HER MAJESTY THE QUEEN — v. —, 2016 ONCJ 212

CITATION: R. v. Kading , 2016 ONCJ 212 ONTARIO COURT OF JUSTICE Old City Hall - Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — TYLER KADING ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) M. Goldenberg and A. Leggett For the Crown R. M. Allegra For the Defendant Heard: March 29, 2016 REASONS for JUDGEMENT MELVYN GREEN, J.: A. INTRODUCTION [ 1 ] Tyler Kading, the defendant, registered a “Fail” on a roadside screening device at a RIDE stop in the early hours of December 12, 2014. “Over 80” Breathalyzer readings soon followed.

As a result, the defendant was charged with operating a motor vehicle with an excessive blood alcohol concentration (BAC). [ 2 ] The only testimonial evidence at this trial was that led through the arresting officer, PC Simon Toyne. The Certificate of a Qualified Technician, confirming the “over-80” readings, supplements the officer’s testimony. [ 3 ] The defence is founded on Charter-related considerations. In short, counsel alleges that PC Toyne did not have legally sufficient

grounds to make a roadside breath demand of his client at the time he first advanced that demand. The roadside testing, he says, thenamounts to a breach of the defendant’s right to be secure against unreasonable search and seizure, as protected by s. 8 of the Charter. Asthe reasonableness of the subsequent Breathalyzer demand and its inculpatory results are premised on the “Fail” registered at roadside,the evidence of these BAC readings also results from breaches of the defendant’s s. 8 rights.

The remedy for these constitutionalviolations, the argument continues, is an order excluding the approved instrument (Breathalyzer) readings under s. 24(2) of the Charter. [4] As the Crown’s case against the defendant is dependent on the approved instrument readings, the defendant’s acquittalnecessarily follows their exclusion.

Needless to say, Crown counsel resists the defendant’s claims respecting any Charter violation and,if established, the appropriateness of the relief sought. [5] The trial proceeded by way of a blended proceeding, evidentiary receipt of the Certificate resting on my determination of theCharter application. B. EVIDENCE [6] As noted, other than the Certificate establishing the Breathalyzer readings, the only evidence tendered at trial was through thetestimony of PC Toyne. [7] Toyne is an eleven-year veteran of the Toronto Police Service (TPS).

He was manning a RIDE installation at the intersection ofSpadina Avenue and Lakeshore on December 12, 2014. He stopped a black Ford at 1:20am. There were two occupants: the defendantdriver and a front seat passenger. Toyne smelled the odour of alcohol emanating from the interior of the car the moment the defendantlowered his window. He asked the defendant if he had consumed any alcohol. The defendant replied, “No”. Other than this single word,the defendant said nothing until instructed to leave his car and accompany the officer.

Nonetheless, in Toyne’s view the defendant’sspeech was drawn out and slurred, he had trouble focusing, and he appeared nervous and hesitant. Based on these observations, theofficer testified that within a minute of the initial stop he formed a reasonable suspicion that the defendant had alcohol in his body. As aresult, he made a roadside “approved screening device” (ASD) demand with words like: “I smell alcohol. I need you to come with me toprovide a sample”. Toyne, in his examination in chief, styled this an “informal” demand. [8] The defendant accompanied the officer to the nearby RIDE truck.

Toyne noticed that a strong smell of alcohol travelled with thedefendant although he could not say whether it was from his breath. The defendant was unsteady on his feet. Once in the RIDE truck,Toyne testified to reading the defendant a “formal” ASD demand. Toyne was satisfied the ASD was in proper working order.

Heinstructed the defendant as to the appropriate testing procedure and, by 1:23am, a suitable sample – registering a “Fail” – was secured.Toyne then formed what he described as reasonable and probable grounds to believe that the defendant was “over 80” and, accordingly,arrested him for the offence of operating a motor vehicle with an excessive BAC. He read the approved instrument demand to thedefendant and his rights to counsel.

Following a call to duty counsel, as requested by the defendant, and queuing for the breath technicianin the RIDE truck, the defendant provided two proper samples, one at 2:22am and the second at 2:45am. The truncated readings are,respectively 150 and 140 milligrams of alcohol in 100 millilitres of blood, close to twice the “legal limit” of 80 milligrams per 100millilitres. [9] The defendant left in a taxi after being released from the RIDE truck on a Promise to Appear. He was polite and co-operativethroughout.

He was not charged with impaired driving. [10] PC Toyne made contemporaneous notes of his involvement with the defendant. They record only a single occasion when Toynemade an ASD demand of the defendant – while the defendant was still sitting in his car within the first minute after he was stopped.There is no notation of any indicia of impairment in Toyne’s notes up to the point when this demand was made – nothing about thedefendant’s speech being drawn out or slurred, or of trouble focusing or nervousness.

Toyne’s testimonial recall (some 15 months afterthe event) of making a second, or “formal”, ASD demand was, he said, consistent with his “practice”. C. ANALYSIS (

a) Introduction [11] As already noted, the Crown’s case depends on the admissibility of the Certificate of the Qualified Technician. The soleimpediments to receipt of this evidence are the defendant’s claims that the “Fail” registered through the roadside ASD and the derivativeevidence of the results of his approved instrument sampling, as set out in the Certificate, are products of the state’s infringement of hisCharter s. 8 rights and that the just and appropriate remedy for this constitutional violation is an order excluding the Certificate pursuantto s. 24(2) of the Charter. (

b) The

Section 8 Issue (

i) The Threshold of “Reasonable Suspicion” [12]

Section 8 of the Charter proclaims that “everyone has the right to be secure against unreasonable search or seizure”. In law, theASD is a search and evidence of the “Fail” resulting from its exercise is a seizure. The search and the seizure were conducted withoutwarrant. Accordingly (and unlike the allocation of the onus respecting the s. 24(2) application), the burden falls to the Crown, rather thanthe defendant applicant, to establish, on the balance of probabilities, the reasonableness of both the search and seizure: R. v. Haas(2005), (ON CA), 200 C.C.C. (3d) 81, at para. 24 (Ont.

C.A.). [13] In this context, reasonableness and constitutional compliance both depend on the Crown establishing that the statutory standardfor such warrantless roadside search, as authorized by s. 254(2) of the Criminal Code, has been respected. The relevant portions of the

provision read: 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 thepreceding three hours, operated a motor vehicle … the peace officer may, by demand, require the person …: (

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 anapproved screening device and, if necessary, to accompany the peace officer for that purpose. Satisfaction of the statutory driving prerequisite to a lawful demand is not at issue.

Accordingly, proof of constitutional compliancedepends on the Crown establishing that PC Toyne had “reasonable ground to suspect” that the defendant had “alcohol in [his] body”when he demanded that the defendant provide a sample of his breath into an ASD for purposes of analysis. [14] Although a low threshold, “reasonable grounds to suspect” (or, as it is often put, “reasonable suspicion”) requires satisfaction ofboth subjective and objective elements.

As no issue is here taken with PC Toyne’s personal belief in the requisite suspicion, the coreconcern is whether, on all the evidence, there is an objective basis for his subjectively held suspicion. [15] The most thorough and authoritative discussion of the meaning and legal contours of “reasonable suspicion” is that recentlydeveloped by the Supreme Court in in R. v. Chehil, 2013 SCC 49 , [2013] 3 S.C.R. 220, at paras. 25-35. The key passages, asauthored by Karakatsanis J. for a unanimous court, follow.

The reasonable suspicion threshold respects the balance struck under s. 8 by permitting law enforcement to employ legitimate but limitedinvestigative techniques. This balance is maintained by subsequent judicial oversight that prevents indiscriminate and discriminatorybreaches of privacy interests by ensuring that the police have an objective and reasonable basis for interfering with an individual’sreasonable expectation of privacy. Reasonable suspicion derives its rigour from the requirement that it be based on objectively discernible facts, which can then besubjected to independent judicial scrutiny.

This scrutiny is exacting, and must account for the totality of the circumstances. In [R. v.]Kang-Brown, [2008 SCC 18 , [2008] 1 S.C.R. 456] Binnie J. provided the following definition of reasonable suspicion, at 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.

Thus, while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be groundedin objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime. Asa result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the more demandingreasonable and probable grounds standard.

The fact that reasonable suspicion deals with possibilities, rather than probabilities, necessarily means that in some cases the police willreasonably suspect that innocent people are involved in crime. … Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation ofobjectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in thetype of criminal activity under investigation.

This inquiry must be fact-based, flexible, and grounded in common sense and practical,everyday experience … A constellation of factors will not be sufficient to ground reasonable suspicion where it amounts merely to a “generalized” suspicionbecause it “would include such a number of presumably innocent persons as to approach a subjectively administered, random basis” for asearch: United States v. Gooding, 695 F.2d 78 (4th Cir. 1982), at p. 83. … Generally, characteristics that apply broadly to innocent people are insufficient, as they are markers only of generalized suspicion.

The same is true of factors that may “go both ways”, such as an individual’s making or failing to make eye contact. On their own, suchfactors cannot support reasonable suspicion; however, this does not preclude reasonable suspicion arising when the same factor is simplyone part of a constellation of factors. Further, reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors.

Much as theseven stars that form the Big Dipper have also been interpreted as a bear, a saucepan, and a plough, factors that give rise to a reasonablesuspicion may also support completely innocent explanations. This is acceptable, as the reasonable suspicion standard addresses thepossibility of uncovering criminality, and not a probability of doing so. Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors.

The totality of thecircumstances, including favourable and unfavourable factors, must be weighed in the course of arriving at any conclusion regardingreasonable suspicion. … However, the obligation of the police to take all factors into account does not impose a duty to undertake further investigation to seek outexculpatory factors or rule out possible innocent explanations. … Finally, the objective facts must be indicative of the possibility of criminal behaviour.

While I agree … that police must point toparticularized conduct or particularized evidence of criminal activity in order to ground reasonable suspicion, I do not accept that theevidence must itself consist of unlawful behaviour, or must necessarily be evidence of a specific known criminal act. [16] The Chehil decision addresses the application of a s. 8 standard of “reasonable suspicion” in the context of canine-assistedinvestigations of drug transport and trafficking operations. This explains the Court’s repeated references to facts probative of criminality,

as in the last-cited paragraph: “the objective facts must be indicative of the possibility of criminal behaviour”. As regards roadside ASDdemands, an officer’s reasonable suspicion need go no further than that required by s. 254(2) – that is, reasonable suspicion that a personwho has driven a motor vehicle within the previous three hours has alcohol in his or her body. As said by the Court of Appeal in R. v.Lindsay (1999), (ON CA), 134 C.C.C. (3d) 159, at para. 2: There need only be a reasonable suspicion and that reasonable suspicion need only relate to the existence of alcohol in the body.

Theofficer does not have to believe that the accused has committed any crime. [17] R. v. Clarke, [2015] O.J. No. 2906 (C.J.) affords one recent illustration of the application of “reasonable suspicion” in theimmediate legal environment, that of roadside breath screening.

In considering the Supreme Court’s reasoning as developed in the “dogsniffing” cases such as Chehil, Paciocco J., at paras. 107-108, helps clarify the relationship between “suspicion” and “possibility” andexplain the relatively low threshold for justifiable constitutional state intervention conveyed by both concepts: [A] reasonable belief in a possibility is enough to ground a reasonable suspicion. Indeed, in this context [roadside screening], suspicionand possibility are used interchangeably in the authority. Justice Binnie said in R. v.

Kang-Brown [supra] at para 75, “Suspicion” is anexpectation that the targeted individual is possibly engaged in some criminal activity.” In R. v. Chehil [supra], at para 28 the Court saidexplicitly that “reasonable suspicion deals with possibilities, not probabilities.” … Reasonable suspicion is a low test, appropriate to the diminished expectation of privacy that exists where this standard isconstitutionally acceptable. To meet this standard the suspected fact need not be the only possible fact capable of being inferred from theinformation relied upon: R. v. Chehil [supra], at para 32.

It is enough if it is one of the reasonably possible facts. This does not inviteofficers to act based on the general theory that anything is possible. Whether it is “reasonable” for an officer to suspect a fact is to beconsidered on the “objectively discernible facts” relied upon by the officer, evaluated in a “flexible [manner] grounded in common senseand practical, everyday experience”: R. v. Chehil, at para. 29. (ii) Applying the Law of “Reasonable Suspicion” [18] I am not satisfied that PC Toyne made a second ASD demand once he and the defendant entered the RIDE truck.

Toyne is anexperienced and clearly intelligent officer who well understood the importance of keeping contemporaneous notes of his investigations.Yet, there is no record of the more “formal” demand in Toyne’s notebook and his testimonial recall appears primarily anchored inpractice. [19] I do accept Toyne’s uncontradicted evidence of an odour of alcohol shadowing the defendant as he walked to the RIDE truck andthat he exhibited some unsteadiness. These observations provide an ample objective basis to infer a “reasonable suspicion” that thedefendant had “alcohol in his body”.

However, I am not satisfied, even on a balance of probabilities, that Toyne verbalized a seconddemand. Even if he had, it was the defendant’s compliance with the first demand that led him, as directed, to accompany Toyne to thetruck, thus affording the officer the opportunity to make those further observations that amount to objectively reasonable suspicion. Tobe clear, Toyne’s investigation did not cease once he instructed the defendant to escort him to the truck.

Toyne was not, however,conducting a prefatory investigation as to whether he had the basis to exercise his powers under s. 254(2) when he made the car-sideASD demand. Rather, Toyne had by then determined that he indeed had the statutory authority to effectively take command of thedefendant and compel him, at risk of criminal jeopardy if he refused, to accompany him for roadside breath-screening.

And he had in factacted on that settled determination in making his “informal” demand. [20] Accordingly, the s. 8 analysis is focused on whether the lawful standard for an ASD demand was respected when that demandwas made to the defendant as he sat in the driver’s seat of his motor vehicle. If the standard prescribed in s. 254(2) of the Code is met,then the state’s Charter obligations are satisfied.

If, however, Toyne’s subjective suspicion is not grounded in objectively discernablefacts that render his suspicion reasonable, then a constitutional breach has occurred and the inquiry moves to the question of exclusionunder s. 24(2) of the Charter. [21] PC Toyne claimed few “reasonable grounds to suspect” that the defendant had alcohol in his body. First and foremost, an odourof alcohol emanated from inside the car the moment the defendant lowered his window. In addition, the defendant had difficultyfocusing and appeared nervous.

Finally, the defendant’s sole utterance before the ASD demand was made – the single word “no” – wasdrawn out and slurred. I accept, in essence, Toyne’s evidence respecting each of these observations. I acknowledge that apart from theimmediate odour of alcohol, those attributed directly to the defendant were not recorded in Toyne’s notes. On their own, they amount toambiguous or equivocal conduct that is far less telling – and, perhaps for that reason, noteworthy – than the indicia of alcoholconsumption Toyne observed as he and the defendant walked to the RIDE truck.

More importantly, however, I do not find that theofficer embellished his evidence or otherwise overreached. He freely acknowledged, for example, that he could not say whether theodour of alcohol radiated from the defendant’s breath. Similarly, he did not charge the defendant with impaired driving. [22] The Court of Appeal has at least twice held that the smell of alcohol alone on a driver’s breath is sufficient to furnish aninvestigating officer with an objective basis to conclude the presence of alcohol in the driver’s body for purposes of making a roadsidedemand: R. v. Lindsay, supra; R. v.

Carson, 2009 ONCA 157 , [2009] O.J. No. 660. At least one of my colleagues has held (andrightly so, in my assessment) that the odour of alcohol emanating from a vehicle housing a single occupant is, itself, sufficient to properlyground a s. 254(2) demand: R. v. Kokkinakis, [1999] O.J. No 1326 (C.J.).

And, in my view, the odour of alcohol in the defendant’s Ford,when combined with signs of nervousness and some hesitation or drawing out the pronunciation of the word “no”, similarly crests thelow hurdle required to meet the test for “reasonable suspicion”. [23] I appreciate that other trial judges have reached a different conclusion respecting whether similar evidence meets the standardprescribed by s. 254(2): see, by way of one recent example, R. v. Shaw, 2016 ONCJ 196, at para. 14.

Nonetheless, I remain persuadedthat that correct application of the logic of the Supreme Court’s reasoning in Chehil results in a finding that there is an objective basis forthe car-side ASD demand in this case. The “constellation of factors” to which I must here have regard is not large and includes some(such as nervousness) that, on their own, “cannot support reasonable suspicion”. However, as further said in Chehil, “this does notpreclude reasonable suspicion arising when the same factor is simply one part” of a larger collection of ambient circumstances. Further

still, “reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors”; indeed, innocuousor innocent inferences may well be equally available without negativing that or those giving rise to a reasonable suspicion. As said in R.v. Lindsay, supra, “The fact that there may be an explanation for the smell of alcohol does not take away from the fact that there exists areasonable suspicion”. “Reasonable suspicion”, as said in Chehil, “deals with possibilities, not probabilities”.

The possibility that theodour of alcohol may be exclusively attributable to the only other occupant of the car does not render Toyne’s “suspicion” that thedefendant was the odour’s source (and, by way of secondary inference, indicative of his having alcohol in his body) any less“reasonable” in all the circumstances. [24] Put otherwise, the odour of alcohol radiating from the car reasonably supported inferences that the defendant, his passenger, orboth had alcohol in their body.

The s. 254(2) standard for an ASD demand is satisfied so long as the presence of alcohol in thedefendant’s body is among the catchment of reasonable inferences that may be drawn from the discernable facts. [25] I am satisfied, then, that there is a reasonable basis for Toyne’s suspicion that the defendant had alcohol in his body.Accordingly, the demand was lawful and the roadside search and seizure that followed were constitutionally compliant. (

c) The Section 24(2) Issue (

i) Introduction [26] Had I held that the ASD demand failed to meet the standard dictated by s. 254(2) and that the subsequent search of thedefendant’s breath thus violated his privacy interests, I would still admit the Certificate setting out the defendant’s excessive BACreadings. [27] A proper s. 24(2) analysis involves the application of a three-part test followed by a balancing of the results of each to determinewhether, as directed by the provision, “it is established that, having regard to all the circumstances, the admission of [the disputedevidence] in the proceedings would bring the administration of justice into disrepute”.

If so, the “appropriate and just remedy” is anorder excluding the improvidently gained evidence. As summarized in the seminal case of R. v.

Grant, 2009 SCC 32 , [2009] 2S.C.R. 353, at para. 71: [A] court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to:(1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious statemisconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message thatindividual rights count for little), and (3) society’s interest in the adjudication of the case on its merits.

The court’s role on a s.24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all thecircumstances, admission of the evidence would bring the administration of justice into disrepute. Much of the voluminous jurisprudence bearing on the application of these inquiries and principles has been helpfully canvassed by K.L.Campbell J. in R. v. Rehill, 2015 ONSC 6025 , [2015] O.J.

No. 5068, at paras. 27-47. (ii) The Seriousness of the State Conduct [28] There is a continuum of Charter-infringing state conduct that runs from the negligent or inadvertent to the knowing or intentionalsubversion of constitutional rights. In the language of Grant, at para. 72, the “more severe or deliberate the state conduct that led tothe Charter violation, the greater the need for the courts to dissociate themselves from that conduct”. If Toyne failed here to meet thestandard of reasonableness, it was not by very much.

Further, evidence indisputably capable of supporting the low threshold for a lawfulASD demand became apparent within seconds of the defendant complying with the car-side instruction to accompany the officer.Further still, I do not attribute bad faith to Toyne by way of willful blindness or ignorance of Charter standards. Toyne was alive to theneed to locate an objective factual basis for his suspicion that the defendant had alcohol in his body. That he was able to draw thatinference in under a minute does not detract from his belief in its reasonableness.

Nor is there any complaint about Toyne’s treatment ofthe defendant or any evidence that his behaviour was part of a pattern – either his own or that of the TPS – that would cause a court tomove to disassociate itself from his conduct. Nor, finally, is there any allegation of Charter-violative conduct independent of that derivedfrom relying on the “Fail” generated through the ASD testing.

In the end, the s. 8 breaches flowing from an unreasonable roadsidedemand, if such it was, fall to the less serious side of this spectrum and, accordingly, favour admissibility of the Certificate. (iii) Impact of the Charter Breach [29] The second line of inquiry, as said in Grant, at para. 76, “calls for an evaluation of the extent to which the breach actuallyundermined the interests protected by the right infringed”.

I appreciate that the initial s. 8 violation, if such occurred, was compoundedby the derivative search and seizure associated with the approved instrument testing and, although not expressly pleaded, by thedefendant’s then unlawful detention until such time as he was released from the RIDE truck. In R. v.

Stillman, (SCC),[1997] 1 S.C.R. 607, at para. 90, the majority held that, [T]he Criminal Code provisions pertaining to breath samples are both minimally intrusive and essential to control the tragic chaos causedby drinking and driving Grant, at para. 111, is to like and even more immediately apposite effect: [W]here an intrusion on bodily integrity is deliberately inflicted and the impact on the accused’s privacy, bodily integrity and dignity ishigh, bodily evidence will be excluded, notwithstanding its relevance and reliability.

On the other hand, where the violation is lessegregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused’sbody may be admitted. For example, this will often be the case with breath sample evidence, whose method of collection is relativelynon-intrusive. [Emphases added.] As with the first prong of the s. 24(2) analysis, the “impact” inquiry – even upon consideration of the consequent search and detention –

does not support exclusion. (iv) Societal Interest in a Trial on the Merits [30] The third consideration, as put in Grant, at para. 79, “asks whether the truth-seeking function of the criminal trial process wouldbe better served by admission of the evidence, or by its exclusion”. Truth-finding is not the exclusive determinant of this assessment, butthe exclusion of, as here, relevant and reliable evidence (and, indeed, evidence that is essential to the prosecution) risks undermining boththe truth-seeking function of the justice system and the public appearance of fairness.

Accordingly, this line of inquiry generally supportsadmission of the impugned evidence, as it does in the immediate case. (

v) Balancing the Interests [31] As said by the Court of Appeal in R. v. Ting, 2016 ONCA 57 , [2016] O.J. No. 307, at para. 85: Grant does not stipulate a mechanical balancing exercise. All an application judge can do is consciously bear in mind the three factorsand determine as best she can whether the admission or the exclusion of the evidence better serves the interest of maintaining justice in asociety ruled by law. This balancing exercise is not overly-challenging in the case at bar. None of the three necessary assessments favour exclusion of theBAC test results.

Assuming a breach of the defendant’s Charter-protected interests, he has nonetheless failed to persuade me that theprospective repute of the administration of justice is better served by exclusion of the BAC readings. Accordingly, the Certificate isadmitted. D. CONCLUSION [32] Defence counsel fairly concedes that admission of the Certificate establishing the defendant’s excessive BAC at the time of hisdriving completes the evidentiary foundation necessary to establish the defendant’s guilt. As I have declined to exclude the Certificate,the defendant’s conviction inevitably follows.

Released on April 18, 2016 ___________________ Justice Melvyn Green