2013 QCCA 2160, 2013 QCCA 2160

Unofficial English Translation Anderson c. R. 2013 QCCA 2160 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-002782-121 (100-36-000274-110) (100-01-013679-093) DATE: December 12, 2013 CORAM: THE HONOURABLE LOUIS ROCHETTE, J.A. ANDRÉ ROCHON, J.A. DOMINIQUE BÉLANGER, J.A. FRÉDÉRICK ANDERSON APPELLANT – Appellant v. HER MAJESTY THE QUEEN RESPONDENT – Respondent JUDGMENT [ 1 ] The appellant appeals from a judgment of the Superior Court, Criminal and Penal Division, District of Rimouski (the Honourable Mr.

Justice Richard Grenier) rendered on January 26, 2012, that dismissed the appeal from a judgment of the Court of Quebec, Criminal Division (the Honourable Judge Richard Côté) rendered on February 11, 2011, that found the appellant guilty of driving a vehicle with a blood alcohol concentration over 80 milligrams per 100 millilitres of blood. [ 2 ] For the reasons of Bélanger, J.A., with which Rochette and Rochon, JJ.A. agree, THE COURT : [ 3 ] DISMISSES the appeal. LOUIS ROCHETTE, J.A. ANDRÉ ROCHON, J.A. DOMINIQUE BÉLANGER, J.A.

Mtre Rodrigue Joncas Michaud Joncas Bousquet Fortin & Lestage For the appellant Mtre Luc Cyr Director of Criminal and Penal Prosecutions For the respondent Date of hearing: September 26, 2013 REASONS OF BÉLANGER, J.A. [ 4 ] Late at night on April 25, 2009, police officers observed a vehicle being driven by someone who was not wearing a seat belt.

[ 4 ] Late at night on April 25, 2009, police officers observed a vehicle being driven by someone who was not wearing a seat belt. They decided to stop the vehicle, which was moving quickly, giving the impression that the driver was trying to flee. [ 5 ] After losing sight of the vehicle, the police officers spotted it parked diagonally across a spot in the parking lot of a nearby CEGEP. One of the officers went to speak with the driver and informed him of the offence he had committed by failing to wear his seat belt. The accused was somewhat aggressive with the police officer.

The officer noted a strong odour of alcohol on his breath. The accused did not answer routine questions, and he appeared to be [ translation ] "stoned". He fumbled as he took out his papers; his movements were slow and his eyes glassy. [ 6 ] The accused was placed under arrest and ordered to accompany the police officers to the station to undergo breathalyzer tests.

The accused repeatedly asked why he was being arrested, even after he had already been told. * * * * * Judgments of the Court of Quebec [ 7 ] On June 16, 2010, the judge dismissed the motion to exclude the evidence from the two breathalyzer tests showing concentrations of 141 mg/100 ml and 142 mg/100 ml. [ 8 ] He found that it was lawful to stop the appellant because the intervention concerned a violation of the Highway Safety Code . [1] He found, however, that the police officers violated the appellant's rights by subsequently arresting him because he found that nothing in the appellant's conduct reasonably suggested that he had driven his vehicle under the influence of alcohol. [ 9 ] After considering the criteria of subsection 24(2) of the Canadian Charter of Rights and Freedoms , [2] the judge found that there was no reason to exclude the breathalyzer evidence because admitting it would not be likely to bring the administration of justice into disrepute. [ 10 ] On February 11, 2011, the appellant was convicted of driving a vehicle with a blood alcohol concentration over 80 milligrams per 100 millilitres of blood.

The judge rejected the argument that the presumption of identity did not apply without evidence that the police officers had reasonable grounds to believe that the offence had been committed. Superior Court Judgment [ 11 ] The Superior Court judge refused to intervene, applying the strict standard of review used in R. v. Côté [3] and recognizing that if the trial judge had analyzed the relevant factors, this standard of review required him to show a high level of deference. He concluded that the trial judge's decision was reasonable.

Grounds [ 12 ] It is appropriate to rephrase the issues raised as follows: 1) Did the appellate judge err by refusing to intervene in the trial judge's decision not to exclude the breathalyzer evidence under subsection 24(2) of the Charter ? 2) Did the appellate judge err by applying the principles in Bernshaw ? [4] Analysis First question: Did the appellate judge err by refusing to intervene in the trial judge's decision not to exclude the breathalyzer evidence under subsection 24(2) of the Charter ? [ 13 ] The appellant alleges that the appellate judge did not really verify whether, in his examination, the trial judge had taken into consideration the factors applicable under subsection 24(2) of the Charter . [ 14 ] Two specific criticisms are made: The trial judge presumed that the police officer was acting in good faith, and he failed to weigh the factors outlined in Grant . [5] In my view, these criticisms are unfounded. [ 15 ] In Grant , the Supreme Court set out the factors relevant to the test under subsection 24(2) of the Charter : 24. ...

(2) Lorsque, dans une instance visée au paragraphe (1), le tribunal a conclu que des éléments de preuve ont été obtenus dans des conditions qui portent atteinte aux droits ou libertés garantis par la présente charte, ces éléments de preuve sont écartés s’il est établi, eu égard aux circonstances, que leur utilisation est susceptible de déconsidérer l’administration de la justice. 24 . ...

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[ 16 ] The Supreme Court thus put an end to the all-but-automatic exclusionary rule for conscriptive evidence that is not otherwise discoverable.

It also reiterated one of its earlier observations whereby a fair trial is "one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness to the accused" . [6] [ 17 ] After noting that the purpose of subsection 24(2) of the Charter is to maintain the good repute of the administration of justice at all stages (investigation, charge, judgment) and to uphold Charter rights and the rule of law, the Supreme Court reiterated that the long- term maintenance of the integrity of and public confidence in the justice system must be the focus. [7] [ 18 ] This is the context in which the Supreme Court urges trial judges to consider three questions and, to determine whether using evidence obtained in breach of the Charter brings the administration of justice into disrepute, to weigh the effect of admitting the evidence on society's confidence in the justice system: [71] A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2) , viewed in a long-term, forward-looking and societal perspective.

When faced with an application for exclusion under s. society’s interest in the adjudication of the case on its merits. 24(2), 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 state misconduct), (2) the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual 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 the circumstances, admission of the evidence would bring the administration of justice into disrepute.

These concerns, while not precisely tracking the categories of considerations set out in Collins , capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence. (Emphasis added.) [ 19 ] The first question requires an evaluation of the seriousness of the state conduct, not to punish the police or deter other breaches, [8] but to preserve public confidence in the principle of the rule of law.

Since conduct resulting in violations varies in seriousness, it therefore follows that "'[g]ood faith' on the part of the police will also reduce the need for the court to disassociate itself from the police conduct". [9] [ 20 ] There is a broad spectrum of possible Charter violations, from inadvertent or minor breaches to significant breaches characterized by deliberate acts committed in flagrant disregard of the rights of accused. The analysis requires a consideration of any possible extenuating circumstances, such as the need to prevent the disappearance of evidence.

In this respect, I would say that there is a certain urgency to the taking of breath samples: Police officers do not have unlimited time in which to carry out their investigations and obtain breath samples. [ 21 ] The appellant alleges that the trial judge erred in principle by assuming that the police officer acted honestly and in good faith and that, as a result, he incorrectly evaluated the seriousness of the conduct that violated the appellant's rights.

The judge presumed that the police officers were in good faith, whereas the good faith of police officers may never be presumed but must be demonstrated by the prosecution. He also found that because he repeatedly asked what the grounds for his arrest were, the police officers' attitude demonstrates that they deliberately neglected to use the approved screening device (ASD), which would have allowed them to raise their suspicions to reasonable grounds. [ 22 ] It does not appear from the judgment rendered that the trial judge presumed that the police officers were in good faith.

Nor does it appear from the evidence that the police officers deliberately neglected to use the approved screening device. In actual fact, the evidence is silent on this point. [ 23 ] The judge analyzed the evidence before him and, in the absence of a palpable and overriding error or an error of fact, there was no reason for the Superior Court to carry out a new assessment. No such error has been demonstrated.

On the evidence, the trial judge found that: ➢ The accused was a little aggressive with the police officer. ➢ Officer Fortin noted a strong odour of alcohol on the accused's breath. ➢ When the officer asked him a few routine questions, the accused did not answer. The officer observed that it was as if he were [ translation ] "stoned". ➢ The accused fumbled when taking out his documents.

His movements were slow, his eyes glassy. ➢ The accused was arrested because of his general attitude and the officer's observations. [ 24 ] After assessing this evidence, Côté J. made the following conclusion: [ translation ] [27] In this case, there is nothing indicating that the police officer's subjective belief was not sincere or that he was in bad faith. The officer based himself on certain information that, although insufficient to proceed with a lawful arrest, raised suspicions that an offence was being committed. [28] The Court adopts the observations of Conrad Chapdelaine, J.C.Q. in R. c.

Gerrior , [2009] QCCQ 15307: [translation]

46 Without wishing to trivialize the fact that, in this case, the police officers did not have sufficient reasonable grounds and that they should have used the approved screening device to confirm their suspicions, the Court nevertheless finds that their conduct was not so unacceptable as to be considered in bad faith.

Their observations led them to believe (however wrongly) that they had sufficient reasonable grounds. 47 This inappropriate conduct and the abusive nature of the demand given without reasonable grounds (the police officers should have known that their suspicions did not justify their actions) are not sufficient to find that this evidence should be excluded. [ 25 ] Despite the expression [ translation ] "there is nothing indicating", it is not accurate to state that the judge presumed that the police officer was in good faith.

It was simply his assessment. [ 26 ] Admittedly, in some circumstances – such as those in Harrison [10] and Boudreau-Fontaine [11] – it has been found that the breach is aggravated when the police officer delivers misleading testimony before the Court.

The trial judge came to the contrary conclusion, however, and the appellate judge must respect this finding and not substitute his own assessment of the police conduct for that of the trial judge. [12] At the risk of repetition, it is trite law that an appellate judge's intervention is appropriate only when the trial judge has not considered the proper factors, which is not the case here. [13] [ 27 ] The appellate judge found that the applicable standard of review is that again reiterated by the Supreme Court in R. v.

Côté , [14] which reaffirms the principles in Grant [15] and Beaulieu [16] whereby appellate judges owe considerable deference to the findings of trial judges if the latter have considered the proper factors and their findings are reasonable. Recently, in R. v. Vu , [17] the Supreme Court restated the same principles once again. [ 28 ] While the appellant may not agree with the trial judge's conclusion, it is clear that the appellate judge verified whether the judge on the merits had considered the proper factors.

The appellant's complaint that the appellate judge should have reviewed the trial judge's analysis of the first stage of the Grant test is therefore without merit. [ 29 ] As this Court pointed out in R. v. Delisle , [18] the fact that neither the powers conferred by subsection 254(2) of the Criminal Code nor the ASD were used does not necessarily reveal flagrant disregard for the rights of the accused.

Nor does the failure to use the ASD create a presumption of bad faith on the part of the police officer toward the appellant, especially where there are subjective grounds to believe that impaired driving had taken place. Subsection 254(2) Cr. C . confers on peace officers the power to collect breath samples, but it does not require them to do so. [19] [ 30 ] As for the impact of the breach of the accused's rights on his bodily integrity, the trial judge described this as minor, and this was upheld by the appellate judge.

It is settled law that breath samples are obtained through a "relatively non-intrusive" procedure, rendering the violation of the rights of the accused less egregious. [20] This disposes of the second stage of the Grant test. [ 31 ] Finally, the appellant concedes that the interests of society weigh in favour of including the evidence, thus disposing of the third stage of the Grant test.

Breath samples are generally reliable evidence, as opposed to compelled statements, for example, and this tips the scale in favour of their inclusion. [21] [ 32 ] The appellant also believes that the trial judge did not carry out the balancing exercise required after the consideration of the three factors in Grant . The balancing of the three relevant factors was recently referred to by this Court in R. v. Boudreau-Fontaine , [22] per Doyon, J.A.: [translation] Balancing exercise [69] Balancing all the relevant factors is usually a matter for the trial judge.

Here, the judge did not do so, wrapping up his analysis after noting that the respondent had been conscripted against himself. [70] This is not a quantitative exercise, as noted by the Chief Justice in R. v. Harrison , supra : [36] The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case.

The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth- seeking interests of the criminal justice system. Nor is the converse true.

In all cases, it is the long-term repute of the administration of justice that must be assessed. [ 33 ] In that case, while the first and second factors favoured exclusion, the third favoured admission, and hence the need to weigh all the relevant factors along with the extenuating circumstances.

Despite the high degree of reliability of the unlawfully gathered evidence, the balancing exercise led the Court to find that the importance of the state's respect for Charter protections clearly prevailed over the price to be paid by society in the event of an acquittal: [ translation ] [71] The first and second tests clearly favour the exclusion of evidence.

Several rights have been infringed: first there was the respondent's detention which lasted a relatively long time, then the lack of reasonable grounds, the absence of mitigating circumstances, the trial judge's rejection of the officer’s testimony on a significant point, the high level of expectation with regard to the privacy of computer data, and the respondent's being conscripted against himself by a court order. In these circumstances, and despite the very high reliability of the excluded evidence, the importance of the State’s respect for the protections afforded by the Charter clearly outweighs

the price society will have to pay for an acquittal. [ 34 ] This case clearly differs from Boudreau-Fontaine and Harrison in that the trial judge found that each of the three factors led to the same conclusion: in light of the circumstances, excluding the evidence would have brought the administration of justice into disrepute. [23] [ 35 ] This was also the appellate judge's conclusion in finding that the appellant's arrest was lawful and that the police had sufficient suspicion to justify a screening test.

This distinguishes this case from Harrison : [ translation ] [37] Unlike Harrison , the appellant's arrest was lawful, with which the parties agree, and the police officers had strong suspicions that amply justified a screening test. [ 36 ] The Superior Court judge was therefore well founded not to interfere with regard to the first question. Second question: Did the appellate judge err by applying the principles in Bernshaw ? [ 37 ] After the trial judge dismissed the motion to exclude evidence and during the trial on the merits, the appellant argued that the presumption of identity in paragraph 258(1)(

c) Cr. C. does not apply if, at the time of the arrest, the peace officer did not have reasonable grounds to believe that the accused was committing or had committed the offence in

section 253 Cr.

C . [ 38 ] The appellant maintains this argument, even though his motion to exclude has been dismissed. [ 39 ] After rejecting the line of cases [24] whereby the presumption of identity is inapplicable when proof of reasonable grounds has not been made, the trial judge found that, where an accused has complied with an order to provide breath samples, the consequences of a lack of reasonable grounds on the part of the peace office should be debated in the context of a motion to exclude evidence: [ translation ] [24] Where an accused complies with an order to provide breath samples, the consequences of a lack of reasonable grounds on the part of the peace officer who gave the order pursuant to subsection 254(3) should be debated in the context of a Charter claim, whether in the context of a motion to exclude the evidence under subsection 24(2) or another claim for relief under subsection 24(1) . [25] If the Charter claim is dismissed, the accused is in the same situation as an accused who has not invoked the Charter , and Rilling applies.

The certificate of analysis is admissible in evidence, and the presumptions apply. [25] * * * * * [ 40 ] Paragraph 258(1)(

c) Cr. C . establishes a presumption of identity between the blood alcohol concentration at the time of the arrest for the purpose of counteracting the variation that may exist because of the natural process of alcohol elimination. [26] Absent this presumption, the prosecution is required to prove that the results represent the blood alcohol level at the time of the offence, in all likelihood through expert evidence. [ 41 ] For the presumption to apply, the provision states that breath samples must have been taken pursuant to an order given under subsection 254(3) Cr. C. , which for its part provides the following:

254. [...] Prélèvement d’échantillon d’haleine ou de sang

(3) L’agent de la paix qui a des motifsraisonnables de croire qu’une personne est entrain de commettre, ou a commis au cours destrois heures précédentes, une infraction prévue àl’article 253 par suite d’absorption d’alcool peut,à condition de le faire dans les meilleurs délais,lui ordonner :

a) de lui fournir dans les meilleurs délais leséchantillons suivants : […]

b) de le suivre, au besoin, pour que puissent êtreprélevés les échantillons de sang ou d’haleine. 254. … Samples of breath or blood

(3) If a peace officer has reasonable grounds tobelieve that a person is committing, or at anytime within the preceding three hours hascommitted, an offence under

section 253 as aresult of the consumption of alcohol, the peaceofficer may, by demand made as soon aspracticable, require the person (

a) to provide, as soon as practicable, … (

b) if necessary, to accompany the peace officerfor that purpose. [42] We reiterate that, in Rilling,[27] the Supreme Court establishes that the lack of reasonable and probable grounds to believe thatan individual's ability to drive is impaired by alcohol does not mean that the incriminating certificate of analysis is inadmissible if thedriver complies with the breathalyzer demand.[28] In other words, it is not necessary to prove reasonable and probable grounds for thepresumptions in the Code to apply. [43] Since Rilling was rendered before the advent of the Charter, the issue of its post-Charter applicability has been considered. [44] In 1994, in Bernshaw,[29] Cory J., dissenting,[30] stated his opinion that the accused should henceforth be required to make aclaim under subsection 24(2) of the Charter because breathalyzer results should not be automatically excluded: [40] The British Columbia Court of Appeal in this case held that Rilling was no longer good law since it was decided prior to theCharter. [41] In my view, the Court of Appeal erred in taking this position.

Certainly the Charter is relevant. An accused may be able to establishon the balance of probabilities that the taking of breath samples infringed his Charter rights. For example, it might be contended that therequisite reasonable and probable grounds for making the breathalyzer demand were absent, and that, in the circumstances, theadmission of those breathalyzer results would bring the administration of justice into disrepute. In those circumstances, the breathalyzerevidence might well not be accepted.

Yet, where an accused complies with the breathalyzer demand, the Crown need not prove as part ofits case that it had reasonable and probable grounds to make that demand. Rather, I think, the onus rests upon the accused to establish onthe balance of probabilities that there has been a Charter breach and that, under s. 24(2), the evidence should be excluded. There shouldnot be an automatic exclusion of the breathalyzer test results. [42] Several provincial appellate courts have taken the position that the Rilling case is still applicable in appropriate circumstances.

Thatis to say where breath samples are obtained without reasonable and probable grounds for the demand, the evidence should only beexcluded upon an application by the accused to exclude it pursuant to s. 24(24(2) of the Charter. See R. v. McNulty (1991), 35 M.V.R. (2d) 27 (Ont. C.A.); R. v. Linttell, (1991), 1991 ABCA 152 , 64 C.C.C. (3d) 507 (Alta. C.A.); R. v. Dwernychuk (1992), 1992ABCA 316 , 77 C.C.C. (3d) 385 (Alta. C.A.), leave to appeal refused, [1993] 2 S.C.R. vii; R. v. Marshall (1989), (NS CA), 91 N.S.R. (2d) 211 (C.A.); R. v. Langdon (1992), (NL CA), 74 C.C.C. (3d) 570 (Nfld.

C.A.); R. v.Leneal (MB CA), 68 Man. R. (2d) 127 (C.A.). This, I think, is the approach that should be adopted. (Emphasis added.) [45] In 2000, in R. v. C.L.,[31] Rochette J.A., relying on the comments of Cory J. in Bernshaw, opined that an accused who hascomplied with the breathalyzer demand and who has not objected to the filing of the certificate is precluded from arguing against it,noting that it falls to the accused to persuade the judge that a Charter right has been breached.

In that case, however, the accused had notsought the exclusion of the tests from the evidence or attempted to prove that the reasonable grounds were insufficient or that his rightshad been breached, limiting himself to a single ground concerning the prosecution's burden of proof. [46] In R. v. Charrette,[32] the Court of Appeal for Ontario also found that Rilling still applied and that, in the absence of a Chartermotion to exclude under subsection 24(2), the prosecution is not required to prove the peace officer's reasonable grounds to benefit fromthe presumption of identity.

In that case, however, Moldaver J.A. refrained from deciding whether the presumption of identity could

apply in an analysis under subsection 24(2) of the Charter . [ 47 ] I see no reason to set aside the position taken by this Court and by the Court of Appeal for Ontario: Rilling is still applicable, and when breath samples are obtained without reasonable grounds for the demand, the evidence may be excluded only if the accused has made such a claim under subsection 24(2) of the Charter . [ 48 ] A final question remains: Does the presumption of identity continue to apply when the motion to exclude the evidence has been dismissed? [ 49 ] In my opinion, the trial judge was correct in saying that when a motion to exclude evidence is dismissed, [ translation ] “the accused is in the same situation as an accused who has not invoked the Charter , and Rilling applies.

The certificate of analysis is admissible in evidence, and the presumptions apply”. [33] [ 50 ] The logical outcome of admitting the breathalyzer evidence is the application of the presumption of identity. [34] [ 51 ] To find otherwise would indirectly undermine the still-applicable principles in Rilling and considerably reduce the effect of the judgment rendered under subsection 24(2) of the Charter . [ 52 ] In this case, the appellant filed his motion to exclude the evidence, which was dismissed for the reasons outlined above.

Having complied with the breathalyzer demand, and the evidence having been ruled admissible, he may not ask the Court during closing arguments of the trial on the merits to revisit the issue as to whether there were reasonable grounds to order the tests as a way of challenging the presumption of identity. [ 53 ] As for the appellate judge, he was of the opinion that this Court, in R. v. C.L ., had already decided whether Rilling still applies. Strictly speaking, this is accurate. The appellant has not demonstrated any reason to review this finding. [ 54 ] I would therefore dismiss the appeal.

DOMINIQUE BÉLANGER, J.A.