2014 QCCQ 9411, 2014 QCCQ 9411

R. c. Grand-Louis 2014 QCCQ 9411 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF LONGUEUIL TOWN OF LONGUEUIL Criminal and Penal Division No: 505-01-097590-117 DATE: August 20 th , 2014 ______________________________________________________________________ BY THE HONOURABLE STÉPHANE GODRI, C.Q.J. ______________________________________________________________________ HER MAJESTY THE QUEEN Respondent v.

STEVEN GRAND-LOUIS Petitioner ______________________________________________________________________ DECISION ON A MOTION TO EXCLUDE EVIDENCE ______________________________________________________________________ [ 1 ] The accused, Steven Grand-Louis, is charged with having driven a motor vehicle while his ability to do so was impaired by alcohol or a drug, and having refused to comply with a breath demand made to him by a peace officer. [ 2 ] The events on which these charges are founded, took place on January 15 th 2011. [ 3 ] At the opening of his trial, a motion to exclude evidence was presented by the accused, based on section 24(2) of the Canadian charter of rights and freedoms .

Alleged are violations of

section 9 of the charter, which provides against illegal detention and reads as follows : 9.

Everyone has the right not to be arbitrarily detained or imprisoned. [ 4 ] Although the original written petition included the initial interception and detention of the accused, at trial, his attorney limited her arguments to the absence of reasonable and probable grounds on the part of the arresting officer in the file. [ 5 ] The crown argues that the grounds for the arrest were sufficient. [ 6 ] The only witness heard on the motion was officer McComber of the Kahnawake police force. [ 7 ] He explains that on the night in question, he received and initial call at around 23 h 45, concerning a hit and run involving a parked car.

His investigation of that matter led him to suspect that the accused was the driver and that he had left the scene of the accident. [ 8 ] At around 00 h 50, he received a call from a local bar. The caller wanted to advised the police that the accused was leaving the establishment, drunk and at the wheel of a white Ford F-150. [ 9 ] Officer McComber intercepted the vehicle a few minutes later. The accused was driving the vehicle at that time.

The officer indicated to him, that he was being intercepted because a call had come in advising the police that he was intoxicated and driving. [ 10 ] At that time, the officer noticed that the accused had red glossy eyes, and that his breath smelled of alcohol. He also noticed that there was shattered glass on the bumper of the F-150 and scuff marks at the back of the truck. [ 11 ] He asked the accused to exit his vehicle and follow him to the rear and showed him the scuff marks and the shattered glass on the bumper. The accused exited the car normally, and had no trouble walking to the back of the car.

His speech was also normal. [ 12 ] He then asked the accused to follow him to the rear of the patrol car, to perform a sobriety test. [ 13 ] After finding a suitable area to administer the test, officer McComber explained the test to the accused and demonstrated it. He was to walk 12 steps heel to toe in a straight line with his arms out to the side, turn around on himself and walk 12 steps back to his original starting point. [ 14 ] Since the accused swayed from left to right slowly with each step for the duration of the test, the officer concluded that he failed.

The test lasted less than two minutes. [ 15 ] On cross-examination, officer McComber admitted that he had received no formal training for administering such a test at the

time of the events. He had only observed other officers administer it. [ 16 ] He also admitted that the failure of the test was an important part of his reasonable and probable grounds to arrest the accused.

Without it, he only had reasonable suspicions, this based on the accident, the call from the bar, the smell of alcohol coming from the accused's breath and his glossy eyes. [ 17 ] The accused's main argument on the petition is directly related to the sobriety test. [ 18 ] By way of his attorney, he submits that the sole testimony of officer McComber is insufficient to conclude as to the probative value that can be given to the test as it was administered by him. [ 19 ] In support of this argument, three previous Court of Quebec decisions were submitted to this Court. R. v.

Bélanger [1] a decision of madam justice Lucille Chabot from the district of Abitibi in 2008, R. v. Lefebvre [2] from 2010 a decision from the honourable Johanne Roy of Chicoutimi and finally R. v.

Kevin Hamel Lanctôt [3] , a decision from my colleague justice Jean-Louis Lemay of Quebec rendered in January of 2013. [ 20 ] All these decisions question the probative value of the different sobriety tests administered in each case, based in part on the absence of expert evidence supporting the fact that failing one of these tests, would be an indication of impairment. [ 21 ] With respect for contrary opinion, the court does not believe that at the step of reasonable and probable grounds, such a high level of proof is needed. [ 22 ] It is well established in jurisprudence that if a police officer subjectively believes that a person has committed a crime and that his or her belief is objectively reasonable, the subsequent arrest of the suspect will be deemed as being legal. [ 23 ] In 1990, what constitutes reasonable grounds was laid down by the Supreme Court of Canada in R. v.

Storrey [4] . In that case, it was established that reasonable grounds have both a subjective and an objective aspect. The arresting officers must subjectively have reasonable and probable grounds on which to base an arrest. Moreover, those grounds must be justifiable from an objective point of view, such that a reasonable person placed in the position of the arresting officer, can conclude that there were reasonable and probable grounds for the arrest. [ 24 ] The standard is not one of proof beyond a reasonable doubt as for a finding of guilt.

It has been described as it being more likely than not, that a suspect has committed a crime. [ 25 ] Also, all the information available to the officers must be evaluated as a whole and not piece by piece. [ 26 ] Applying this reasoning to field sobriety tests, once an officer subjectively believes that a suspect has failed a test, his conclusions will be probative if they are objectively reasonable in the circumstances. [ 27 ] If an officer testifies that based on criteria known to him, a subject did not perform a sobriety test successfully, such a conclusion should be deemed as being objectively reasonable, depending on the nature of his qualifications, his experience or any other element which when considered, convinces the court that in those circumstances, it was reasonable to conclude as he did. [ 28 ] If an officer testifies for example that he received training pertaining to the administration of field sobriety tests while attending the National Police academy, that he administered one of those tests to a suspect in accordance with his training and that it was indicated to him that failing such a test constituted a symptom of impairment, apart than for a motive related to credibility, the court sees no reason to conclude that such a subjective inference would be objectively unreasonable. [ 29 ] The second argument submitted by the accused, finds it's basis in section 254(2) of the C riminal Code which reads as follows:

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph ( a ), in the case of a drug, or with either or both of paragraphs (

a) and ( b ), in the case of alcohol: (

a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and (

b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose. [ 30 ] The physical coordination tests provided for by regulation are enumerated at

section 2 of the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations (SOR/2008-196 ) which reads as follows : 2. The physical coordination tests to be conducted under paragraph 254(2) (

a) of the Criminal Code are the following standard field sobriety tests: (

a) the horizontal gaze nystagmus test; (

b) the walk-and-turn test; and (

c) the one-leg stand test. [ 31 ] Thus, the accused submits that since the test administered by Office McComber is not one provided for by the regulation, the

order made according to section 254(2) and the subsequent test should be considered illegal. My colleague Justice Lemay followed this reasoning in the aforementioned case of R v. Kevin Hamel Lanctôt [5] . [ 32 ] Although the Court agrees with the fact that the test administered by officer McComber does not respect the provisions of section 254(2) of the Criminal Code , this does not necessarily lead to a finding that the demand and the test were illegal. [ 33 ] Section 254(2) as it reads today was enacted in 2008.

Before that time, none of the provisions of the Criminal Code , enabled peace officers to order or administer field sobriety tests. [ 34 ] Nonetheless, the Supreme Court validated these procedures, notably in R. v. Elias and Orbanski [6] . At paragraph 41, Justice Charron in the name of the majority, reiterated the following principals, already recognized by the Court in previous decisions: 41 It is also settled law that the police have the authority to check the sobriety of drivers. This authority was found to exist at common law in Dedman.

More pertinently, it was also found in statute in Ladouceur, where this Court held that checking the sobriety of drivers was one of the purposes underlying the general statutory vehicle stop powers. It is the same kind of general statutory power that is in question on these appeals.

As the Court stated in Ladouceur, police officers can stop persons under such statutory power only for legal reasons — in the circumstances of that case (as here), for reasons related to driving a car such as checking the driver’s licence and insurance, the sobriety of the driver and the mechanical fitness of the vehicle (p. 1287). [ 35 ] She goes on to ad : 5 The screening of drivers necessarily requires a certain degree of interaction between police officers and motorists at the roadside.

It is both impossible to predict all the aspects of such encounters and impractical to legislate exhaustive details as to how they must be conducted. On this point, I respectfully disagree with the analysis of my colleague Justice LeBel. As I read his reasons, unless a statute prescribes specific investigatory measures, a police officer has a duty to provide motorists with their right to counsel before taking any steps to assess their sobriety. For example, in Mr.

Elias’s case, my colleague takes the view that police officers can only ask motorists about alcohol consumption before they contact counsel if legislation permits it. Presumably, the same reasoning would apply in respect of any general question designed to assess the sobriety of the driver. On that approach, a police officer would be well advised to provide motorists with their right to counsel as soon as they rolled down their window. In my view, this would result in longer and often unnecessary detentions.

While statutory provisions such as the recent Manitoba amendments can provide more guidance and certainty on the scope of permissible investigatory measures, it is my view that many of the powers set out in the amendments are implicit in the existing Manitoba legislation. The recognition of these powers is not carved out of whole cloth from common law principles to suit the occasion — these powers are part of a longstanding statutory scheme that permits police officers to stop drivers and check their sobriety.

The scope of justifiable police conduct will not always be defined by express wording found in a statute but, rather, according to the purpose of the police power in question and by the particular circumstances in which it is exercised. Hence, it is inevitable that common law principles will need to be invoked to determine the scope of permissible police action under any statute. In this context, it becomes particularly important to keep in mind that any enforcement scheme must allow sufficient flexibility to be effective.

The police power to check for sobriety, as any other power, is not without its limits; it is circumscribed, in the words of the majority of this Court in Dedman by that which is “necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference” (p. 35). 46 Doherty J.A. provided a useful delineation of the scope of the police power to check the sobriety of drivers at the roadside in Smith where he stated that “a procedure cannot be reasonable . . . unless it can be performed at the site of the detention, with dispatch, with no danger to the safety of the detainee and with minimal inconvenience to the detainee” (p. 73). 47 Whether a particular screening measure will fall within the scope of authorized police action is a question that necessarily calls for a case-specific inquiry.

In more obvious cases of drinking and driving, observation of the driver alone may suffice for effective screening.

But one can think of many examples in which observation of the driver through the open car window will not be sufficient to enable the officer to draw the line between those drivers with a permissible amount of alcohol in their body and those who have reached the impermissible level. [ 36 ] Here in Quebec, the Highway safety act provides such a statutory basis. [ 37 ] Officer McComber's demand should thus be considered legal, since the test he administered was performed at the site of the detention, with no danger to the safety of the accused and with minimal inconvenience to him. [ 38 ] Applying these principals to the case at bar, the court comes to the conclusion that although he subjectively believed he had reasonable grounds to arrest the accused, officer McComber's belief was not objectively reasonable. [ 39 ] The Court agrees with the officer's conclusions that without the failed sobriety test, he could only suspect that the accused was impaired. [ 40 ] He openly recognized in cross-examination, that he had received no formal training for administering the test, but that he had observed colleagues doing it on several occasions.

Unfortunately, his testimony lacks sufficient details relating to what he was taught by other officers. No mention was made as to what he was told would generally constitute a fail for such a test and if there were any limitations, physical or otherwise, that had to be verified before the test was executed. [ 41 ] His testimony is insufficient to permit a complete evaluation of the reasonableness of his conclusion, that the accused failed the test. [ 42 ] For these reasons the court concludes that officer McComber did not have reasonable grounds to arrest Mr.

Grand-Louis for impaired driving and that his subsequent detention was in contravention of

section 9 of the Canadian charter of rights and freedoms .

__________________________________ STÉPHANE GODRI , C.Q.J. Me Émilie Dion Director of Criminal and Penal Prosecutions Attorney for the Respondent Me Cynthia Lacombe Schneider & Gaggino Attorney for the Petitioner