R. v. Schwarz, 2017 ONCJ 786

ONTARIO COURT OF Justice Central West Region CITATION: R. v. Schwarz, 2017 ONCJ 786 DATE: November 21, 2017 Her Majesty the Queen - and - Marie-Louise SCHWARZ Proceedings commenced 28 June 2017 Interim Ruling on Charter issues and Submissions 22 September 2017 Decision issued 21 November 2017 Appearances: Ramage, S. for the prosecution Cardy, M. for the defence Statutes Considered or Cited: Charter of Rights and Freedoms Criminal Code R.S.C., 1985, c. C-46 Highway Traffic Act, R.S.O. 1990, c. H.8, as amended (“HTA”) O. Reg. 340/94, s. 6(1), pursuant to the HTA Cases Considered or Cited R. v.

Albertini, [2008] O.J. No. 1511 R. v. Collins, (SCC), [1987] S.C.J. No. 15 R. v. D.K., [2006] N.B.J. No. 406 R. v. Germanis, [2001] O.J. No. 2935 R. v. Nyaata, 2005 ONCJ 454 , [2005] O.J. No. 4754 R. v. Quansah, [2012] ONCA 123 R. v. Rossi, [2017] O.J. No. 3494 R. v. Smith, (ON CA), [1996] O.J. No. 372 R. v. Torsney, [2007] ONCA 67 York (Regional Municipality) v. McGuigan, 2017 ONSC 436 , [2017] O.J. No. 296 Tut v. RBC General Insurance Co., [2011] ONCA 644

Decision 1 . The defendant was charged by way of a

Part I Certificate of Offence, that on or about the 13 th day of August 2016, in City of Hamilton, she did commit the offence of “Young Driver – Blood Alcohol Above Zero”, contrary to s.44.1(5) of the HTA . 2 .

Defence brought a motion for relief pursuant the Charter of Rights and Freedoms , under sections 7 (right to life, liberty and security of the person), 8 (right to protection from unreasonable search or seizure), 9 (right not to be arbitrarily detained or imprisoned), 10(a) (right to be informed of the reason for arrest), and 10(b) (right to retain and instruct counsel and to be advised of that right without delay). 3 .

For the reasons set out below in an abbreviated decision issued orally on 22 September 2017, I granted an order excluding the prosecution evidence in relation to the results of a breath sample. 4 . Upon receiving my decision in relation to the Charter issues, defence advised it would call no evidence and I then received submissions. For the additional reasons below, I am dismissing the charge against the defendant. Background and “Evidence” 5 . The matter proceeded before the court on the basis of a blended trial with respect to prosecution evidence and voir dire with respect to Charter issues. 6 .

There is substantial consistency in the evidence regarding what occurred [1] . The defendant was driving a motor vehicle on the date, time and location in question. There is no issue that she was a licenced driver, and, with a status as a “young driver”, was required to maintain a blood alcohol content of zero while driving [2] . 7 . While driving, she was stopped for investigation. As a result of the investigation, she was charged with the offence. 8 . It is common ground between the parties that there were additional occupants in the car.

Defence admits that the occupants were impaired (which is why the defendant was driving them, serving as a designated driver) and that shortly after the start of the interaction between the defendant and the investigating officer, these passengers exited the vehicle and became unruly. The defendant assisted in keeping their involvement peaceable, requiring at least some time. 9 . The investigating officer smelled an odour of alcohol “on her clothes and her breath” and that she had explained to him that she had spilled a beer on her clothes earlier in the day.

In response to officer’s question about alcohol consumption he understood she had not had anything to drink during the fifteen minutes prior to his encountering her. 10 . He advised he did not have any other grounds of impairment. 11 . During the voir dire, the defendant conceded that she drank alcohol several hours earlier that day but believes that such consumption was long enough removed from this investigation that any alcohol in her system would have been fully processed or digested.

Of course, given that this evidence was not admitted to the trial proper, I do not rely on it for the purpose of this decision, but note it for context. 12 . The officer made a demand for a breath sample, pursuant to section 48(1) of the HTA (in respect to possible Criminal Code of Canada charges). 13 . The reading obtained from the Approved Screening Device (“ASD”) registered a “Warn”, indicating that the defendant had a blood alcohol content above zero. She was charged with the offence, her licence was seized for a statutory seven day suspension, and her father was required to attend to remove the car. 14 .

The investigating officer acknowledged that he did not advise the defendant of her right to instruct and retain counsel. He advises he has since changed his practice and now provides this caution. Issues to be Decided 15 . There are a number of issues that underpin the allegations of breaches of Charter rights, from the defence perspective.

These include that: a. the reason for the stop is claimed to be that police received and were acting on a report of suspected impaired operation; there has been no disclosure of the content of the call to police and therefore the reason for the stop is suspect; failure to disclose the call to police is a breach of the duty to disclose and thus a breach of s.7 of the Charter b. upon forming the grounds to believe that the defendant had a blood alcohol content above zero, the officer made a demand for a breath sample, which, it is alleged, amounts to a warrantless search, thus being the basis for the allegation of a breach of s.8 of the Charter c. when the driver pulled to the side of the road and exited her vehicle, she asked the reason for the stop and the officer advised he “just wanted to speak” with her; she was not advised that she was being investigated for a suspicion of impaired operation, thus giving rise to the allegation of the breach of s.10(

a) of the Charter d. upon forming the grounds to demand a roadside screening, the investigating officer acknowledged he did not have an approved

screening device (”ASD”) at hand and that there would be a delay in obtaining a breath sample; the defendant did not understand she could contact counsel, even though she admits in her affidavit of evidence that the officer read her “something that sounded scripted” when advising she would be asked to provide a breath sample upon arrival of an ASD; the alleged failure to advise the defendant of her right to retain and instruct counsel serves as the basis for the for the allegation of the breach of s.10(

b) of the Charter e. for the period of time between the determination by the officer to make a breath demand and the actual arrival of the ASD, she was not free to leave and was therefore arbitrarily detained, thus being the ground for allegation of the breach of s.9 of the Charter Analysis and Reasoning 16 . The issue of disclosure was addressed during the appearance in court immediately prior to the trial date.

In the course of that appearance, the then presiding justice commented that the record of the call to police which triggered the investigation was a third party record and not produceable by the prosecution [3] . Although this issue was included in the statement of issues and factum produced by the defence, it was not addressed by the defence in submissions before me; indeed, it was indicated that the parties were relying on the justice presiding in the attendance prior to trial. 17 . The defence submitted a comprehensive factum in support of its position, including the disclosure issue.

However, defence elected not to pursue the disclosure issue before me, apparently relying on the comments or decision set out above. Extensive case law was referenced, all in relation to impaired operation charges under the Criminal Code of Canada . 18 . The prosecution position is that there was no breach of the defendant’s Charter rights. The prosecution view remains that the investigating officer was allowed by operation of the HTA to conduct a traffic stop to investigate the driver’s sobriety [4] . I accept this view.

It is notable that the issue as framed by the defence (but not advanced before me) was that the issue related to the reason for the stop gave rise to a disclosure issue and not as to whether the authority to stop to investigate possible issues of or concerns for impairment is compliant with the Charter . 19 . The police officer had only a very short time during which to observe the driving behaviour of the defendant himself.

It is clear that the intent of the officer was to conduct a traffic stop to investigate possible issues of sobriety of the driver (based on the call to police) and he was operating within the scope of statutory authority. 20 . As the investigating officer had not formed a grounds for arrest or to charge the defendant at the onset of the interaction between himself and the driver, he did not caution the defendant. The defendant’s own evidence is that, upon forming grounds for making a breath demand, the officer read her “something that sounded scripted”.

Up until that point, it would have been unnecessary for the officer to explain the reasons for his investigation. 21 . The defendant indicated that she asked the officer whether she was under arrest or free to leave when he first approached her. Apparently, she had at least some idea as to her rights but elected not to exercise them. She offered no explanation as to why, if she had not been told she was under arrest, she did not try to leave. She simply asserted it was her belief she was unable to do so. 22 . The defendant acknowledges that she had a cell phone available to use for a call for legal advice.

She offered no basis for the belief she says she had that she could not use it to call for legal advice, or, indeed, if she had contact information for a lawyer at the ready. 23 . The authority to demand a breath sample (in the case of a young driver) pursuant to the HTA is set out comprehensively in sections 48 and 48.2.1 .

Section 48 deals with investigations under the Criminal Code of Canada in relation to impaired operation of a motor vehicle and

section 48.2.1 specifically deal with young drivers. 24 .

Section 48 allows an investigating officer to make a demand for a breath sample using an ASD.

Section 48.2.1(3) allows the officer to rely on the results of such a sample as a basis for demanding the surrender of a licence, in the event that the subject of an investigation produces a sample that results in a “Warn”, as in this case. Subsection 48.2.1(21) makes it an offence for a young driver to refuse to comply with a demand made to her by a police officer. 25 . It is clear that, upon being faced with the breath demand, the defendant was either required to satisfy the demand or face either a Criminal Code of Canada or HTA charge for failing to provide a breath sample. 26 . In R. v. Rossi, M.

Henschel J. refers to R. v Grant and writes In respect of the degree of impact from the violation, the Supreme Court in Grant held that breath sample evidence is relatively non- intrusive and involves minimal interference with a suspect's bodily integrity. In Grant , McLachlin CJC and Charron J., writing for the majority of the court, described the collection of breath sample evidence in drinking and driving cases as a "relatively non-intrusive" procedure, suggesting that the gathering of such evidence has a slight impact upon the Charter-protected interests of the accused.

Accordingly, the second factor in the 24(2) analysis will usually favour the admission of the evidence of the results of such breath samples. Indeed, the Supreme Court generalized that in the absence of some egregious, deliberately inflicted Charter violation, with a "high" impact upon the accused's privacy, bodily integrity and dignity, reliable breath sample evidence will "often" be admitted under s. 24(2) of the Charter, given that the "method of collection is relatively non-intrusive". 27 . Adopting these reasons, I would find there is no breach of s.8 of the Charter . 28 .

Upon forming the grounds to make a demand for a breath sample using an ASD and the defendant being told that she was going to be required to provide a breath sample, she had knowledge of the reason for the continuing investigation and detention. For this reason, I find that there is no breach of s.10(

a) of the Charter .

29 . Given the statutory framework that allows a police officer to conduct investigations into the possibility of alcohol affecting a driver’s ability to operate a motor vehicle and the regime authorizing use of an ASD to measure blood alcohol content, I find that there is no ground for a finding that the detention was arbitrary. 30 . The evidence of both the officer and the defendant establish that the passengers in the car with the defendant at the time of the investigation exited the car and became unruly. There was a period of time needed for the ASD to arrive on scene in order to take the breath sample. 31 .

The officer concedes he did not advise the defendant of the right to retain and instruct counsel. He explained he had received no training as to the need to do this, however, as a consequence of his experience with this case has now revised his practice. 32 . However, the cases provided by both the defence and the prosecutor indicate that the duty pursuant to s.10(

b) to advise a person of his or her right to retain and instruct counsel and of the right to be informed of that right align significantly. The principles set out in R. v. Torsney , relied upon by the prosecutor, can perhaps best be understood as having been refined or clarified in or its successor, R. v. Quansah , relied upon by the defence. 33 . In paragraph 12 in R. v.

Torsney , the Court held … the question to be asked is whether, in the circumstances, the police officer was in a position to require that a breath sample be provided "forthwith", that is, before there was any realistic opportunity for the appellant to consult counsel 34 . This is further explained in paragraph 13, as follows: In coming to this conclusion, we consider it important to draw a distinction between a detainee having "a chance to call counsel" and a detainee being able to "consult with" counsel.

The trial judge was under the impression that in deciding whether, in the circumstances, there was a realistic opportunity for the appellant to consult counsel, all that was required was that he be able to "call" counsel in the few minutes it took for the ASD to arrive and be readied for use. 35 . In R. v. Quansah, the Court held 45 In sum, I conclude that the immediacy requirement in s. 254(2) necessitates the courts to consider five things. First, the analysis of the forthwith or immediacy requirement must always be done contextually.

Courts must bear in mind Parliament's intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights. 46 Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion. 47 Third, "forthwith" connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible

interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee's response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2). 48 Fourth, the immediacy requirement must take into account all the circumstances.

These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty.

Any delay not so justified exceeds the immediacy requirement. 49 Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee's s. 10(

b) rights before requiring the sample. If so, the "forthwith" criterion is not met. 36 . In this case, I am required to balance the concerns for balancing individual and community rights. 37 . The demand was made as soon as the officer formed reasonable suspicion that the driver had alcohol in her system. There was a delay giving effect to the demand, based on two primary factors: that the officer did not have an ASD at hand and one had to be brought to the scene, and the actions of passengers requiring the attention of the officer and the cooperative assistance of the defendant. 38 .

The time lapse between forming the grounds to demand a roadside screening and giving effect to the demand was, at most, some seventeen minutes. Some of that period was devoted to arranging for the delivery of an ASD, interacting with the unruly passengers, and demonstrating the use of the device on arrival. It is clear from the evidence that the officer had no specific information as to how long it would take for the ASD to be delivered. 39 . An undetermined part of that period is unexplained. 40 .

Perhaps most critically, it is clear that the officer did not have a practice of advising detainees of their right to counsel, and did not do so in this case. He offered no explanation as to how this case differed from others in which, presumably, he did inform detainees of their right to counsel. As indicated above, the officer now advises that he has changed his practice and now advises detainees of their right to counsel in circumstances such as arise in this case.

It is troubling that this could lead to the inference that any practice regarding if and when an officer advises a detainee regarding the right to instruct and retain counsel is left to individual officers, rather than being a result of service-wide training protocol. 41 . In all of the circumstances, I am satisfied that the Charter right of the defendant to be advised of her right to counsel was infringed [5] .

42 . As submitted by the parties, I must conduct an analysis as set out in paragraph 71 of R. v. Grant , as follows: 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. 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. 43 .

In regard to the seriousness of the Charter-infringing state conduct, I start by putting the issues in context. 44 . It is notable that the charge before me is a regulatory offence and not a Criminal Code of Canada matter. The prosecutor and defence agreed in submissions that the offence is one of absolute liability, meaning that the defence is unable to and does not rely on a due diligence defence. The prosecution is required to prove the elements of the charge beyond a reasonable doubt and, but for in a few circumstances, is entitled to a conviction. 45 .

The statutory regime requires a young driver suspected of driving while having a blood alcohol content above zero to provide a breath sample upon demand. Almost all of the case law in regard to demands for breath tests and rights to be advised of the right to counsel emanate from the related and corresponding provisions regarding collection of breath samples while investigating suspected impaired operation pursuant to the Criminal Code of Canada . In that context, which leads to more onerous penal consequences, the process of breath demands has survived Charter challenges. [6] 46 .

The officer’s evidence evinces nothing to suggest that the action was deliberate. At the same time, it is clear that he had received no training in regard to advising detainees regarding the right to be advised of their rights to counsel in circumstances such as these. 47 . The first element of the Grant analysis favours exclusion of the evidence.

While there is nothing apparently deliberate about the actions of the officer, there is nothing to suggest or indicate that he or the police service have been alive to the defendant’s rights, in particular since the enactment of the young driver provisions as part of the statutory regime, with the attendant protections, as promulgated some eight years ago. 48 .

In terms of impact, what did not figure in argument but, in my view, colours my analysis, is the regime set out in s.48 of the HTA , which vests a driver facing a demand for surrender of a driver’s licence upon providing a breath sample, to request a second test using a different device [7] . 49 . While it is presumed that drivers know the law, there is nothing in this case to suggest that either the driver or the investigating officer was alive to this right. 50 . I am particularly mindful that the driver asserted that the smell of alcohol emanated from her having spilled beer on her clothing earlier in the day.

Had she been aware of her right to request a second analysis, it may have proven exculpatory. It is not a leap, in my view, to suggest that ability to consult counsel may have informed her of the right and she may have exercised this right. 51 . For that reason, this factor tends in favour of excluding the evidence. 52 . In terms of society’s interest in the adjudication of the case on its merits, the prosecution relies on the decision of L. Pringle J. in R. v. Albertini , quoting paragraphs 28 and 29, as follows: 28 The evidence of the breath samples is critical to the Crown's case.

As I will explain below, without the readings generated by the breath samples, I would not find that the Crown had proved even the charge of impaired driving, let alone the charge of driving over 80. 29 Therefore, considering these factors along with the fact that the breach was minor, the prejudice minimal and the evidence itself otherwise entirely reliable, I find that the reputation of the administration of justice would suffer if I excluded the evidence. 53 . However, this is out in context.

Earlier in Justice Pringle’s decision, at paragraph 4(4), she writes: Absent the blood alcohol readings, I would not have found the Crown had proven that Mr. Albertini's ability to drive was impaired by alcohol beyond a reasonable doubt. However, when the high speed driving, poor judgement and inability to safely take the exit turns are all considered in conjunction with the readings which were well over the legal limit, there is little doubt that excessive alcohol was a factor in the driving.

Accordingly, there must be a finding of guilt on impaired driving as well, although I will enter a stay to avoid multiple convictions for the same matter. 54 . In that context, this case is clearly distinguishable. In this case, since the officer observed no driving behaviour that would support an inference of impairment. The officer was able to provide almost no evidence of indicia of impairment, apart from the odour of alcohol emanating from her clothes and body.

What makes this even more problematic is that the officer conceded that it might have been possible that the odour emanated from the clothing only and he might not have been able to determine whether it emanated from her breath. 55 . For that reason, I find that this factor weighs in favour of exclusion of the evidence. 56 .

Given the evidence and submissions before me, I find that the defendant has established, on a balance of probabilities, that admission of the evidence would bring the administration of justice into disrepute, and that it is appropriate to exclude the evidence from the breath sample obtained that day, on the basis that the defendant has established, on a balance of probabilities that her right to be advised of her right to counsel was not honoured.

The Merits of the Charge 57 . Upon hearing my decision with respect to the Charter issue, defence elected to call no evidence on the trial proper. Rather, defence proceeded, first, by raising two motions for non-suit or a directed verdict. These addressed issues of proof that the defendant was a young driver (there being no evidence of her age), as well as proof of her having a blood alcohol content above zero. 58 .

In addition, she gave evidence that, although she consumed alcohol earlier in the day but that the lapse in time from that consumption and driving was sufficient that the any blood alcohol would have dissipated from her system and she would have been OK to drive. 59 . As noted above, the parties both approached this case on the premise that the offence charged is one of absolute liability [8] . In reviewing that case, I had occasion to review the reasons of the Ontario Court of Appeal in Tut v. RBC General Insurance Co.

The Court of Appeal considered a decision of a lower court in a civil matter involving insurance, but expressly considered the decisions and reasons in R. v. Nyaata (relied on by the prosecutor). In discussing the nature of the offence created by O. Reg. 340/94, s. 6(1) [9] , enacted pursuant to the HTA , the Court decided that “the application of the four Kanda factors leads me to conclude that the presumption against the offence being one of absolute liability has not been rebutted. The offence is one of strict liability”.

Further, in paragraph 27 of that decision, the Court affirmed the ruling below, saying “The application judge did not err in characterizing the offence as one of strict liability.” The Court made express reference to the decision in R. v. Nyaata , effectively overturning that line of reasoning. 60 . Although the decision in Tut v. RBC General Insurance Co. was a civil matter and not arising directly out of a prosecution of a charge in Provincial Offences Court, I am satisfied that I am bound by the decision and reasons by the Ontario Court of Appeal. 61 .

As noted above, the defendant gave evidence in the course of the voir dire in relation to the Charter issues, that while she had consumed alcohol some time before the events giving rise to this charge, she was operating on the belief (apparently mistaken) that she would have metabolized any alcohol in her system and would have been safe to drive. However, she provided almost no evidence or facts as to the basis for that belief, nor did she offer any opinion evidence to support her view.

I accept that the absence of such evidence may have resulted from the mistaken belief that a defence of due diligence was not available in this case. In any event, given that this evidence was not admitted to the trial proper, nothing turns on this. 62 . After its brief submissions and responses to inquiries by the Court, defence conceded that there was at least some evidence on these points and abandoned these motions. 63 . The final defence position is that there is no admissible evidence of blood alcohol concentration.

The Prosecution relies on the officer’s observations that he detected an odour of alcohol on the breath of the defendant. In addition, the Prosecution relies on the finding in R. v. Nyaata , at paragraph 17 , in which the D. McAleer J.P. found “the evidence of the officer that she smelled a strong odour of an alcoholic beverage on the breath of the defendant together with the admission into evidence of the name of the defendant and Class G2 license status constitutes a prima facie case in this matter.” 64 . As in Nyaata , the defence called no evidence on the trial proper.

In spite of this, the defence submits that there is no direct evidence that the defendant’s blood alcohol concentration exceeded zero. 65 . It is clear that, in the context of charges under the Criminal Code of Canada , there is a statutory distinction between impairment and having a blood alcohol concentration that exceeds the legally permitted level. The procedural regime distinguishes between indicia of impairment and the presence of blood alcohol. 66 .

There are numerous cases decided pursuant to the Criminal Code of Canada where in spite of there being indicia of impairment, in which the charge of “over 80” cannot be made out on the strength of odour of alcohol. Only admissible evidence of an approved screening device can lead to an “over 80” conviction. 67 . The regime in the HTA seems to contemplate use of an ASD for the purposes of driver suspension. It does not stipulate use of such a device for establishing blood alcohol concentration levels for the purposes of s.44.1.

Does it makes sense to require that that regime be the standard for determination of blood alcohol concentration? 68 . In attempting to sort this issue out, I note that the legislature, in electing to proscribe young drivers operating with blood alcohol levels above a certain limit understood the alternative of proscribing any level of impairment . 69 . Therefore, relying on the principles of statutory

interpretation as set out in Rizzo v. Rizzo , I would be compelled to conclude, in all the circumstances, that there must be evidence of blood alcohol concentration which is different from evidence of impairment, or evidence setting out indicia of impairment. 70 . As submitted by counsel for the defence, there may be an innocent explanation for an odour of alcohol on the breath of a defendant, including recent use of a mouth wash.

It does not fall, in my view, to the defence to give evidence against a charge where there exists only prima facie evidence of an odour of alcohol, which may suffice to make a demand for a breath sample using an ASD. Only after the result of such a test has been admitted at trial would it make sense to have a defendant be required to give evidence of possible diligence to avoid conviction.

I note that even s.48.2.1 contemplates some presence of alcohol in blood as it prescribes that testing devices be calibrated to report “presence of Alcohol” only when the concentration exceeds 10mg of alcohol in 100ml of blood (s.48.2.1(14). 71 . Given the exclusion of the measure of blood alcohol concentration, and noting that the investigating officer reported no indicia of impairment, I conclude that there is no admissible evidence of BAC levels, and therefore the prosecution had failed to prove an essential element of the charge before me and the charge must be dismissed.

72 . I wish to thank the parties for their able and thorough submissions in this case. Issued at Hamilton, Ontario, November 21, 2017 His Worship Donald Dudar Justice of the Peace