R. v. Mason, 2013 ONCJ 328

Citation: R. v. Mason , 2013 ONCJ 328 ONTARIO COURT OF JUSTICE Central West Region Brampton Ontario B E T W E E N : HER MAJESTY THE QUEEN -and- JULIE MASON REASONS FOR JUDGMENT Duncan J. 1 . The defendant is charged with exceed 80, offence date April 12 2012. Her defence focuses on the roadside screening test that led ultimately to the obtaining of breath samples that betrayed 160 mgs of alcohol in 100 millilitres of her blood. Specifically it is argued that the demand for the ASD was not supported by reasonably grounded suspicion.

Further, it is argued that the ASD result should not have been accepted as reliable since the defendant was permitted to smoke while, or just before, she provided the roadside samples. The grounds for the ASD demand: 2 . At around 1:17am, PC Brar was responding to another call when he noticed a car driving in front of him swerve across its lane about three times. He decided to stop it to check the driver’s sobriety. When he approached the vehicle and the window was rolled down he could smell smoke and a faint odour of alcohol coming from the vehicle containing the driver (the defendant) and a male passenger.

He further testified that when the defendant exhaled her cigarette smoke he determined that the odour of alcohol was coming from her breath. On the basis of the driving and the odour of alcohol, he gave the ASD demand at 1:19. 3 . In cross examination it was revealed that the purported observation of the smell coming from the defendant’s breath was not in the officer’s notes. Further, the notes described the driving in such a way as to leave the impression that there was only one swerve seen, rather than three.

Finally, the defendant testified on the voir dire that there were no swerves at all and that her driving was fine (as was her condition). 4 . I regard the omission from the notes with respect to the breath odour as significant and I am not prepared to accept the officer’s

evidence on that point: see R v Zack [1999] OJ No 5747. The note re the number of swerves is less significant but similarly I am notprepared to accept the evidence that there were three swerves. On the other hand I do not accept the defendant’s evidence that there werenone. Clearly something brought the defendant’s driving to the officer’s attention that was important enough to deflect him from hisoriginal course of responding to another call. 5. In sum, I find that the ASD demand was based on a suspicion grounded in one swerve and a smell of alcohol coming from thevehicle with two occupants.

Reasonable grounds to suspect: 6. The Code provides: 254(2) If a peace officer has reasonable grounds to suspect that a person has alcohol…in their body and has within the previous threehours operated a motor vehicle, he may, by demand …. 7. In R v Kang-Brown 2008 SCC 18 , [2008] 1 SCR 456 the Court discussed the threshold standard of justification for apolice dog sniff-search for drugs of a person and his bag in a public bus terminal.

The plurality of the Court, per Binne J held that suchsearch was justified if there existed “reasonable suspicion”, which he defined as follows (para 75): The "reasonable suspicion" standard is not a new juridical standard called into existence for the purposes of this case. "Suspicion" is anexpectation that the targeted individual is possibly engaged in some criminal activity. A "reasonable" suspicion means something morethan a mere suspicion and something less than a belief based upon reasonable and probable grounds. As observed by P.

Sankoff and S.Perrault, "Suspicious Searches: What's so Reasonable About Them?" (1999), 24 C.R. (5th) 123: • [T]he fundamental distinction between mere suspicion and reasonable suspicion lies in the fact that in the latter case, a sincerelyheld subjective belief is insufficient.

Instead, to justify such a search, the suspicion must be supported by factual elements which can beadduced in evidence and permit an independent judicial assessment. ... • What distinguishes "reasonable suspicion" from the higher standard of "reasonable and probable grounds" is merely the degree ofprobability demonstrating that a person is involved in criminal activity, not the existence of objectively ascertainable facts which, in bothcases, must exist to support the search. [pp. 125-26] 8.

In short, suspicion is a belief in a mere possibility of criminal activity; a reasonable suspicion is one that has some objective factsto support it, as opposed to some purely subjective hunch or gut feeling. In Kang-Brown Binnie J went on to hold that the suspicion inthat case was not reasonable or objectively supported because it was substantially if not solely based on the fact that the defendant maderepeated eye contact with the officer. The Court pointed out that the exact opposite – avoiding eye contact – had also been used tosupport suspicion in other cases.

Accordingly, making eye contact was not logically probative or indicative of anything. 9. By contrast, the smell of alcohol is indicative of the presence - and therefore possible consumption -and therefore presence in thebody - of alcohol. The odour of alcohol on the driver’s breath is sufficient to support the required suspicion: R v Lindsay (1999) (ON CA), 134 CCC 3d 159 (Ont CA). The odour of alcohol coming from within a vehicle with the driver being the soleoccupant is also sufficient: R v Pozniak infra; R v Kokkinakis [1999] OJ No 1326( CJ).

The next question is whether the smell of alcoholcoming from a vehicle with more than one occupant is a sufficient basis for reasonable suspicion in relation to the driver. Much of theable argument of defence counsel in this case was directed to this point and there are a number of decisions that support his submission.To mention only the Ontario cases: R v Marchione 2013 ONSC 569; R v Rasheed 2009 ONCJ 41; R v White 2008 ONCJ 437;’ R vPozniak [2008] OJ No. 687; R v Rodrigues [2005] OJ No. 1551.There are undoubtedly others.

None of these decisions is binding uponme[1] and, with respect, I take a different view. 10. First, it seems to me that the reasoning, either express or implied in these cases is encapsulated in this passage from Rodrigues para13: The officer, in order to objectively form a reasonable suspicion, would be obliged to eliminate the possibility that the odour came fromthe passenger, or to determine that the odour came from both the passenger and the accused before he could reasonably suspect that theaccused had alcohol in his body. 11.

But the Court of Appeal in R v Bush 2010 ONCA 554 , [2010]OJ No.3453 made it clear that this reasoning is notappropriate in the context of assessing reasonable and probable grounds for an Intoxilizer demand. There the

summary conviction appeal

court judge reversed the trial judge’s finding that grounds existed by reasoning that many of the indicia relied upon by the trial judge were also consistent with the effects of the accident in which the defendant had been involved.

Therefore, the lower Court reasoned, those indicia should have been ignored in the assessment of grounds because there could be other explanations.(para 50) On appeal by the Crown to the Court of Appeal, the conviction was restored, the Court holding: …. that there might be another explanation for some of the factors the officer properly took into account in forming his opinion of impairment to drive did not eliminate the indicia or render them unreliable. 12 . The Bush decision must, a fortiori apply to the lower standard of reasonable suspicion [2] .

Accordingly, it is conclusive authority against the reasoning applied in the cases cited above, such as Rodrigues and against the submission urged by counsel for the defendant in this case. That a smell of alcohol coming from a confined space that includes the driver could be attributable to the passenger (or spilled alcohol, or an open bottle) does not deprive it of its ability to support a suspicion related to the driver. If it could be the driver or it could be the passenger, in my view there is a reasonable suspicion in respect of each of them. 13 .

To require the elimination of other possibilities in my view is to misconstrue the meaning of “suspicion” and to effectively equate it with a standard of “reasonable grounds to believe” – or higher. In fact it approaches the old rule in Hodges case, applicable to proof beyond a reasonable doubt on circumstantial evidence – consistent with guilt and inconsistent with any other rational alternative conclusion. 14 .

Further, it is well established that the standard for exercise of police powers is flexible and highly contextual: R v Golub 1997 CanLII 6316 (ON CA) , [1997] OJ No3097 (CA) ; R v Kang-Brown supra para 49 . In my respectful view, the cases relied upon by the defendant do not have sufficient regard to the context of roadside alcohol screening, in which the public interest looms large while the interference with liberty is minimal.

The latitude given to police should be expansive and generous. [3] Requiring an officer to locate the probable source of the odour of alcohol coming from inside a car is “ contrary to a common sense consideration of how precise an officer can be while sniffing at a window on a dark, cold, windy roadside in heavy traffic” See Kokkinakis supra at para 18. 15 . The present case illustrates the implications that would flow from a restrictive approach.

It would dictate that the defendant, though ultimately shown to have been driving with twice the legal limit of alcohol in her blood could not have been subjected to roadside screening because of alternative possibilities that the smell of alcohol was coming from her passenger or another alcohol source within the car. I do not think that the legislation should be interpreted in such a way as to invite or compel such a result. 16 . In conclusion, it is my view that the smell of alcohol from the vehicle provided the officer with reasonable grounds to suspect that the defendant had alcohol in her body.

In addition the single instance of swerving that led to the stop gave further reasonable support to that suspicion. The smoking issue: 17 . The defendant was smoking when the vehicle was stopped. She continued to hold the lit cigarette during the first two attempts to obtain a sample. She provided a suitable sample on the 5 th attempt. It registered a “fail”. As I understood the evidence, the defendant remained in the driver’s seat of her car throughout the procedure, while the officer held the device outside the car.

The officer acknowledged that he understood that smoke or alcohol in the air may affect the result but in this case he felt it did not matter since the device was outside the car. There was no evidence as to whether or to what extent the procedure followed may have affected the resulting reading. [4] 18 . In my view, as odd as it was, there was no evidence that the smoking undermined the objective reliability of the test or the officer’s subjective belief in its reliability. It therefore was a valid test that could be relied upon to support the further Intoxilizer demand and tests. Conclusion: 19 .

The roadside demand was sufficiently grounded on reasonable suspicion and was therefore authorized by law. The screening test

result could be relied upon to justify the further Intoxilizer demand and test. There was no Charter infringement; the results are admissible. All else is proven. 20 . The defendant is found guilty. April 30 2013 B Duncan J A Fedak-Tarnopolsky for the Crown T McDonald for the defendant [3] An expansive

interpretation of the threshold requirement would still be a significant restraint on police not found in some countries with similar legal traditions to our own. In Australia, some states have enacted Random Breath Testing (RBT) legislation. Cars are stopped and roadside screening tests are administered immediately without grounds : see paragraph 1 under heading “Objectives” in

article found at: http://www.driveandstayalive.com/articles%20and%20topics/drunk%20driving/artcl--drunk-driving-0010-- random_breath_testing.htm Several examples of RBT in operation can be seen on YouTube: ex: http://www.youtube.com/watch? v=Qn4UcvPiJA0 These programs were initially controversial: see http://www.walk.com.au/pedestriancouncil/page.asp?pageid=503 but are now accepted as a way of life:. http://www.dailytelegraph.com.au/news/national/long-road-but-rbt-is-now-a-part-of-life/story- fndo28a5-1226519897740 There is even a popular reality TV program called “RBT” which follows and goes behind the scenes of the patrols.

RBT has proven to be very effective in reducing impaired driving. An Australian might consider Canadian law to be somewhat odd. We permit random groundless stops to check sobriety but do not permit random groundless administration of a simple test to carry out that check.