



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gardner, 2018 ONCA 584

DATE: 20180626

DOCKET: C64995

Hourigan, Pardu and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Jordan Gardner

Respondent

Jennifer Epstein, for the appellant

Karen Seeley, for the respondent

Heard: June 22, 2018

On appeal from the decision dated August 30, 2017 by
    Justice F. Bruce Fitzpatrick of the Superior Court of Justice sitting as a
    Summary Convictions Appeal Court, with reasons reported at 2017 ONSC 5175, dismissing
    an appeal from the acquittal entered on October 17, 2016 by Justice Jennifer R.
    Hoshizaki of the Ontario Court of Justice.

Nordheimer J.A.:



[1]

The Crown appeals, with leave,
[1]
from the decision of the Summary Conviction Appeal Judge (SCAJ) that dismissed
    the Crowns appeal from an acquittal on a charge of driving with more than 80
    mg of alcohol in 100 ml of blood contrary to s. 253(1)(b) of the
Criminal
    Code
, R.S.C. 1985, c. C-46. At the conclusion of the hearing before this
    court, we allowed the appeal with reasons to follow. I now provide those
    reasons.

[2]

In summary, both the SCAJ and the trial judge erred in finding that the
    respondents
Charter
rights had been breached, and thus further erred
    in excluding both the breathalyser readings and the respondents statements
    made at the time of the police stop from the evidence.

Background Facts

[3]

On December 12, 2015, at approximately 11:25 p.m., Constable Lieverse of
    the Treaty Three Police
[2]
received a call that a specific individual was suspected to be impaired and
    driving a green pickup truck in the Wabigoon Lake First Nation community. Constable
    Lieverse arrived in the Wabigoon Lake community approximately 20 minutes after
    receiving the call. Constable Lieverse first attended the residence of this
    individual but the individual was not home.

[4]

Constable Lieverse left the residence and drove along Main Road.
    Constable Lieverse observed an oncoming motor vehicle. Because it was dark, and
    the road had no street lighting, Constable Lieverse could only see the
    headlights as the vehicle approached. It appeared to Constable Lieverse to be a
    pickup truck. Constable Lieverses activated his emergency lights and stopped
    his cruiser. Constable Lieverse stepped out onto the roadway and flagged the
    vehicle to stop. The vehicle stopped. Constable Lieverse gave evidence that he
    could not tell what colour the truck was as it approached. In
    cross-examination, Constable Lieverse said he would not have been able to tell
    what colour the motor vehicle was until it passed him.

[5]

The motor vehicle that Constable Lieverse stopped was a pickup truck but
    it was a red pickup truck, not a green one. The red pickup was being driven by the
    respondent.

[6]

Constable Lieverse approached the drivers side of the vehicle and asked
    the respondent to roll down his window and identify himself. Constable Lieverse
    advised the respondent that he was looking for an impaired driver. Constable
    Lieverse could smell the odour of alcohol emanating from the vehicle. He asked the
    respondent if he had been drinking. The respondent responded that he had. Constable
    Lieverse asked the respondent to step out of the motor vehicle because there
    were other persons in the vehicle and he wanted to isolate the respondent from
    the others in order to determine the source of the alcohol smell. Once outside
    the vehicle, Constable Lieverse could smell alcohol on the respondents breath.
    As a result of that fact, and an admission by the respondent that he had been
    drinking, Constable Lieverse made a demand for a roadside breath sample from
    the respondent.

[7]

Constable Lieverse asked the respondent when he consumed his last drink.
    The respondent advised that his last drink had been only several minutes
    earlier. As a consequence, Constable Lieverse elected to wait 15 minutes before
    administering the breath test in order to eliminate the effects of any residual
    mouth alcohol. Thereafter, the respondent provided the breath sample. The
    Approved Screening Device registered a Fail. Constable Lieverse said that he then
    formed reasonable grounds to believe that the respondent was driving over 80.

[8]

Constable Lieverse arrested the respondent. He then, and for the first
    time, gave the respondent his rights to counsel. He also gave the respondent
    the standard caution about his right to remain silent and he read the standard
    breath demand. Constable Lieverse took the respondent to a police station to administer
    a breathalyser test. Prior to administering the test, Constable Lieverse asked
    the respondent if he wished to speak to counsel. The respondent declined. Constable
    Lieverse reiterated the rights to counsel and the respondent again waived his
    rights. Two breathalyser tests were then administered. The readings from those tests
    at 1:31 a.m. and 1:54 a.m. were 110 and 107 mg of alcohol in 100 ml of blood,
    respectively.

The Trial

[9]

At trial, the respondent alleged that his rights under ss. 8, 9, 10(a),
    and 10(b) of the
Charter
had been violated. The respondent asserted
    that his rights under s. 9 were breached because the police did not have any
    right to stop his vehicle. This assertion arose from the respondents companion
    assertion that the police were engaged in a criminal investigation relating to
    a specific individual and, since the respondent was not that individual, the
    police could not rely on authority, under the
Highway Traffic Act
,
    R.S.O. 1990, c. H.8, to stop him.

[10]

From
    these assertions, the respondent said that it followed that, when the police
    did stop him, they were engaged in an investigative detention and that the
    respondent ought to have been given his rights to counsel from the moment of
    the stop. The respondent also argued that his s. 8 rights were breached, as
    Constable Lieverse did not have reasonable and probable grounds to make the
    breath demand, and his s. 10(a) rights were breached as the Constable Lieverse failed
    to promptly inform him of the proper reason for his detention.

[11]

The
    trial judge accepted the respondents position. She found that the respondents
    ss. 8, 9, and 10
Charter
rights were breached. The trial judge then determined
    that the breathalyser and contemporaneous statements evidence should be
    excluded pursuant to s. 24(2) of the
Charter
. As such, the respondent
    was acquitted.

[12]

In
    reaching her decision, the trial judge concluded that the respondent was
    detained for a purpose under the
Criminal Code
, and not pursuant to
    the
Highway Traffic Act
. She therefore found that Mr. Gardner was
    arbitrarily detained. The trial judge found that the respondent should have
    been informed of his rights to counsel immediately upon his detention. The trial
    judge did not provide specific reasons for her conclusion that there had been a
    breach of s. 10(a). Rather, she only addressed the s. 10(b) issue. The trial judge
    also found that Constable Lieverse breached the respondents s. 8
Charter
rights because he did not have grounds to stop the respondents vehicle.

The Summary Conviction Appeal

[13]

The
    Crown appealed to the Superior Court of Justice. The Crown asserted that the
    trial judge had made two errors of law by:


i.

finding that the police were not permitted to detain the respondent
    either under the
Highway Traffic Act
or at common law; and


ii.

finding that there had been a breach of the respondents rights under s.
    10(a) of the
Charter
.

[14]

The
    SCAJ dismissed the appeal. He concluded that the trial judge had made a
    finding of fact that the stop resulted in an investigative detention and that
    this finding was open to the trial judge on the evidence. The SCAJ concluded
    that the polices powers to stop a vehicle under the
Highway Traffic Act
did not apply to the instant case.

[15]

In
    reaching his conclusion, the SCAJ said, at para. 49:

In my view, the findings of the trial judge are ones that could
    have been reasonably reached. The decision was supported by the evidence. The
    decision is not clearly wrong in law. Further, I find the decision to be
    reasonable in light of the findings of fact. In my view, the acquittal in this
    case did not constitute a miscarriage of justice.

Issues on Appeal

[16]

The
    Crown identified three issues in its motion for leave to appeal. They are:

(i)

whether the SCAJ erred by applying the wrong standard of review;

(ii)

whether the SCAJ erred in law by failing to find that the trial judges conclusion,
    that the respondent was detained, was an error of law; and

(iii)

whether the SCAJ erred in law by failing to find that the trial judges conclusions
    regarding the
Charter
breaches were errors of law?

Analysis

[17]

I
    agree with the Crown that the SCAJ applied the wrong standard of review because
    he mischaracterized the trial judges conclusions as findings of fact when they
    were actually conclusions of law. The appropriate standard of review was
    therefore correctness:
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2
    S.C.R. 235, at paras. 8 and 36.

[18]

The
    central issue in this appeal is the proper characterization of the nature of
    the stop. The trial judge concluded that Constable Lieverse was engaged in a
    criminal investigation and thus could not rely on the authority given to him by
    the
Highway Traffic Act
to stop the respondents vehicle to check on
    the sobriety of the driver. Section 48(1) of the
Highway Traffic Act
reads:

A police officer, readily identifiable as such, may require the
    driver of a motor vehicle to stop for the purpose of determining whether or not
    there is evidence to justify making a demand under section 254 of the
Criminal
    Code
(Canada).

[19]

The
    purpose for which Constable Lieverse stopped the respondents vehicle was to
    determine if the driver of the vehicle was impaired. The fact that Constable
    Lieverse stopped a vehicle, that was not the same vehicle for which he had a
    report of possible impaired driving, does not change the reason for the stop. The
    fact that Constable Lieverse fortuitously discovered another impaired driver is
    irrelevant to the legal analysis. Constable Lieverse had reason to believe that
    a person was operating a pickup truck while impaired. This informed Constable
    Lieverses decision to stop the respondents pickup truck to determine if the
    driver of the pickup truck was impaired. He had the authority to do so under s.
    48(1) of the
Highway Traffic Act
.

[20]

The
    trial judge erred in law in finding that the actions of Constable Lieverse constituted
    only an investigative detention that did not include a traffic stop for highway
    safety purposes under the
Highway Traffic Act
. This error led, in
    turn, to the trial judges erroneous conclusion that stopping the respondents
    vehicle constituted a breach of the respondents s. 9
Charter
rights.

[21]

Police
    officers have the right to stop a vehicle for the purpose of checking on the
    sobriety of the driver. This is a power that the police have both at common law
    and through statutes such as the
Highway Traffic Act
:
R. v.
    Orbanski
;
R. v. Elias
, 2005 SCC 37, [2005] 2 S.C.R. 3, at
    para. 41.

[22]

The
    actions of the police in stopping a vehicle under their authority at common law
    or by statute only constitutes an unconstitutional stop if the reason for the
    stop is unconnected to a highway safety purpose. That is what distinguishes
    this case from cases such as
R. v. Simpson
(1993), 12 O.R. (3d) 182
    (C.A.), 79 C.C.C. (3d) 482. In that case, Doherty J.A. made this very point, at
    p. 491:

In
Dedman
,
supra
, at pp. 119-22, the court held
    that the common law ancillary police power justified random stops of vehicles
    in the course of the enforcement of laws relating to the operation of those
    vehicles. This power to stop was, however, closely tied to the particular
    purpose of the stops, the dangers presented by the activity targeted by the
    stops, the qualified nature of the liberty interfered with by the stops, and
    the absence of other less intrusive means of effective enforcement of the
    relevant laws. The authority to stop described in
Dedman
was clearly not
    a general power to stop for all police purposes, but was limited to stops made
    in furtherance of the police duty to protect those who use the public roadways
    from those who use those roadways in a dangerous manner.

[23]

If
    the police stop a motorist for a criminal investigation unrelated to highway
    safety, then they must have an articulable cause for the stop. In
Simpson
,
    the police were investigating drug activity, not highway safety. That is the
    reason that this court found a
Charter
breach, excluded the evidence,
    quashed the conviction, and entered an acquittal in that case.

[24]

This
    same distinction applies to one of the cases relied upon by the trial judge,
    namely,
R. v. Lacoste
, 2014 ONSC 7481. In
Lacoste
, para. 31,
    the trial judge found that the police stop was not made pursuant to their
    authority under the
Highway Traffic Act
. Indeed, the police did not
    suggest it was. Rather, the police were searching for someone who had stolen
    gas and stopped the vehicle in furtherance of that investigation. It again had
    nothing to do with highway safety.

[25]

Had
    the trial judge correctly characterized the reason underlying the stop of the
    respondents vehicle, she would have concluded that it was not an investigative
    detention that would invoke s. 9 of the
Charter
and there was no
    breach of the respondents rights under ss. 10(a) or 10(b). I note, in passing,
    that this court, unfortunately, did not have the benefit of any reasons from
    the trial judge respecting the alleged s. 10(a) breach. The SCAJ acknowledged
    the lack of reasons underlying the trial judges conclusion on this issue but
    said, at para. 45, that the basis for the conclusion is otherwise apparent
    from the record. Unfortunately, the SCAJ did not go on to identify what portions
    of the record made those conclusions apparent.

[26]

What
    I see as apparent from the record is that almost immediately upon stopping the
    respondents vehicle, Constable Lieverse advised the respondent that he was
    looking for an impaired driver. He then proceeded to ask questions of the
    respondent that were directly related to that purpose. There cannot have been any
    doubt in the respondents mind as to why his vehicle was stopped. Consequently,
    there is no basis for a finding that either the temporal or informational
    elements of the respondents s. 10(a) rights were breached:
R. v. Roberts
,
    2018 ONCA 411, at para. 63.

[27]

There
    was a delay in advising the respondent of his rights to counsel under s. 10(b),
    but that delay was in order to determine whether there was a reasonable grounds
    to believe that the respondent was impaired, such as to warrant a roadside
    breath demand through an Approved Screening Device. The Supreme Court of Canada
    confirmed in
R
. v. Orbanski
;
R. v. Elias
, at para. 52
    that giving rights to counsel can be delayed during the time required to
    implement a roadside breath demand. In this case, once the respondent failed
    the roadside test, he was immediately advised of his rights to counsel. The
    SCAJ erred in upholding the trial judges conclusion that the respondents s.
    10(b) rights had been violated again, apparently, on the basis that is was a
    finding of fact entitled to deference. It was not.

[28]

Finally,
    the trial judges finding that there was a breach of the respondents s. 8
Charter

rights to be free from unreasonable search and seizure flowed from her erroneous
    conclusion that there had been a breach of the respondents s. 9 rights
    resulting from an arbitrary detention. I have already said that there was no
    arbitrary detention. Both the roadside demand and the subsequent breathalyser
    test are expressly authorized by the
Criminal Code
and were properly
    implemented in this case. Once Constable Lieverse smelled alcohol on the
    respondents breath, he was entitled to administer a roadside test. When the
    respondent failed that roadside test, Constable Lieverse was entitled to arrest
    the respondent and conduct a breathalyser test: see,
e.g
.
, this
    courts most recent review of these principles in
R. v. Notaro
, 2018
    ONCA 449, at paras. 34-44. Neither of these tests involved any breach of the
    respondents s. 8
Charter
rights.

[29]

The
    SCAJ compounded the errors below by simply deferring to the trial judges
    finding that there had been an arbitrary detention instead of reviewing her
    conclusions for correctness in law.

[30]

In
    the end result, each of the trial judges findings of
Charter
breaches
    was erroneous because of her legally incorrect conclusion regarding Constable Lieverses
    reason for stopping the respondents vehicle. The trial judge therefore erred
    in excluding the breathalyser evidence and the respondents statements.

[31]

As
    a result, this court must determine the appropriate remedy. Section
    686(4)(b)(ii) of the
Criminal Code
authorizes a court of appeal in
    indictable appeals to enter a verdict of guilty on an appeal from an acquittal.
[3]
This court is entitled to enter a finding of guilt in respect of the index offence
    where this court concludes that the respondent should have been found guilty,
    but for the error of law committed by the trial judge:
R. v. Labadie
, 2011
    ONCA 227, 105 O.R. (3d) 98, at para. 61. In this case, the respondent fairly
    conceded that, if the breathalyser results and the statements were not excluded
    under s. 24(2) of the
Charter
, there was sufficient evidence to
    convict the respondent of driving over 80.

Conclusion

[32]

It
    is for these reasons that the appeal was allowed. The decision of the SCAJ, and
    the acquittal entered by the trial judge, are both set aside. In its place, I
    would enter a conviction. I would remit the matter back to the Ontario Court of
    Justice for sentencing.

Released: GP JUN 26 2018

I.V.B. Nordheimer J.A.

I agree. C.W. Hourigan J.A.

I agree. G. Pardu J.A.





[1]

Leave to appeal was granted by endorsement dated February
    16, 2018 (Docket M48393).



[2]

The Treaty Three Police Service is a First Nation
    self-administered police service. Members of the Treaty Three Police Service are
    appointed as First Nations Constables by the Commissioner of the OPP pursuant
    to s. 54 of the
Police Services Act
, R.S.O. 1990, c. P.15.



[3]

By virtue of s. 839(2), the powers of the court of
    appeal under s. 686(4)(b)(ii) apply to summary conviction appeal matters.


