DATE: 19990609
DOCKET: C30535
COURT OF APPEAL FOR ONTARIO
FINLAYSON, AUSTIN and MOLDAVER JJ.A.
BETWEEN: )
) Jennifer Woollcombe
HER MAJESTY THE QUEEN ) for the appellant
)
Appellant )
)
- and - ) David Harris
) for the respondent
DAVID COUTTS )
)
Respondent )
) Heard: April 13, 1999
)
On appeal from the Order of Glass J. dated August 19, 1998
MOLDAVER J.A.:
[1] The Crown applies for leave to appeal and if leave is
granted, appeals from the order of Mr. Justice Glass dated August
19, 1998, allowing the respondent’s appeal from conviction by his
Honour Judge Scott of the Ontario Court (Provincial Division) and
entering a verdict of acquittal on a charge of operating a motor
vehicle with a blood alcohol level in excess of .80 mg. (driving
over .80) contrary to s. 253(b) of the Criminal Code.
[2] The Crown seeks to have the following legal issue
determined:
Where a motorist has failed a roadside screening test1
and been charged with driving over .80, can the trier
of fact use the test result to discredit evidence
capable of constituting “evidence to the contrary”
within the meaning of s. 258(1)(d.1) of the Criminal
Code?
This issue has given rise to a number of
conflicting decisions in the provincial and superior
courts of this province. To date, it has not been
squarely addressed by this court. Accordingly, I would
grant leave to appeal.
OVERVIEW
[3] The respondent was stopped by a police R.I.D.E. program at
8:12 p.m. on July 17, 1997. The investigating officer detected an
odour of alcohol on the respondent’s breath and she demanded that
he provide a sample of his breath into an approved roadside
screening device. The respondent complied and at 8:14 p.m. he
registered a “fail.” He was then placed under arrest for driving
over .80 and after being cautioned and advised of his rights to
counsel, he was asked to accompany the officer to the police
station to provide samples of his breath suitable for analysis.
[4] At the station, after exercising his right to counsel, the
respondent provided two samples of his breath into an approved
breathalyzer instrument. The samples, taken at 9:12 p.m. and 9:32
p.m., produced readings of 120 mg. and 110 mg. respectively. The
respondent was then charged with driving over .80 and released
from the station.
[5] At trial, relying on what has come to be known as the
“Carter” defence,2 the respondent and two supporting witnesses
testified that on the day in question, he consumed a moderate
amount of alcohol. The defence then called an expert in
toxicology who testified that based on the respondent’s reported
consumption, his blood alcohol level at the time of the alleged
offence would have been well below the legal limit.
[6] Had this evidence been accepted or raised a reasonable doubt
in the mind of the trial judge, it would have constituted
“evidence to the contrary” within the meaning of s. 258(1)(d.1)
of the Criminal Code, thereby foreclosing the Crown from relying
upon the breathalyzer results as proof that the respondent’s
blood alcohol level exceeded .80 mg. at the time of the alleged
offence. As it is, after considering the whole of the evidence,
the trial judge rejected the defence evidence as unreliable. In
his view, although the respondent and his supporting witnesses
were doing their best to tell the truth, they were simply
mistaken about the amount of alcohol he had consumed. In coming
to this conclusion, the trial judge placed considerable emphasis
on the fact that the respondent had failed the roadside screening
test and he used this evidence to impeach the reliability of the
defence evidence.
[7] On summary conviction appeal, Glass J disapproved of the
trial judge’s use of the roadside test result. In his view, it
was impermissible for the trier of fact to use that evidence to
discredit “evidence to the contrary.” Based on the record and
the trial judge’s findings, Glass J. concluded that had the trial
judge ignored the roadside test result, he would have given
effect to the “evidence to the contrary” and acquitted the
respondent. Accordingly, he allowed the appeal, set aside the
conviction and entered a verdict of acquittal.
[8] The Crown does not take issue with Glass J.’s substitution
of a verdict of acquittal if he was otherwise correct in
concluding that the trial judge erred in using the test result as
he did.
ANALYSIS
[9] The controversy surrounding the use of roadside test results
to discredit “evidence to the contrary” arises principally from
two decisions of this court: R. v. Gilbert (1994), 92 C.C.C. (3d)
266 and R. v. Milne (1996), 107 C.C.C. (3d) 118, leave to appeal
denied [1996] S.C.C.A. No. 353. Ironically, neither case dealt
with the issue at hand.
[10] Gilbert was concerned with the type of evidence capable of
constituting “evidence to the contrary” within the meaning of s.
258(1)(c) of the Code.3 At Gilbert’s trial for driving over .80,
the trial judge expressed the view that where “evidence to the
contrary” consists of an indirect attack on the accuracy of the
breathalyzer readings, to raise a reasonable doubt as to accuracy
of the results, it was necessary for the accused to challenge
either the functioning or operation of the breathalyzer
instrument. Specifically, in convicting Gilbert, he rejected the
argument put forward on his behalf that “evidence to the
contrary” could consist only of the accused’s evidence of alcohol
consumption, buttressed by the calculations of a toxicologist.
[11] On appeal, the summary conviction appeal court judge quashed
his conviction and ordered a new trial on the basis that he could
not be certain that the trial judge had rejected Gilbert’s
evidence as to his alcohol consumption.
[12] On further appeal to this court, Osborne J.A., writing for
the court, disapproved of the trial judge’s restrictive
interpretation of the words “evidence to the contrary.” In his
view, evidence of the accused’s alcohol consumption buttressed by
expert evidence could constitute “evidence to the contrary”
within the meaning of s. 258(1)(c) of the Code. Nonetheless,
after considering the trial judge’s reasons as whole, Osborne
J.A. was satisfied that he had in fact rejected the defence
evidence as to Gilbert’s alcohol consumption. Accordingly, the
appeal was allowed and Gilbert’s conviction was restored.
[13] For present purposes, the decision is important because in
the course of his reasons, Osborne J.A. expressed the view that
in deciding whether to give effect to evidence tendered as
“evidence to the contrary,” it was incumbent on the trier of fact
to consider all of the evidence, including the accused’s
breathalyzer results, absent the statutory presumption, and the
roadside test result. The relevant passage, at p. 281, reads as
follows:
It was open to the trial judge to consider the respondent’s
breathalyzer readings (and the fact that he failed the A.L.E.R.T.
test)4 in the determination of whether to accept the tendered
evidence to the contrary. In my opinion, the trial judge made it
clear that he rejected “the defence evidence as to alcohol
consumption.” On the basis of the trial judge’s findings of
fact, there was no evidentiary foundation to support the
conclusion that at the time of the offence, the respondent’s
blood-alcohol concentration was below .80. Accordingly, I think
that the trial judge was correct in finding the respondent guilty
based upon the lower of his two breathalyzer test readings – 128
mg. of alcohol in 100 ml. of his blood. [Emphasis added.]
[14] Understandably, many trial judges, including the trial judge
in the present case, have taken the parenthesized words to mean
that roadside test results can be used to discredit “evidence to
the contrary.” It must, however, be emphasized that the court in
Gilbert was not called upon to decide whether it was
constitutionally permissible for the Crown, on a charge of
driving over .80, to use the test results to discredit “evidence
to the contrary.”
[15] The same can be said about this court’s subsequent decision
in Milne. The issue in Milne was whether the Crown could use
conscriptive evidence created as a result of a motorist’s
required participation in physical roadside co-ordination tests5
to prove impairment on a charge of impaired driving.
[16]
Writing for the court, I concluded that it was constitutionally
permissible to require a detained motorist to participate in
sobriety and roadside tests without the need to advise the
motorist of his or her s. 10(b) rights. That conclusion, however,
hinged on the fact that such tests were not meant to provide the
police with a means of gathering evidence that could later be
used at trial to incriminate the motorist on a charge of impaired
driving or driving over .80. Rather, they were to be used solely
as a means of confirming or rejecting the officer’s suspicion
that the detained motorist might be impaired or over the legal
limit. So long as the tests were confined to that purpose, it
could not be said that the evidence resulting from them was
obtained unfairly or in a manner which violated the motorist’s s.
10(b) Charter rights.
[17] On the other hand, bearing in mind the limited purpose of
compulsory roadside and sobriety testing, I concluded that it
would be constitutionally impermissible for the police to compel
a detained motorist to participate directly in the creation of
self-incriminatory evidence that could be later used at trial to
convict a motorist of impaired driving or driving over .80,
absent a requirement that the motorist be advised of his or her
s. 10(b) Charter rights. It was my belief that such a regime
would not pass s. 1 Charter scrutiny. Accordingly, I was
satisfied that the admission of the test results at trial to
incriminate the motorist would render the trial unfair.
[18] In sum, Milne determined that where motorists are compelled
to submit to sobriety and roadside testing without being advised
of their s. 10(b) Charter rights, the Crown cannot use the test
results at trial to incriminate the motorist on a charge of
impaired driving or driving over .80. Milne did not address the
issue whether the Crown could use roadside test results to
discredit “evidence to the contrary” on a charge of driving over
.80. That, of course, is the issue at hand.
[19] On behalf of the appellant, Ms. Woollcombe takes no issue
with the proposition that on a charge of driving over .80, the
Crown cannot use the roadside test result as affirmative evidence
of the accused’s guilt. In accordance with Milne, supra, she
accepts that the use of the test result for that purpose would
render the trial unfair. She submits, however, that the concern
about trial fairness is attenuated, if not eliminated, where the
Crown seeks to use the roadside test result not as a sword but as
a shield to discredit “evidence to the contrary.” In other
words, in terms of trial fairness, she argues that a distinction
should be drawn between evidence used to incriminate the accused
and evidence used to impeach "evidence to the contrary" adduced
by the defence.
[20] Before considering the constitutional implications of the
distinction proposed by Ms. Woollcombe, I feel obliged to point
out that on the basis of this record, even if I were to accept
her argument, I would nevertheless dismiss the appeal. I say that
because in the final analysis, the evidentiary value of roadside
test results to discredit “evidence to the contrary” is dependent
on the fact that roadside screening devices are calibrated to
register a “fail” where a motorist has a blood-alcohol level
equivalent to or greater than 100 mg. of alcohol per 100 ml. of
blood. And yet, no evidence was led in this case to establish
that critical fact. Nor for that matter, was there any evidence
as to when the screening device was last calibrated or whether it
was in proper working order.
[21] Manifestly, where a roadside test is being used solely for
the purpose of confirming or rejecting a police officer’s
suspicion that a motorist might be impaired or over the legal
limit, none of these facts need be proved. It is sufficient if
the administering officer reasonably believes them to be true.
Where, however, the test result is being offered for the truth of
its contents, these facts must be proved by admissible evidence.
Therefore, even if it was open to the trial judge to use the test
result to discredit the “evidence to the contrary” adduced by the
respondent, the evidentiary foundation needed to do so was
missing.
[22] Returning to the main issue, the distinction which Ms.
Woollcombe proposes is which the Supreme Court of Canada has,
albeit in a slightly different context, refused to recognize.
[23] In R. v. Calder (1996), 105 C.C.C. (3d) 1 (S.C.C.),
following a violation of his s. 10(b) rights, Calder was
compelled to incriminate himself by making a statement to the
arresting police officers. After the trial judge had excluded the
statement under s. 24(2) of the Charter, the Crown sought to have
it admitted for the limited purpose of impeaching Calder’s
testimony. The trial judge refused to admit the statement for
that purpose and Calder was ultimately acquitted. The Crown’s
appeal to this court proved unsuccessful and the matter came
before the Supreme Court of Canada.
[24] Writing for the majority, Sopinka J. held that the fact that
the Crown now sought to have the statement admitted for the
limited purpose of impeachment was not a material change in
circumstances sufficient to warrant a change in the trial judge’s
ruling. Importantly, in the course of his analysis, Sopinka J.
considered the broader implications of the distinction which the
Crown was proposing and in particular, whether such a distinction
should be drawn for the purposes of s. 24(2). At para. 34, he
explained why, in theory and practice, no meaningful distinction
could be drawn, for the purposes of s. 24(2), between evidence
used to incriminate and evidence used to impeach an accused’s
testimony on cross-examination:
[34] The effect on the repute of the administration of
justice is to be assessed by reference to the standard of the
reasonable, well-informed citizen who represents community
values. The effect of destroying the credibility of an accused
who takes the stand in his or her defence using evidence obtained
from the mouth of the accused in breach of his or her Charter
rights will usually have the same effect as use of the same
evidence when adduced by the Crown in its case-in-chief for the
purpose of incrimination. The fact that a jury carefully
instructed can apply the distinction does not mean that use for
the purpose of impeachment will, in the eyes of the jury, have a
less detrimental effect on the case of the accused. Moreover, in
determining admissibility under s. 24(2), it is not the carefully
instructed juror who is the arbiter of the effect on the
administration of justice but rather the well-informed member of
the community. This mythical person does not have the benefit of
a careful instruction from the trial judge on the distinction.
Not only will that person not tend to understand the distinction
in theory, but, in any event, will regard the distinction as
immaterial in assessing the effect on the repute of the
administration of justice. If use of the statement is seen to be
unfair by reason of having been obtained in breach of an
accused’s Charter rights, it is not likely to be seen to be less
unfair because it was only used to destroy credibility. [Emphasis
added.]
In the final analysis, although he did
not foreclose the possibility, Sopinka J.
made it clear that very special circumstances
would be required before evidence, otherwise
found to be inadmissible under s. 24(2),
could be used for the limited purpose of
impeaching an accused’s testimony.
[25] Some two years later, the Supreme Court of Canada revisited
the Calder issue in R. v. Cook (1998), 128 C.C.C. (3d) 1. Cook
was charged with second degree murder and in the course of his
trial, a voir dire was held to determine the admissibility of a
facially exculpatory statement he had given to the police on
arrest. Although satisfied that the statement was obtained in
violation of Cook’s s. 10(b) Charter rights, the trial judge,
over the objection of defence counsel, permitted the Crown to use
the statement for the limited purpose of impeaching Cook’s
testimony. In determining that the statement need not be excluded
under s. 24(2), the trial judge relied on the distinction between
incriminating evidence tendered by the Crown for the truth of its
contents and evidence that is not self-incriminating and is used
only to challenge the credibility of the accused on cross-
examination.
[26] Cook was convicted of second degree murder and his appeal to
the British Columbia Court of Appeal was dismissed. On further
appeal, the Supreme Court of Canada set aside the conviction and
ordered a new trial on the basis that Cook’s statement should not
have been admitted into evidence under s. 24(2).
[27] Writing for the majority on this issue, Cory and Iacobucci
JJ. rejected the submission that Cook’s statement should be
characterized as “non-conscriptive” evidence because it was
facially exculpatory. Referring to the court’s earlier decision
in R. v. Stillman (1997), 113 C.C.C. (3d) 321 (S.C.C.), they
summarized the distinction between conscriptive and non-
conscriptive evidence at para. 69:
… Non-conscriptive evidence is evidence which “existed
independently of the Charter breach in a form useable by the
state” (at para. 75); by contrast, evidence “will be conscriptive
when an accused, in violation of his Charter rights, is compelled
to incriminate himself at the behest of the state by means of a
statement, the use of the body or the production of bodily
samples” (at para. 80).
With this distinction in mind, at pp. 71-
72, they concluded that:
A statement that is largely or even wholly exculpatory
should still be considered “conscriptive” evidence if an accused
was, like the appellant, conscripted against himself by being
compelled, in breach of his Charter rights, to provide evidence
which could later be used against him.
Therefore, the appellant’s statement is
conscriptive evidence. This is not a case
where the evidence would have been discovered
absent the unlawful conscription of the
appellant (see Stillman, at para. 103). These
factors alone would be sufficient to conclude
that the evidence must be excluded under s.
24(2). This follows, since the general rule
is that the admission of conscriptive
evidence which would not have been discovered
in the absence of the conscription of the
accused will render the trial unfair.
[28] Having determined that Cook’s statement was conscriptive
evidence and that its contents would not have been discovered but
for his unlawful conscription, Cory and Iacobucci JJ. went on to
consider whether, in line with Calder, special circumstances
existed which would warrant its reception under s. 24(2) for the
limited purpose of impeaching Cook’s testimony. Their conclusion
in this regard is set forth at para. 76 and 77 of the judgment:
[76] It is not necessary to speculate what “special
circumstances” would be required to allow the admission of
evidence for a limited purpose that was not otherwise admissible.
In our view those circumstances would be very rare indeed. In
this case, there are no special circumstances which would justify
such a finding. Rather, we find that there should be no
difference, for the purposes of deciding whether to exclude the
evidence under s. 24(2), between the admission of evidence
generally and admission for the limited purpose of challenging
the credibility of the accused. [Emphasis added.]
…
[77] As a result, we must conclude
that the trial judge erred in his analysis of
the applicability of s. 24(2). We prefer the
analysis of the Alberta Court of Appeal in a
recent case that considered the same issue:
R. v. Whitford (1997), 115 C.C.C. (3d) 52
(Alta. C.A.). In that case, Berger J.A. found
that evidence used to incriminate the accused
and evidence used to impeach the accused’s
credibility should be treated the same for
the purposes of s. 24(2). He put it in this
way, at p. 62:
A court should treat incrimination
evidence and impeachment evidence in like
manner when determining unfairness of a trial
under s. 24(2). [Emphasis in original.]
…
I conclude that the Crown’s
strategic choice at trial to use the evidence
only for impeachment purposes does not lessen
the standard for admissibility. Acceptance of
a lesser standard would encourage Charter
breach in order to achieve tactical advantage
at trial. A statement obtained in breach of
the Charter for impeachment purposes, it
would be thought, is better than no statement
at all. In the case [at] bar, the trial focus
on the credibility of the complainant and the
Appellant leads me to conclude that it would
be unfair to admit the evidence for purposes
of cross-examination.
[29] In light of Cook, I am satisfied that where a court is faced
with conscriptive evidence that would not have been discovered
absent the unlawful conscription of the accused, the Crown is now
foreclosed, for the purposes of s. 24(2), from seeking to have
the evidence admitted for the limited purpose of impeaching an
accused’s testimony. As Cory and Iacobucci JJ. observed, the use
of the evidence for that purpose would render the trial unfair.
[30] In terms of trial fairness, I am unable to discern a
meaningful distinction between the proposed use of the roadside
test result in this case and the use that the Crown sought to
make of the impugned statement in Cook. Admittedly, the analogy
is not exact because in Cook, the statement was obtained in
violation of the accused’s s. 10(b) Charter rights, whereas here,
the roadside test result was not. But that is only so because
roadside testing, conducted for the limited purpose of screening
out motorists who might be impaired or over the legal limit, has
been found to be constitutionally permissible, absent a
requirement that the motorist be advised of his or her s. 10(b)
Charter rights. In that sense, and that sense alone, fair trial
considerations pose no constitutional impediment to the
introduction of roadside test results for the purpose of
establishing the grounds needed to justify a demand under s. 254
of the Criminal Code.
[31] To the extent, however, that the Crown seeks to use the
roadside test results at trial to impeach “evidence to the
contrary,” I am of the view that the principles in Milne, supra,
apply, such that the use of the evidence for that purpose would
render the trial unfair. The unfairness arises because the
motorist has been compelled, at the behest of the state, to
provide evidence that would not have been obtained but for the
motorist’s participation in its construction and the evidence is
being tendered for a purpose beyond that contemplated by s.
254(2) of the Code.6
[32] Apart from constitutional considerations, on a practical
level, it seems to me that where roadside test results are
proffered for the limited purpose of discrediting “evidence of
the contrary,” there is a real danger that they will be used not
for that purpose, but rather, to bolster the reliability of the
breathalyzer readings. To illustrate the point, I need only refer
to a handful of cases where judges have used the roadside test
results in precisely that fashion.
[33] In R. v. Davis, [1999] O.J. No. 513 (Ont. Prov. Ct.), at
para. 14, the trial judge said:
If the breathalyzers are so reliable, what difference does
the addition of the screening results make? Simply this.
Although well-designed and well-trained, the machine and
operators are not infallible (hence the rebuttability of the
presumption). Faced with credible defence witnesses, a court
might have a reasonable doubt that for some unknown reason one or
the other caused a mistake. Mistakes rarely happen, especially of
the magnitude such that the actual BAC [Blood Alcohol
Concentration] was not over .80, but maybe this is one of the
rare ones. However, what are the chances that another device,
operating with a different method of alcohol detection, and
administered by a different police officer would yield the same
false result? … The screening devices may not be as accurate or
reliable as the breathalyzers. However, the probability of a
false screening result occurring in relation to the same person
as a false breathalyzer result is far smaller than the
probability of a false breathalyzer result alone. [Emphasis
added.]
[34] In R. v. Stock, [1996] O.J. No. 2857 (Ont. Prov. Ct.), at
para. 22, the trial judge observed:
To suggest that both types of machines could be inaccurate
simultaneously becomes nothing more than a speculative
possibility.
[35] Likewise, in R. v. Haverkate, [1998] O.J. No. 1307 (Ont.
Prov. Ct.), at para. 16, the trial judge stated:
I prefer and accept the Crown evidence that the accused
failed the roadside screening test and later provided two BAC
readings at 160. The consistency of these various tests and the
results is obvious and real. [Emphasis added.]
[36] And finally, in R. v. Domazet, unreported, November 20, 1998
(Ont. Gen. Div.), the summary conviction appeal judge said:
This Alcotest would support the relative accuracy of the
breathalyzer administered at the station in a timely manner.
Neither the Alcotest nor the breathalyzer could support the
calculations of Mr. Kupferschmidt [the defence toxicologist]
based on the alleged three beers. [Emphasis added.]
CONCLUSION
[37] For these reasons, I am satisfied that where evidence
capable of constituting “evidence to the contrary” under s.
258(1)(d.1) of the Criminal Code is adduced on a charge of
driving over .80, the Crown is not at liberty to use the roadside
test result to discredit that evidence. It follows that the
summary conviction appeal court judge was correct in concluding
that the trial judge erred in using the test result for that
purpose. Accordingly, I would dismiss the appeal.
“M. Moldaver J.A.” “I agree: G.D. Finlayson J.A.” “I agree: Austin J.A.”
Released: June 9, 1999
_______________________________
1 The terms “roadside screening test” and “roadside test” are
used throughout to denote the testing of a motorist conducted at
the roadside by means of an approved screening device under s.
254(2) of the Criminal Code.
2 R. v. Carter (1985), 19 C.C.C. (3d) 174 (Ont. C.A.).
3 Section 258(1)(d.1) was not in force at the time. It was
enacted after the Supreme Court of Canada’s decision in R. v. St.
Pierre (1995), 96 C.C.C. (3d) 385 and proclaimed in force on June
16, 1997.
4 Short for – Alcohol Level Evaluation Roadside Tester, the
screening device then in use.
5 Hereafter referred to as “sobriety tests” conducted pursuant
to s. 48(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8.
6 See Milne, supra, at pp. 127-128 and 133-134. |