Ontario Judge finds Accused’s Charter Rights were violated and dismisses ‘Over 80’ Charge

In a 2016 trial, R. v. Moore, a man was tried summarily on charges of impaired driving and ‘over 80’ (for operation of a motor vehicle with a blood alcohol concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood).  The charges arose after a driver was pulled over in connection with the R.I.D.E. program in Oakville. At this point, the arresting officer noted that the driver had red, glossy eyes and his breath smelled of alcohol.  In response to the officer’s questions, the driver replied that he was on his way home from work, was tired, and had not drunk any alcohol.  The officer noted that when the driver was asked to produce his ID, he fumbled and was unable to find his ID.  Believing the man had consumed alcohol, the officer then asked the driver to pull over and get out of his vehicle, with the intention of demanding a breath sample into an approved screening device.  Based on further observations giving rise to the officer’s belief that the driver’s ability to drive was impaired, the man was subsequently arrested and taken to a police station to submit to Intoxilyzer tests.

The accused man, Mr. Moore, plead ‘not guilty’ on both charges and applied to have the results of his Intoxilyzer tests excluded, on the grounds that his Charter rights had been violated.  The two Intoxilyzer tests taken by the accused after the accident indicated 140 milligrams of alcohol, a fact that was not in contention.

The issues to be decided by the judge in this case were as follows:

1. whether the Intoxilyzer evidence should be excluded pursuant to the Charter; and
2. whether the Crown has proven that the accused was impaired by alcohol, beyond a reasonable doubt.

Mr. Moore’s defence counsel asserted that the evidence should be excluded because the police did not have reasonable and probable grounds to make a breath demand, which violated the accused’s s. 8 Charter right to be secure against unreasonable search and seizure as well as his s.9 right to not be arbitrarily detained.

Did the police have reasonable and probable grounds to make a breath demand?

Justice Harris asserted that although the arresting officer subjectively believed, on reasonable and probable grounds, that Mr. Moore was operating his vehicle while impaired, the officer’s belief was not objectively reasonable.   The legal test for reasonable and probable grounds is more than a suspicion; it must be fact-based on the totality of the circumstances, and must be a conclusion that a reasonable person with the experience and position of the arresting officer would have made.   Justice Harris noted that an officer need have grounds to suspect only a slight impairment (not necessarily a significant impairment) and may assess any number of facts or circumstances in coming to an objective decision.

The arresting officer, Constable Nicholls, testified that he had no reasonable belief that the driver was impaired at the time when he demanded that the driver pull over.  Also, the accused was cooperative throughout. However, the officer’s reason for having Mr. Moore pull off to the side of the road, get out of his car and give a breath demand, was based on a reasonable suspicion that the driver had been drinking.  The officer also admitted that the accused demonstrated no balance issues and walked normally after exiting his vehicle, but he swayed while standing during the reading of the demand (although he did not fall or stumble).  After observing the swaying, combined with the earlier observations of alcohol on the driver’s breath, fumbling for id, and red and glossy eyes, Constable Nicholls decided he had reasonable and probable grounds to believe that the accused’s ability to drive was impaired by alcohol.  Mr. Moore was subsequently arrested and taken to the police station, where he underwent Intoxilyzer tests.

Also of note is the testimony of the other officer present during the arrest, who testified that he did not observe any difficulty balancing or swaying, but instead, felt that the accused man was definitely slurring his words.   Constable Nicholls did not notice any slurred speech.

In his assessment of the officers’ evidence, the judge concluded that the initial swaying, which occurred just before the officer read the approved screening device demand, was “not enough to tip the balance towards reasonable and probable grounds”.  Further, the fact that the second officer did not perceive swaying or balance issues while watching the same actions creates doubt that the actions allegedly observed by Constable Nicholls could justify advancing his belief, from one of reasonable suspicion that there was alcohol in the accused’s body to reasonable and probable grounds that his ability to drive was impaired.  On this basis, the judge was not satisfied that the demand was reasonable. 

In making a determination whether the breath results must be excluded, Justice Harris considered the test defined in R. v. Grant (2009).  In this case, the Supreme Court of Canada noted that a judge must consider the following:

1. the seriousness of the Charter infringing conduct;
2. the impact of the breach on the interests of the accused, as protected in the Charter; and
3. the public’s interest in the judgement of the case based on its merits.

Assessment of the above issues must also be balanced against a consideration whether “admission of the evidence would bring the administration of justice into disrepute”. 

Justice Harris noted that an Intoxilyzer demand is much more intrusive than a roadside approved screening device demand, as it requires the driver to be arrested, handcuffed and detained at the police station for at least an hour.  The arresting officer had an approved screening device available and he knew the difference between the two demands, yet he made the more intrusive demand while lacking sufficient justification.  Therefore, the Charter infringing conduct is sufficiently serious to favour excluding the evidence. 

On the second issue, breath tests are considered only minimally intrusive, in terms of violating one’s privacy, dignity and bodily integrity. On the other hand, the degree of detention at a police station is still far greater and more intrusive than a simple approved screening device demand.

With regards to the third issue, the offence is considered to be a serious one which favours admission of evidence.  Justice Harris also noted that the Intoxilyzer evidence which the accused is asking to be excluded is reliable evidence and further, the ‘truth seeking function’ is generally better served when reliable evidence is admitted, rather than excluded.  The judge acknowledged that these considerations make his decision difficult, but in the interests of the administration of justice and rather than encroaching on the accused’s Charter rights, the Intoxilyzer evidence must be excluded. In the absence of evidence to support a conviction of ‘over 80’, the charge must be dismissed.

Is there sufficient evidence to prove impaired driving beyond a reasonable doubt?

In making a determination on the charge of impaired operation of a motor vehicle, the judge considered R. v. Stellato (1993).  The Ontario Court of Appeal asserted that impairment may be established whether it is slight or great.  Also, a judge must be satisfied beyond a reasonable doubt that the accused is guilty and if evidence is so frail as to establish doubt, the accused must be acquitted.

In this case, although there was testimony that Mr. Moore’s eyes were glossy and red, his breath smelled of alcohol and he fumbled for his documents, the officers also acknowledged that his driving was fine and he walked normally (which was further confirmed in videos taken in the booking and breath testing areas of the police station).  The accused was also cooperative and polite.  Although some issue was made of the accused’s initial refusal to identify himself, Justice Harris noted that because much has been said about our right to remain silent, an accused may believe that this includes the right to not identify themselves.  Also, the alleged unsteadiness while standing beside the cruiser, which was described as shifting of feet back and forth, could be explained by nervousness.  Based on a consideration of all the evidence, the judge concluded that the Crown failed to prove beyond a reasonable doubt that the accused’s ability to drive was impaired by alcohol.  Therefore, this charge was also dismissed.  

A conviction on DUI charges, such as impaired driving and ‘over 80’, results in serious penalties, including a criminal record and a loss of driving privileges for as much as three years for a first offense.   At the Law Firm of Ted Yoannou, we have successfully defended many clients charged with alcohol-related offences and our legal team is well experienced and skilled in building a strong defence based on the facts of a case.  If you were charged with impaired driving or ‘over 80’, call Ted Yoannou to meet with a DUI lawyer and find out how we can help.