ASD. [ 15 ] The sixth element is that the two police officers acknowledge being aware of the recommended 15-minute waiting period after the last alcoholic beverage is consumed before requiring a person to blow into an ASD, and that there should also be a delay of 5 minutes after a person has been smoking. [ 16 ] Morgan Duval also testified.

He explained that he was stopped just a few minutes after leaving a local bar. Just before leaving, he consumed a shooter. He said that he drank two pints of beer over the course of the evening. He claims to have been perfectly capable of driving and that he was taking a friend home. [ 17 ] According to him, the police officers were stopped in a schoolyard on chemin Knowlton until he passed them.

He acknowledges driving by them and being stopped a short distance farther, in front of 430 chemin Knowlton. [ 18 ] He says he had a Halls brand cough lozenge in his mouth at that time, which he took as he was leaving the bar. The police officer who stopped him did not mention the lozenge at that time. [ 19 ] When he blew into the ASD, he failed the test, which surprised him greatly in view of his condition. He was arrested and asked to get in the police car. He cooperated fully.

In fact, so much so, he says, that before getting in the car, the officers conducted a pat-down search but did not find anything on him. He showed them his box of lozenges and a small pocketknife he had on him. The officer let him keep his lozenges but took the pocketknife during the operation and gave it back to him later that night. [ 20 ] As for his alcohol consumption, he says he told them that he had “a few” without mentioning what he was referring to.

The police officers did not ask him what he drank or when he finished his last drink. [ 21 ] He says he took his second lozenge at the police station without anyone saying anything about it. He took it upon arriving at the police station.

He acknowledges that he did not explicitly mention that he had consumed a shooter; his answer remained general. [ 22 ] This summarizes the evidence. [ 23 ] ANALYSIS AND DECISION [ 24 ] The application to be decided essentially alleges that the police officers did not have reasonable grounds to arrest the accused and order him to follow them to the local detachment to take breath samples from him. [ 25 ] If in fact the police officers had no reason to arrest Morgan Duval, the order given to blow into the breathalyzer was invalid, and the result of this “search” would have been obtained in violation of the accused’s right to be secure against an unlawful search. [ 26 ] To properly situate the debate, it is necessary to say that the police officers did not need any specific reason to stop the accused’s vehicle to verify his condition to drive. [4] [ 27 ] Moreover, once the accused was stopped, the request that he submit to an ASD test further to the answers he gave that he had consumed alcohol also appears lawful in principle. [5] [ 28 ] It seems to me that the case law submitted by both parties is in fact quite consistent and entirely reconcilable. [ 29 ] It indicates that failing an ASD test does not necessarily constitute reasonable grounds to believe that the accused committed the offence of driving with a blood alcohol level exceeding the legal limit. [6] [ 30 ] However, in cases where the test was properly administered, this factor is clearly relevant, and even significant, in making a decision in this regard. [7] In addition, to consider the test properly administered, it is not essential for the police officers to have asked when the last drink was consumed.

That said, attempting to obtain this information is not prohibited. [ 31 ] On the other hand, the mere fact that the ASD’s calibration was expired does not automatically mean that the results are not reliable or that the police officers were necessarily wrong in relying on them. [8] [ 32 ] It seems to me, however, that while these factors may not be sufficient when considered in isolation, when considered as a whole, we may certainly conclude otherwise. [9] [ 33 ] As the case law referred to above indicates, while the failure of a properly administered ASD test may support the conclusion that the offence was committed, and while the absence of calibration of the device may be minimized, the question that must be

answered remains the same: considered globally and as a whole, did the police officers have reasonable and probable grounds to believe that the offence had been committed at the time of the arrest, all these things being considered both objectively and suggestively? [ 34 ] It is at this level that the police operation involving Morgan Duval appears far from convincing. [ 35 ] The accused’s conduct, in terms of both the operation of his vehicle and his behaviour at all times during his interaction with the police officers, showed no signs of impairment or intoxication, even to a small degree, by alcohol or otherwise.

His conduct, his speech, his diction and his posture were all normal; nothing was noted in this regard. Of course he smelled like alcohol, but he admitted having consumed some. [ 36 ] While it has been clearly established that there is no duty imposed on police officers to question an accused on his or her alcohol consumption, [10] there is nothing, on the contrary, preventing police officers from doing so.

This is perhaps especially true in the context of person who otherwise shows no signs of intoxication. [ 37 ] Again, while it has been established that the failure to calibrate an ASD is not fatal, it is certainly desirable that the test be performed correctly. I could be more sympathetic to the situation of a police officer who is not in possession of an ASD and has a colleague bring one to him or her and then uses it without verifying the validity of the calibration.

The situation where a police officer acknowledges that he should have verified its calibration himself but did not do so is less convincing. [ 38 ] Here, both officers acknowledge that, at the start of their shift, they should have ensured that the ASD was calibrated, which takes only a few minutes.

No explanation was provided to justify this failure. [ 39 ] Nor can I ignore the testimony of the accused, who said he had a cough lozenge in his mouth when he blew into the ASD and that he had consumed another one before the breathalyzer test. [ 40 ] This statement seems surprising but was nevertheless accepted at least in part by the police officers, at least one of whom admitted that there was a discussion concerning [ translation ] “mints.” [ 41 ] It should be recalled that, between the version of the officers and that of Morgan Duval, it is not unreasonable to find that the latter ultimately sheds more credible light on the conduct of the operation than the version of the police officers does.

I refer specifically to the place where the officers were – or were not – parked, the issue of the lozenges and that of the pocketknife. [ 42 ] The manner in which the ASD usage log was filled out is also not an example of precision or clarity.

Both officers said they filled it out, including one who said he did so for the other. [ 43 ] Without repeating what I wrote above, and for all of these reasons, my conclusion is to accept the accused’s version of the events that occurred during the night of September 15, 2018. [ 44 ] In so doing, it appears to me that the overall evidence that emerges is that the test administered with the ASD could not objectively allow the police officers to develop a sincere belief in the reliability of the results obtained. [ 45 ] That being the case, the arrest was arbitrary and unlawful.

The breath samples were therefore not obtained during a lawful arrest and are thus themselves unlawful. [ 46 ] Should the evidence gathered in these circumstances be excluded under section 24(2) of the Canadian Charter of Rights and Freedoms ? [11] [ 47 ] Without undertaking a detailed application of this provision, it seems to me that when the courts have been asked to analyze the issue in similar cases, they have generally found that the evidence should be excluded. [12] [ 48 ] Accordingly, the application is GRANTED and in view of this conclusion, the accused is ACQUITTED of the charge against him. __________________________________ Serge Champoux, J.C.Q.

Mtre Cassandre Hamel Crown prosecutor Mtre Alexandre Caissie Counsel for the accused Date of hearing: November 27, 2019