R. v. Adams, 2011 NLCA 3

Date: 20110107 Docket: 10/66 Citation: R. v. Adams , 2011 NLCA 3 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : HER MAJESTY THE QUEEN APPELLANT AND : PAUL ADAMS RESPONDENT Coram: Welsh, Rowe and Hoegg, JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division, 201001T0361 Appeal Heard: October 22, 2010 Judgment Rendered: January 7, 2011 Reasons for Judgment by Welsh, J.A. Concurred in by Rowe and Hoegg, JJ.A. Counsel for the Appellant: Stephen Dawson and Jeffrey Summers Counsel for the Respondent: Jonathan Noonan Welsh, J.A.:

[1] Paul Adams was convicted of operating a motor vehicle while having a blood alcohol content exceeding .08, contrary tosection 253(1)(

b) of the Criminal Code. The trial judge rejected Mr. Adams’ submission that he had been arbitrarily detained inviolation of

section 9 of the Canadian Charter of Rights and Freedoms, and admitted evidence of the breathalyzer readings. Thatdecision was reversed by a judge of the

summary conviction appeal court who ordered exclusion of the breathalyzer evidence. In theresult, the conviction was set aside and an acquittal entered. The Crown appeals that decision. BACKGROUND [2] The trial judge determined that, within a few minutes before 3:30 a.m. on May 31, 2009, as drinking establishments wereclosing at the conclusion of their Saturday night business, a police officer drove onto the parking lot of a shopping plaza which containedseveral different businesses, including restaurants and a licensed drinking establishment (the “bar”). The officer said he saw Mr.

Adams’vehicle pull out of a “parking slot” near the bar. The trial judge accepted that the vehicle “did pull away from the vicinity of [the bar],albeit as Mr. Adams said, he wasn’t parked right in front of the front door of [the bar] when he pulled out, but it is clear that his vehiclewas being moved away from the general area of where there was a bar that would have been in the process of closing down at that hourof the night.” The officer testified that, as he drove slowly along the parking lot, he saw Mr. Adams’ vehicle turn from the lot ontoTorbay Road.

He said that, “there was no traffic coming but the turn was very slow and awkward, unusual”. The officer admitted thathe did not observe any breaches of the Highway Traffic Act. He explained that he stopped Mr. Adams “given the hour of the night, thevicinity to (sic) the bar, the fact that at that hour of the night it’s not uncommon to encounter people who’ve had too much to drink thatare out driving, and then having seen a turn that he described as slow and awkward, he believed he should pull the vehicle over,essentially to check the situation out.” After being stopped, Mr.

Adams provided breathalyzer readings of .110 and .130, the lowerreading being the one on which the trial judge relied. [3] The trial judge recognized that he had to exercise caution in relying on evidence that Mr. Adams was driving slowly andmaking what was described as an awkward, unusual turn. He said he would not condone the police using these criteria simply as “anexcuse to do what would otherwise be just a random stop”.

However, in this case, the judge went on to explain: … So when [the officer] tells me that he saw what he viewed to be an unusual hesitation before the turn and then a slow, awkward turn,and trust me, I understand how easy that is to say, but I also understand how hard it is sometimes to articulate in words visual images thatpeople see. Some people are better at it than others. The way I see it is I cannot say that it’s been shown on a balance of probabilitiesthat when he pulled over Mr. Adams just to see what was going on that that was arbitrary.

I think he had a good reason for wanting tosee what was going on, and so I find that there’s no arbitrary detention here. … [4] Taking account of all the circumstances, the trial judge concluded that Mr. Adams had not established on a balance ofprobabilities that he had been arbitrarily detained contrary to

section 9 of the Charter. The breathalyzer evidence was entered, and, onthat basis, Mr. Adams was convicted of operating a motor vehicle while his blood alcohol content exceeded .08, contrary to section253(1)(

b) of the Criminal Code. [5] On appeal, the

summary conviction appeal court judge concluded that the trial judge erred for two reasons: first, thedetention was based on nothing more than a hunch and, therefore, amounted to an arbitrary detention; and second, the trial judge failed toanalyze the evidence to identify a nexus between Mr. Adams’ driving and the criminal offence ((2010), 2010 NLTD 76 , 296Nfld. & P.E.I.R. 305). (For convenience, I will refer to the

summary conviction appeal court judge as “the appeal judge”.) ISSUES [6] The preliminary issue is whether leave to appeal should be granted. At issue in the appeal is whether the trial judge and theappeal judge erred in law by failing to apply the proper legal principles and analysis in determining whether Mr. Adams’ right not to bearbitrarily detained was violated. ANALYSIS Leave to Appeal [7] An appeal from a decision of a

summary conviction appeal court judge may be taken on a question of law alone, with leaveof the Court (section 839(1) of the Criminal Code). The test for whether leave should be granted is set out in R. v. NewfoundlandRecycling Ltd. (2009), 2009 NLCA 28 , 284 Nfld. & P.E.I.R. 153 (NLCA): [9] Thus, to obtain leave to appeal pursuant to s. 839(1): (

a) the appeal must “be taken on a ground that involves a question of law alone”, and (

b) the ground(

s) of appeal must be such that: (

i) either the ground of appeal has a “reasonable possibility of success”, or (ii) “the proposed question of law [has significance] to the administration of justice”. [8] Accordingly, it is necessary to establish criterion (

a) together with only one of either (b)(

i) or (b)(ii) to meet the test. In thiscase, all three elements are satisfied. This appeal raises questions of law regarding the correct principles to be applied in thecircumstances. Further, the language used by the trial judge and the case law relied upon by the appeal judge require consideration andclarification by this Court. In the result, leave to appeal is granted.

Section 9 of the Charter - Relevant Principles of Law [9]

Section 9 of the Charter guarantees that:

Everyone has the right not to be arbitrarily detained or imprisoned. [10] To engage this provision, a detention must be “arbitrary”. Application of

section 9 where a motorist has been detained wasconsidered by this Court in R. v. Decker (C.) (2004), 2004 NLCA 36 , 238 Nfld. & P.E.I.R. 1 (NLCA). The test is whether thepolice officer had “a demonstrable rationale ... which is sufficiently reasonable to have justified the detention”, or, put another way,“reasonable grounds that can be clearly expressed” for stopping the particular, as opposed to any, vehicle (Decker, at paragraphs 9 and13; R. v. Wheeler (F.) (2004), 2004 NLCA 53 , 241 Nfld. & P.E.I.R. 241 (NLCA); R. v. Griffin (J.M.) (1996), (NL CA), 146 Nfld. & P.E.I.R. 142 (NLCA), at paragraphs 16 and 17). [11] Whether an arrest is arbitrary within the meaning of

section 9 will depend to some extent on the context in which the detentionoccurs. The appeal judge relied on the Supreme Court of Canada decision in R. v. Mann, 2004 SCC 52 , [2004] 3 S.C.R. 59. However, in that case, the Court was dealing with the investigative detention of an individual who was walking down a neighbourhoodstreet. Iacobucci J., for the majority, began his decision by establishing the context: [1] This appeal presents fundamental issues on the right of individuals to walk the streets free from state interference, but inrecognition of the necessary role of the police in criminal investigation.

As such, this case offers another opportunity to consider thedelicate balance that must be struck in adequately protecting individual liberties and properly recognizing legitimate police functions. [12] To strike an appropriate balance between competing interests, the particular circumstances of a case constitute an integralcomponent of the analysis.

After stating, at paragraph 17, that the common law regarding arbitrary detentions should be developedincrementally to reflect “current and emerging societal needs and values”, Iacobucci J. concluded: [17] … Here, our duty is to lay down the common law governing police powers of investigative detention in the particular context ofthis case. [13] The importance of context is reiterated in the discussion of factors to be considered in assessing the reasonableness of thegrounds for a particular detention: [34] … The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, mostnotably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with,and the nature and extent of that interference … [14] One of the factors necessarily considered in Mann was a “nexus between the individual to be detained and a recent or on-goingcriminal offence” (paragraph 34).

This is clear from the facts of that case: [4] On December 23, 2000, shortly before midnight, two police officers received a radio dispatch message detailing a break andenter in progress in a neighbouring district of downtown Winnipeg. The suspect was described as a 21-year-old aboriginal male,approximately five feet eight inches tall, weighing about 165 pounds, clad in a black jacket with white sleeves, and thought to be one“Zachary Parisienne”. [5] As the officers approached the scene of the reported crime, they observed an individual walking casually along the sidewalk.

They testified that this individual matched the description of the suspect “to the tee”. The officers stopped the appellant, Philip Mann,and asked him to identify himself. The appellant stated his name and provided his date of birth to the officers. He also complied with apat-down search of his person for concealed weapons. … [15] The pat-down search resulted in the officers finding a small bag of marihuana. Mr. Mann was then charged under theControlled Drugs and Substances Act. The majority of the Court restored the trial judge’s acquittal after concluding that Mr. Mann hadbeen arbitrarily detained contrary to

section 9 of the Charter, and that the evidence of the marihuana was inadmissible.

In theseparticular circumstances, a component of the analysis is a “clear nexus between the individual to be detained and a recent or on-goingcriminal offence” (Mann, at paragraph 34). [16] However, when balancing the interests between the individual’s right to privacy and legitimate police functions, the factors tobe considered are different when the detention involves an individual walking down the street in an area where the police are searchingfor the perpetrator of an offence from when the driver of a motor vehicle is stopped for highway safety reasons such as impairment byalcohol.

The concept of the nexus described in Mann has no practical application to the stopping and detention of a motorist as occurredin this case. (See, for example, R. v. O’Kane (R.) (2008), 2008 NBCA 58 , 333 N.B.R. (2d) 274 (NBCA), at paragraphs 15 and19.) [17] Indeed, the distinction in privacy interests between a pedestrian and a motorist is discussed in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, which involved the detention of a motorist: [30] … It is true that motorists have a lower expectation of privacy in their vehicles than they do in their homes.

As participants in ahighly regulated activity, they know that they may be stopped for reasons pertaining to highway safety – as in a drinking-and-drivingroadblock, for instance. Had it not turned up incriminating evidence, the detention would have been brief. In these respects, theintrusion on liberty and privacy represented by the detention is less severe than it would be in the case of a pedestrian. Further, nothingin the encounter was demeaning to the dignity of the appellant. [18] Additional considerations relevant to the detection of drinking and driving offences are discussed in R. v. Orbanski; R. v.

Elias,2005 SCC 37 , [2005] 2 S.C.R. 3. Charron J., for the majority, began: [1] These appeals again raise issues resulting from the tension between the individual rights of motorists and the broader societalconcern in dealing with the carnage caused by those who commit offences involving drinking and driving. … [19] While Orbanski dealt with the right to counsel under

section 10(

b) of the Charter, Charron J. discussed considerations that

would apply equally in establishing the context for a challenge based on

section 9. First is a recognition that the need for regulation andcontrol of vehicular traffic, directed to the protection of life and property, is increased by “the high prevalence of the activity and itsinherent dangers” (paragraph 24). Second, the identification of drivers operating a vehicle with an impermissible blood alcohol contentpresents unique challenges requiring the balancing of society’s interest in dealing with “the menace posed by drinking and driving” and“minimal intrusion on the individual motorist’s Charter rights” (paragraph 25).

Third, because the driver who has exceeded thepermissible blood alcohol content presents a continuing danger to him or herself, passengers in the vehicle and other highway users, the“aim is to screen drivers at the road stop, not at the scene of the accident” (paragraph 26). In light of these considerations, the courts andthe legislatures have set standards which seek to achieve the goal of safer highways with minimal inconvenience to motorists.

As aresult, a relatively low threshold has been applied in determining whether the stopping of a motorist by a police officer for highwaysafety reasons constitutes an arbitrary detention. It is necessary only that the officer have reasonable grounds that can be clearlyexpressed for stopping the particular, as opposed to any, vehicle. (See, for example, R. v. Wilson, (SCC), [1990] 1S.C.R. 1291.)

Section 9 of the Charter - Application of the Legal Principles [20] The appeal judge erred in law by relying on the decision in Mann and injecting into the analysis a factor which has no practicalapplication in the circumstances, that is, a requirement for a nexus between the individual to be detained and a recent or on-goingcriminal offence. In addition, the appeal judge failed to consider the facts of this case in terms of the relevant case law as discussedabove. His decision must, therefore, be set aside. In the result, the appeal from acquittal is allowed.

In passing, I would emphasizecounsels’ responsibility in providing relevant case law to assist the court. In this case, counsel admitted that the quite extensive law onpoint was not put before the appeal judge. [21] The conviction entered by the trial judge must also be reviewed due to the error in law that resulted from his failure to analyzethe factual circumstances in terms of the relevant test, that is, whether the police officer had reasonable grounds that could be clearlyexpressed for stopping Mr. Adams’ vehicle, as opposed to any vehicle.

The judge simply stated that the officer “had a good reason forwanting to see what was going on”. This was an insufficient analysis and application of the test and resulted in an error of law engagingsection 686(1)(a)(ii) of the Criminal Code which authorizes the court to allow an appeal against conviction. [22] However, the conviction may stand despite this serious error of law where a conviction would, in any event, be inevitable(section 686(1)(b)(iii) of the Criminal Code). In R. v.

Van, 2009 SCC 22 , [2009] 1 S.C.R. 716, LeBel J., for the majority,explained: [34] … In the second category are serious errors that would otherwise justify a new trial or an acquittal, but for the fact that theevidence against the accused was so overwhelming that any other verdict would have been impossible to obtain: Khan; R. v. Trochym,2007 SCC 6, [2007] 1 S.C.R. 239. [23] This “high standard of an invariable or inevitable conviction” is satisfied in the case before this Court (Van, at paragraph 36). The trial judge made the findings of fact necessary for this Court to apply the correct legal test.

The judge reviewed the evidence in hisoral decision and, where there was inconsistency between the testimony of Mr. Adams and the police officer, he accepted that of theofficer. He accepted the officer’s testimony that Mr. Adams executed a turn that was “very slow and awkward, unusual”. Thisinformation, combined with the facts that the bar was closing, that Mr. Adams had been parked in the vicinity of the bar, and that, in theofficer’s experience, it was not uncommon to encounter individuals “who’ve had too much to drink that are out driving”, led the officerto stop Mr. Adams’ vehicle.

Absent the information about the unusual turn, it could not be said that the police officer had reasonablegrounds for stopping Mr. Adams’ vehicle in particular. However, the confluence of all these factors would constitute reasonablegrounds, clearly expressed, for stopping Mr. Adams’ vehicle as distinct from other vehicles in the vicinity.

Given the social policyconsiderations associated with drinking and driving offences, particularly the dangers posed to users of the highways, the difficultiesinherent in identifying motorists who have exceeded the permissible blood alcohol content, and the minimal intrusion on privacy rights,the courts have adopted a relatively low threshold for determining what constitutes reasonable grounds for stopping a motorist forhighway safety reasons such as impairment by alcohol. [24] In the particular circumstances of this case, it cannot be said that the police officer stopped Mr. Adams’ vehicle arbitrarily.

Hetestified as to objective criteria he used to establish reasonable grounds for stopping that particular vehicle. While the amount ofinformation was minimal, it was sufficient to satisfy the requirements of

section 9 of the Charter. [25] In the result, there is no basis on which to exclude the breathalyzer readings which indicated a blood alcohol content of .110. The elements of the offence of operating a motor vehicle having a blood alcohol content exceeding .08, contrary to section 253(1)(

b) ofthe Criminal Code have been established beyond a reasonable doubt. It follows that Mr. Adams is guilty as charged. [26] Accordingly, leave to appeal is granted, the appeal from acquittal by the appeal judge is allowed, and the conviction entered bythe trial judge is restored. The sentence imposed by the trial judge is affirmed. ______________________________ B. G. Welsh, J.A. I Concur: ____________________________ M. H. Rowe, J.A.

I Concur: ____________________________ L. R. Hoegg, J.A.