R. v. Mitchell (R.), 2012 MBCA 59

Citation: R. v. Mitchell (R.), 2012 MBCA 59 Date: 20120605 Docket: AR 12-30-07729 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : HER MAJESTY THE QUEEN ) N. Carnegie ) for the Applicant (Respondent) Applicant ) ) T. J. Killeen - and - ) for the Respondent ) ) Chambers motion heard: RHYS MITCHELL ) May 10, 2012 ) ) Decision pronounced: (Accused) (Appellant) Respondent ) June 5, 2012 HAMILTON J.A. 1 The Crown seeks leave to appeal, pursuant to s. 839(1) of the Criminal Code (the Code ), from the decision of a Court of Queen’s Bench judge acting as a

summary conviction appeal judge (the appeal judge). The appeal judge overturned the respondent’s conviction under s. 253(1) (

b) of the Code for driving over “.08.” 2 After a voir dire to determine the admissibility of the respondent’s breath samples, the trial judge found that the police officer breached the respondent’s s. 8 rights under the Canadian Charter of Rights and Freedoms (the Charter ) when he made an approved screening device (ASD) demand. The trial judge admitted the breath sample evidence pursuant to s. 24(2) of the Charter . 3 The respondent appealed his conviction on the ground that the trial judge erred in admitting the breath sample evidence.

The Crown, as it was entitled to do on the appeal, argued, firstly, that there was no s. 8 breach and, alternatively, that the admission of the breath sample evidence under s. 24(2) should be upheld. 4 The appeal judge agreed with the trial judge that the officer did not objectively have the requisite reasonable suspicion to make the ASD demand. However, she concluded that the trial judge had erred in law by admitting the breath sample evidence under s. 24(2) and entered an acquittal of the respondent. 5 The Crown seeks leave to appeal the acquittal.

Criteria for Leave to Appeal 6 An applicant seeking leave to appeal from a

summary conviction appeal decision must satisfy the following criteria: 1. the ground of appeal must involve a question of law alone; 2. the ground of appeal must raise an arguable matter of substance; and 3. the arguable matter must be of sufficient importance to merit the attention of the full court. See R. v. Jacob , 2012 MBCA 19 , R. v. R.W.M. , 2011 MBCA 74 , 270 Man.R. (2d) 29, and R. v. Dickson (W.A.) , 2012 MBCA 2 , 275 Man.R. (2d) 38. 7 As for the third criterion, this court has adopted the reasoning of Doherty J.A. in R. v. R. (R.) , 2008 ONCA 497 , 90 O.R. (3d) 641.

In that decision, he explained that, because this is a second-level appeal, “[a]ccess to this court for a second appeal should be

limited to those cases in which the applicant can demonstrate some exceptional circumstance justifying a further appeal” (at para. 27). 8 In Dickson, Scott C.J.M. summarized the guiding principles for granting leave to appeal on a second-level appeal from adecision of an appeal judge on a

summary conviction offence (at para. 14): …

(1) Leave to appeal will ordinarily be granted only in exceptional circumstances, which will rarely occur. This is because an appeal tothis court is the third level of court involved in the proceedings (unlike more serious indictable offences). In this regard, the role of aprovincial appellate court is akin to that of the Supreme Court of Canada when dealing with an appeal from a conviction on an indictableoffence. See R. v. Suberu (M.) (2007), 2007 ONCA 60 , 220 O.A.C. 322; 2007 ONCA 60; 85 O.R. (3d) 127, at para. 67, affd.2009 SCC 33 , [2009] 2 S.C.R. 460; 390 N.R. 303; 252 O.A.C. 340; 2009 SCC 33.

(2) For leave to appeal to be granted, the decision should be one that has a significant impact beyond the facts of the particular case.

(3) It follows then that not all errors in law will merit the granting of leave.

(4) Critically, the question whether there are exceptional or compelling reasons for the granting of leave refers to the significance of thelegal issue; the fact that the issue is unusual or rare is not, in and of itself, compelling. See R. v. Paterson (D.), [2009] O.A.C. Uned.215; 2009 ONCA 331 at para. 2.

(5) Notwithstanding, if a clear error in law has been identified, leave may be granted even if the significance of the issue for theadministration of justice is not high. Background 9 Section 254(2)(

b) of the Code provides the authority for a police officer to make an ASD demand. The pertinent parts ofthe

section for this application are: If a peace officer has reasonable grounds to suspect that a person has alcohol ... 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 ... by means of an approved screening device …. [emphasis added] 10 In this case, the officer made the ASD demand after stopping the respondent in the early-morning hours on January 31, 2009,for driving without his headlights turned on. The respondent had three passengers in the car with him. 11 As found by the trial judge, the officer based his ASD demand on the respondent’s “slightly glassy eyes,” the smell ofalcohol from inside the vehicle and the respondent’s admission that he had consumed two beer earlier at a friend’s house.

The officercould not tie the smell of alcohol directly to the respondent at the time he made the ASD demand. 12 The trial judge made these findings after reviewing the officer’s evidence at some length, including clarifications andacknowledgments that the officer made during cross-examination. During his review, the trial judge noted that the officer’s notes“contained very little detail of what led up to the traffic stop” and that the officer made no further inquiries after the respondent repliedthat he had two beer earlier. He stated:

... [D]id not ask when he had finished the last ... drink, where the accused’s friend lived or when he, in fact, had started to drink that evening. .... 13 The result of the ASD test was a fail. The respondent then provided breath samples after a breathalyzer demand. The officer acknowledged on cross-examination that he did not have reasonable and probable grounds for the breath sample demand without the ASD fail result. 14 As is well known, the reasonable suspicion required by s. 254(2) of the Code has a subjective and an objective component.

Subjectively, the peace officer must honestly believe that he has reasonable grounds to suspect that the person has alcohol in their body. Objectively, there must be reasonable grounds for that suspicion. 15 This leave application focusses on the objective component. The Trial Judge’s Reasons The Breach 16 The trial judge explained that the threshold of reasonable suspicion is “relatively low” and that “the mere admission ... of an individual to having consumed alcohol, may be sufficient.” However, he found that the respondent’s admission was not sufficient in this case. He stated: ….

There was no odour of alcohol detected on the accused prior to the demand, no questioning of when the accused drank, so as to satisfy himself that there was alcohol in the body, and there was certainly no overt signs to support the conclusion. I think it’s fairly trite to say that the law is not so permissive as to permit a roadside detention in every case where an individual says he has consumed alcohol at some point in the day. …. . . . . . What is apparent to me in this case, and as the facts that I find, is that this matter, of course the investigation, at least in my view, was somewhat wanting.

Even more concerning is the issue of the note taking and recording done by the officer in question. In this case I find that the officer is not really concerned with the issue of whether this accused was impaired or had alcohol in his body, this is evident by the fact that he took no time to assess the strong odour -- where the strong odour of liquor was coming from that he articulated was coming from the automobile in question.

In other words, he wasn’t concerned as to who was consuming alcohol or who had been consuming alcohol in the car as is evident by his determination, at that time, that that was not something worthy of further investigation. .... I think it’s fairly evident that, in this particular case, that absent the accused’s admission that he had consumed alcohol at some point on that particular day, it is very difficult for the court to draw the conclusion that the -- subjectively, that the officer should have had reasonable suspicion this individual had alcohol in his body at the material time. ....

The observations of the officer at the time of the stop required, at least in my view, a further investigation and not the, the decision of the officer to leap directly to an approved screening device because there was alcohol somewhere within that automobile. I am of the view that in these particular circumstances before the court, that there was -- objectively, that there was no basis to make an approved screening device, based on the evidence that was available to the officer at the time .... ….

Section 24(2) 17 The trial judge explained the three well-known inquiries (the seriousness of the breach, the impact of the breach on the Charter -protected interest and society’s interest in the adjudication of the case on its merits) mandated by R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353, for a s. 24(2) analysis to determine the broad impact of the admission of the evidence on the long-term repute of the

justice system. 18 He noted that individuals who operate a motor vehicle have a relaxed expectation of privacy and that the ASD demand falls “at the lower end of the spectrum in terms of intrusiveness.” 19 He made the following findings: ... [T]he investigation was poorly conducted. …. The sloppiness of the investigation is highlighted by the fact that the officer did not know the names of those others .... .... . . . . .

It is difficult to assess his mindframe at the time due to his poor note taking and the lack of recollection of this incident although the latter should not be surprising, given the passage of time. It is my view that the actions of the officer on this day were not those (inaudible) though intentionally and deliberately disallowing the accused of the protections of the Charter . .... The evidence obtained is certainly reliable .... . . . . .

In my view, the breach before the court did not come about because of the egregious conduct by the officer, nor resulted in an affront of bodily integrity or private personal privacy. Generally, in this case, the collection of breath samples was relatively non-intrusive as that comment was ultimately used .... It is on this basis that I am of the view that the admission of the breath samples at issue would not bring the administration of justice into disrepute, therefore, the results of the ASD test are, in fact, admissible .... ....

The Appeal Judge’s Reasons 20 In her written decision the appeal judge reviewed the facts, the trial judge’s reasons and the parties’ positions, noting the cases that they each relied upon. She identified the principles articulated in R. v. Farrah (D.) , 2011 MBCA 49 , 268 Man.R. (2d) 112, with respect to the applicable standards of review for a decision concerning a Charter breach and the admission of evidence under s. 24(2) . The Breach 21 The appeal judge concluded that the trial judge did not err when he determined that the respondent’s s. 8 Charter rights were breached. She wrote (at para. 26): ....

The absence of a proper investigation, including the taking of a history of Mitchell’s alcohol consumption, was fatal to a finding that the constable had reasonable suspicion. The smell of alcohol from inside the vehicle could clearly have been coming from its other occupants with Mitchell simply acting as the designated driver. This must all be evaluated in the context of the constable’s stopping the vehicle, attending at the driver’s window, securing Mitchell’s driver’s license/vehicle registration, and making the determination to conduct the ASD test all within the passage of three minutes or less.

Section 24(2) 22 The appeal judge, citing R. v. Beaulieu , 2010 SCC 7 , [2010] 1 S.C.R. 248, explained that “‘considerable deference’ is owed to a trial judge’s s. 24(2) assessment of what would bring the administration of justice into disrepute having regard to all the circumstances” (at para. 29).

23 She noted that the trial judge “acknowledged the three lines of inquiry” (at para. 30) required for the s. 24(2) analysis, that he focussed on the sloppiness of the investigation for the first line of inquiry and that “the trial judge determined that the breach was not related to any egregious conduct on the part of the constable, nor did it result in an affront to Mitchell’s bodily integrity or personal privacy” (at para. 32). 24 In concluding that the investigation “was inadequate in all the circumstances and infringed upon Mitchell’s rights” (at para. 34), she relied on R. v.

Waters (D.B.) , 2010 ABQB 607 , 504 A.R. 304, and R. v. Dumaine , 2010 BCPC 310 , 7 M.V.R. (6th) 152. In her analysis, she adopted the following quote from Dumaine ( ibid. ): A screening test is a limited tool, but it does require a stop and exit from the motor vehicle and some questioning and instructions from the police officer. It is recognized to be a minimal intrusion upon a person who is granted the privilege of driving a motor vehicle on our public roads. It is a step, however, that launches a police investigation and a much broader intrusion into one’s life and privacy.

A “fail” reading from the roadside device can make a conviction a likely outcome. I accept this is a serious breach of an individual’s Charter rights. This intervention by a state authority launches a cascade of steps and events that are an enormous intrusion on a person’s life. The actions of the police officer must be carefully examined and it is my conclusion that the step taken by Constable Harvey was an error that should have been recognized by him. He should not have relied on his assumptions to conclude that a sample of breath could legally be obtained.

He let his subjective belief cloud the necessary investigative analysis. ... 25 As for the officer’s conduct and the first inquiry, she wrote (at para. 35): .... At best, his conduct amounted to negligence or willful blindness which cannot, in accordance with Grant , be equated with good faith. There was no basis for the demand that Mitchell undergo an ASD test, as found by the trial judge. While the trial judge turned his mind to the nature of the breach, as I will later explain, he placed too much emphasis on what he found to be the relative lack of seriousness of this breach.

With respect to the first line of inquiry under the Grant analysis, I am satisfied that the exclusion of the breath test results could be an appropriate course of conduct. 26 As for the second inquiry, she concluded that the ASD demand was a “significant intrusion of Mitchell’s interests” (at para. 37), relying on the “cascade of steps and events” (at para. 34) after an ASD demand discussed in Dumaine . 27 As for the third inquiry, the appeal judge relied again on Dumaine (at paras. 39-40 ): The ASD test and the breath test results must be regarded as reliable evidence that constitutes the core of the Crown’s case.

What is the long-term effect on the administration of justice if this evidence is admitted? Would the public confidence in the administration of justice be negatively impacted by the exclusion of the breath test results? This area must be particularly considered given that such evidence is reliable and there is a profound public interest in seeing impaired driving cases decided on their merits.

In Dumaine , the court held with respect to the third line of inquiry as follows: [31] It is my view that the state interest in adjudication on the merits must be balanced against the circumstances that have arisen in this case. The Crown has an additional count in the Information and adjudication can be completed without this disputed count. I also rely on the comments in Grant at paragraph 84 that it is important to recognize the long-term effect on the administration of justice, and not simply the short-term consequence.

I view this breach of the individual’s right against self-incrimination as the cornerstone to fundamental justice.

A constant reminder of this precept is a necessary reinforcement to our administration of justice. 28 After balancing the results of the three inquiries, the appeal judge concluded that the breath samples should be excluded (at para. 45): .... … [W]hen I consider the “sloppiness” of the constable’s investigation which resulted in a breach of [ Mitchell’s] right against self- incrimination with all of the attendant consequences, I find that the long-term interests of justice cannot respect such a failure to acknowledge an accused’s constitutional rights.

This is particularly so when the breach is associated with a less than adequate investigation. The Positions of the Crown and the Respondent

29 The Crown asserts that the appeal judge made two arguable errors of law that are of sufficient importance to merit theattention of this court.

The alleged errors are: 1. the appeal judge erred in law by concluding that the police did not meet the statutory “reasonable suspicion” standard for making anASD demand, thereby infringing the respondent’s s. 8 rights (the breach question); and 2. in excluding the breath samples from evidence under s. 24(2), the appeal judge erred in law by not according the proper deferenceto the decision of the trial judge and by considering improper factors (the s. 24(2) question). 30 While the respondent acknowledges that the rulings at issue raise questions of law, he asserts that the two alleged questionsare not arguable because the appeal judge did not err in law.

Further, he says that even if they raise arguable questions of law, the Crownhas not demonstrated that the questions of law are so exceptional in nature to demand the attention of the court.

The rulings, he says, areall about the facts, not the principles of law, and that this is a “bad case” to go forward because the officer’s investigation and hiscredibility were put into issue on cross-examination. 31 The Crown argues that both questions warrant the attention of this court because they have significant consequences for theinvestigation and adjudication of “over 80” offences and, as a consequence, for the administration of justice in Manitoba. 32 The Crown also says that the breach question is of significance because the appeal judge’s decision will have precedentialvalue in Manitoba given that this court has not directly addressed the issue raised by the breach question and because her decision is notconsistent with R. v.

Penny (G.), 2011 MBQB 237, 271 Man.R. (2d) 89, another recent

summary conviction appeal decision from theCourt of Queen’s Bench. 33 As for the s. 24(2) question, the Crown acknowledges the principles under Grant are well known, but that it is theapplication of these principles to an ASD demand scenario that calls for this court’s guidance.

It says that the errors of the appeal judgeare so clear that they warrant correction and, in any event, it says that if leave is granted on the breach question, leave should begranted on the s. 24(2) question, as they “go hand in hand.” Analysis and Decision The Breach Question 34 The Crown asserts that there is no required or necessary indicator for the making of a lawful ASD demand.

In particular, itsays that there is no obligation on the officer to follow up on a drinking history of a driver who has admitted to earlier consumption andno requirement that a police officer smell alcohol on the breath of the driver who is the subject of the demand.

Therefore, it says that theappeal judge erred in law when she stated that “absence of a proper investigation, including the taking of a history of Mitchell’s alcoholconsumption, was fatal to a finding that the constable had reasonable suspicion” (at para. 26). 35 Further, it argues that the court must examine the totality of the indicators at the roadside to determine whether the officerhad the required reasonable suspicion, which, it says, only requires that the officer’s suspicion of alcohol in the driver’s body be one of anumber of possible conclusions arising from the totality of the indicators, not a probability.

It says that the indicators in this case, asfound by the trial judge, as well as the failure of the respondent to turn on his headlights, were more than sufficient to support the ASDdemand. 36 The Crown relies on R. v. Gilroy (1987), 1987 ABCA 185 , 79 A.R. 318 (C.A.), R. v. Hryniewicz, [2000] O.J. No.436 (QL) (C.A.), R. v. Singh (2006), 44 M.V.R. (5th) 285 (Ont. S.C.J.), R. v. Nahorniak (D.W.), 2010 SKCA 68, 359 Sask.R. 15, Penny,and R. v. Chipchar, 2009 ABQB 562 (QL). 37 As noted earlier, Penny is a recent

summary conviction appeal decision which also concerns an ASD demand. In that case,the police officer made the demand to a lone occupant of a truck from which he could smell alcohol. In his analysis about whether thetrial judge erred in not finding a breach when the ASD demand was made, Martin J. stated that “the test for making the demand isconsumption of alcohol alone, not its amount or behavioural consequences” (at para. 26). Martin J. concluded that “[t]he officer’ssubjective grounds for belief were sufficient to be objectively reasonable grounds to suspect Mr.

Penny had alcohol in his body” (at para.27). 38 The appeal judge wrote that Penny provides “a helpful analysis of the objective and subjective considerations” (at para. 28). She did not specifically refer to Gilroy, which the Crown argues is a leading case in this area of the law. 39 Hryniewicz is a brief endorsement decision in which the Ontario Court of Appeal overturned the

summary conviction appealjudge’s reversal of the trial judge’s conviction. The court held that it was an error for the trial judge to state that “it is necessary to smellalcohol to form a reasonable suspicion justifying a screening test” (at para. 1). In that case, the factors considered by the trial judge werethat the driver’s eyes were bloodshot and glazed, his speech was slurred and when asked, he told the police officer that he “[h]ad a

couple.” 40 In Singh, Durno J., sitting as a

summary conviction appeal judge, stated that “[t]he Court of Appeal has held that it is not aprecondition to a valid ASD demand that the driver have the odour of an alcoholic beverage on his or her breath. R. v. Zoravkocic,[1998] O.J. No. 2668 (Ont. C.A.)” (at para. 12). Durno J. also stated that “the officer was objectively entitled to infer as he did, that itwould have been recent consumption” (at para. 17). He also held that factors that could support the demand, but that were notconsidered by the officer, can be considered when addressing the objective component. 41 In Nahorniak, which was an appeal from a

summary conviction appeal, the Saskatchewan Court of Appeal wrote (at paras.23, 27): In deciding whether an officer had grounds to make the demand and administer the test, a court must consider all the circumstances andevidence with respect thereto known to him when he made the demand. (See: R. v. Shepherd, 2009 SCC 35 , 309 D.L.R. (4th)139; 2009 SCC 35, appealed from 2007 SKCA 29). The smelling of alcohol on a person’s breath, although cogent evidence of alcohol in the body, is not always the sine qua non of“reasonable suspicion.” R. v.

Butchko (C.L.), 2004 SKCA 159 , [2005] 11 W.W.R. 95; 257 Sask.R. 41; 342 W.A.C. 41; 2004SKCA 159, merely stands for the proposition that the smell of alcohol on the accused’s breath may be a sufficient condition ofreasonable suspicion rather than a necessary one. 42 In Chipchar, the court described an inquiry into the drinking history of the driver as a “dangerous suggestion that officershave to start doing expert-type calculations to try and determine if alcohol is still in the body” (at para. 17).

In addition, the Crown saysthat such inquiries go beyond the intended expeditious nature of the roadside screening process explained in R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, and reflected in s. 76.1(4) of The Highway Traffic Act, C.C.S.M., c. H60. 43 The respondent concedes the issue is not whether the officer could have conducted a more thorough investigation, butwhether when the officer made the ASD demand he subjectively had, and objectively there was, reasonable suspicion to do so. He saysthat the comments of the appeal judge with respect to a drinking history are fact-specific to this case.

He says that the appeal judge’scomments about the lack of investigation simply reflect that the temporal connection between consuming alcohol and driving was notestablished. He argues strenuously that the breach question does not fall within the exceptional category for which leave should begranted. 44 I agree with the respondent that there are numerous decisions dealing with what constitutes a reasonable suspicion for anASD demand.

However, neither counsel were able to point to any decision of this court on the issue and there are only a few Court ofAppeal decisions from other jurisdictions, as noted above. 45 Given that the jurisprudence has established that the threshold for the requisite reasonable suspicion is low and the trialjudge’s findings as to the factors considered by the officer for his reasonable suspicion, I am satisfied that the breach question is anarguable question of law. 46 The more difficult question is whether the breach question falls within the exceptional category to warrant further appellatereview by this court.

Because I have concluded that it does and the question will be addressed by a panel of this court, my comments areintentionally brief. 47 The respondent rightly highlighted that this case is fact-driven. That is the nature of cases such as this. The question of lawis the application of the applicable legal principles to those facts. This is an area of the law that affects the administration of justice on adaily basis. I am persuaded that the breach question has significance for the administration of the roadside-screening process andtherefore the enforcement of the “over 80” offence in general.

This goes beyond the facts of this particular case. See Jacob. 48 The appeal will be an opportunity for this court to provide at least some guidance to police, counsel and the courts on whatconstitutes a reasonable suspicion for an ASD demand. Importantly as well, the court can address any confusion that may arise fromwhat appears to be two conflicting decisions from this province’s

summary conviction appeal court. The Section 24(2) Question 49 As for the s. 24(2) question, it has two aspects. The Crown argues that the appeal judge erred in law by, firstly, failing toapply the deferential standard of review and, secondly, when she considered inappropriate factors in her analysis.

Briefly stated, theCrown asserts that she erred finding negligence or wilful blindness on the part of the officer, finding that the breach started a cascade ofevents and relying on the principle of self-incrimination when the Supreme Court of Canada in Grant rejected self-incrimination as apivotal consideration in determining the admissibility of bodily sample evidence. 50 Again, the key consideration for me is whether the Crown has established exceptional circumstances for the s. 24(2)question, which I am satisfied is an arguable question of law.

Given Grant and subsequent jurisprudence, I agree with the respondentthat the legal principles are well known. If the s. 24(2) question was the only ground of appeal put forward by the Crown, I would behard pressed to permit a second-level appeal. However, because I am granting leave on the breach question, I am of the view that the s.24(2) question should be before the court for completeness and to preserve remedial flexibility in the event the court agrees with the trialjudge and the appeal judge that there was a breach.

Conclusion 51 I grant leave to the Crown on the following questions of law: 1. Did the appeal judge err in law by concluding that the police did not meet the statutory “reasonable suspicion” standard for making an ASD demand, thereby infringing the respondent’s s. 8 rights? 2. In excluding the breath samples from evidence under s. 24(2), did the appeal judge err in law by not according the proper deference to the decision of the trial judge and by considering inappropriate factors? J.A.