R. v. Bush (G.G.) (2010), 268 O.A.C. 175 (CA)
MLB headnote and full text
Temp. Cite: [2010] O.A.C. TBEd. SE.017
Her Majesty the Queen (appellant) v. Garth G. Bush (respondent)
(C48968; 2010 ONCA 554)
Indexed As: R. v. Bush (G.G.)
Ontario Court of Appeal
Blair and LaForme, JJ.A. and Durno, J.(ad hoc)
August 17, 2010.
Summary:
Bush was convicted of impaired driving and sentenced. He appealed.
The Ontario Superior Court allowed the appeal, ordering a new trial. The Crown appealed.
The Ontario Court of Appeal allowed the appeal, restoring the conviction and sentence.
Courts – Topic 583
Judges – Duties – Re reasons for decisions (incl. notes) – Bush was convicted of impaired driving and sentenced – His summary conviction appeal was allowed – At issue on the Crown’s appeal was whether the trial judge had reversed the burden of proof – At the outset of her ruling on Bush’s s. 8 Charter application, the trial judge noted that because Bush’s breath samples were obtained as a result of a warrantless search, the onus was on the Crown to establish that the arresting officer had reasonable and probable grounds to make the breath sample demand – However, in her conclusion, the trial judge stated that Bush had not met the onus of establishing a breach of s. 8 – The Ontario Court of Appeal allowed the Crown’s appeal, restoring the conviction and sentence – In determining whether the trial judge had erred, the reasons had to be read as a whole and not held to an abstract standard of perfection – Misstatements did not necessarily undermine the reasons – Where conflicting onuses were stated, it was necessary to examine the balance of the reasons to determine if the onus was correctly applied – Here, the trial judge stated the correct onus at the outset with a reference to binding authority and misstated it six pages later – The onus on a warrantless search was a law with which trial judges routinely worked – The erroneous two lines were more a reflection of being drafted and edited without the required diligence than of the onus that was applied – Even if the trial judge had applied the wrong onus, it would have made no difference – She considered the appropriate factors and arrived at the correct decision – The result would have been the same – See paragraphs 73 to 85.
Criminal Law – Topic 1362
Offences against person and reputation – Motor vehicles – Impaired driving – Evidence and proof – [See
Courts – Topic 583
].
Criminal Law – Topic 1372
Offences against person and reputation – Motor vehicles – Impaired driving – Breathalyzer or blood sample – Demand – Reasonable grounds – Shortly after midnight, a taxi driver reported a person (Bush) driving erratically and stated that he believed that Bush was impaired – Constable Lucas was dispatched – The dispatcher told him that a civilian reported erratic driving and believed that the driver was impaired – Before Lucas was able to intercept Bush, Bush’s car collided with a parked truck, pushing the truck over lanes of traffic and into a light pole – There was extensive damage – Lucas spoke briefly with the taxi driver, who had followed Bush – The taxi driver confirmed that he had phoned 911 and that Bush was the driver that he had observed – Lucas spoke with Bush, noting a smell of alcohol on his breath, red and glassy eyes and that he was weaving while standing – Within “a minute give or take” from his arrival on the scene, Lucas arrested Bush for impaired driving and made a breath sample demand – Bush was convicted of impaired driving and sentenced – His summary conviction appeal was allowed on the basis, inter alia, that the trial judge had erred in proceeding as if there was a reduced standard for reasonable and probable grounds in drinking and driving cases – A new trial was ordered – The Ontario Court of Appeal allowed the Crown’s appeal, restoring the conviction and sentence – The trial judge appropriately took into consideration the context in which the officer’s breath sample demand was made – An assessment of whether the officer objectively had reasonable and probable grounds to make the demand did not involve the equivalent of an impaired driver scorecard – There was no mathematical formula with a certain number of indicia being required – The absence of some indicia did not necessarily undermine a finding of reasonable and probable grounds based on observed indicia and available information – Consideration of the totality of the circumstances included the existence of an accident – That the accident might have caused some of the indicia relied on (e.g. airbag deployment causing red eyes) when they could also have been caused by alcohol consumption did not mean that the officer had to eliminate those indicia from consideration – Here, in assessing whether reasonable and probable grounds objectively existed, the trial judge appropriately considered that there had been an accident – The appeal judge erred in finding that the trial judge had permitted the accident to “muddy the waters” – See paragraphs 35 to 58.
Criminal Law – Topic 1372
Offences against person and reputation – Motor vehicles – Impaired driving – Breathalyzer or blood sample – Demand – Reasonable grounds – Bush was convicted of impaired driving and sentenced – His summary conviction appeal was allowed – On the Crown’s appeal, Bush asserted, inter alia, that his arrest amounted to a “rush to justice” and that more investigation was required before making the breath sample demand, including making a roadside screening device demand and interviewing the driver and witnesses – The Ontario Court of Appeal allowed the Crown’s appeal, restoring the conviction and sentence – There was no minimum time period nor mandatory questioning that had to occur before an officer could objectively have reasonable and probable grounds – There was no requirement that a roadside sample be taken – An officer was required to assess the situation and competently conduct the investigation he or she felt appropriate – In some cases, that might include interviewing witnesses and/or the suspect if necessary – In others, the officer’s observations and information known at the time might readily establish the requisite grounds – That an opinion of impairment could be made in under a minute was neither surprising nor unusual – Here, the officer could rely on the report of erratic driving that appeared to be consistent with the driver being intoxicated, that the driver had struck a truck the officer knew was parked at the extreme side of the road with ample space for cars to pass, propelling the truck to the other side of the road, and that the driver had the odour of alcohol on his breath, bloodshot eyes, and was swaying – See paragraphs 59 to 72.
Criminal Law – Topic 1372
Offences against person and reputation – Motor vehicles – Impaired driving – Breathalyzer or blood sample – Demand – Reasonable grounds – Bush was convicted of impaired driving and sentenced – His summary conviction appeal was allowed – On the Crown’s appeal, Bush asserted, inter alia, that his arrest amounted to a “rush to justice” and that more investigation was required before making the breath sample demand, including making a roadside screening device demand and interviewing the driver and witnesses – The Ontario Court of Appeal allowed the Crown’s appeal, restoring the conviction and sentence – The court stated that “A trained police officer is entitled to draw inferences and make deductions drawing on experience. Here, the investigating officer had 18 years’ experience. The trial judge was entitled to take into consideration that experience and training in assessing whether he objectively had reasonable and probable grounds. … In addition, in determining whether reasonable and probable grounds exist, the officer is entitled to rely on hearsay.” – See paragraph 61.
Criminal Law – Topic 5217
Evidence and witnesses – Burden of proof – Allocation of (between Crown and accused) – [See
Courts – Topic 583
].
Criminal Law – Topic 7602
Summary conviction proceedings – Appeal to a court of appeal – Requirement of leave – Bush was convicted of impaired driving and sentenced – His summary conviction appeal was allowed and a new trial was ordered – The Crown sought leave to appeal – The Ontario Court of Appeal allowed the application notwithstanding the Crown’s inordinate delay in perfecting the appeal – The summary conviction appeal judge’s findings regarding the reasonable and probable grounds required to make a breath sample demand and the duties of police officers conflicted with binding and persuasive authorities – The issues relating to reasonable and probable grounds had significance to the administration of justice beyond the facts of this case – Further, an issue had arisen as to whether the trial judge had reversed the burden of proof – While the legal issues were not in dispute, the failure of the summary conviction appeal judge to refer to the trial judge’s correct statement of the onus of proof and to consider the issue merited review – See paragraphs 24 to 34.
Police – Topic 3105
Powers – Investigation – Impaired driving (incl. sobriety tests etc.) – [See all
Criminal Law – Topic 1372
].
Practice – Topic 8817
Appeals – General principles – Duty of appellate court where trial judge fails to give or gives inadequate reasons for judgment – [See
Courts – Topic 583
].
Cases Noticed:
R. v. Haas (T.) (2005), 201 O.A.C. 52; 76 O.R.(3d) 737 (C.A.), leave to appeal refused (2005), 349 N.R. 397; 215 O.A.C. 395 (S.C.C.), refd to. [para. 13].
R. v. Golub (D.J.) (1997), 102 O.A.C. 176; 34 O.R.(3d) 743 (C.A.), refd to. [para. 14].
R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 19].
R. v. Censoni (L.M.), [2001] O.T.C. 948 (Sup. Ct.), refd to. [para. 19].
R. v. Uppal, 1995 CarswellOnt 4566 (Prov. Ct.), disagreed with [para. 21].
R. v. R.R. (2008), 238 O.A.C. 242; 90 O.R.(3d) 641 (C.A.), refd to. [para. 24].
R. v. Moreno-Baches (T.), [2007] O.A.C. Uned. 125; 2007 ONCA 258, refd to. [para. 34].
R. v. Oliveira (A.) (2009), 247 O.A.C. 156; 2009 ONCA 219, refd to. [para. 34].
R. v. Davis-Harriot (A.), [2010] O.A.C. Uned. 103; 2010 ONCA 161, refd to. [para. 34].
R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 37].
R. v. Bernshaw (N.), [1995] 1 S.C.R. 254; 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1, refd to. [para. 38].
R. v. Berlinski (M.), [2001] O.A.C. Uned. 17 (C.A.), refd to. [para. 38].
R. v. Jacques (J.R.) and Mitchell (M.M.), [1996] 3 S.C.R. 312; 202 N.R. 49; 180 N.B.R.(2d) 161; 458 A.P.R. 161, refd to. [para. 42].
R. v. Smith (J.M.) (1996), 88 O.A.C. 374; 28 O.R.(3d) 75 (C.A.), refd to. [para. 45].
R. v. Wang (Z.) (2010), 263 O.A.C. 194; 2010 ONCA 435, refd to. [para. 46].
R. v. Deighan (G.W.), [1999] O.A.C. Uned. 184 (C.A.), refd to. [para. 47].
R. v. Stellato (T.) (1993), 61 O.A.C. 217; 78 C.C.C.(3d) 380; 12 O.R.(3d) 90 (C.A.), affd. [1994] 2 S.C.R. 478; 168 N.R. 190; 72 O.A.C. 140, refd to. [para. 47].
R. v. Rhyason (B.P.) (2007), 365 N.R. 200; 412 A.R. 282; 404 W.A.C. 282; 2007 SCC 39, refd to. [para. 54].
R. v. Elvikis (O.) (1997), 31 O.T.C. 161 (Gen. Div.), refd to. [para. 54].
R. v. McClelland (B.L.) (1995), 165 A.R. 332; 89 W.A.C. 332 (C.A.), refd to. [para. 55].
R. v. Costello (M.), [2002] O.A.C. Uned. 5; 22 M.V.R.(4th) 165 (C.A.), reving. [2001] O.J. No. 2109 (Sup. Ct.), refd to. [paras. 56, 63].
R. v. Duris (D.), [2009] O.A.C. Uned. 496; 2009 ONCA 740, refd to. [para. 57].
R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1, refd to. [para. 61].
R. v. Lewis (D.E.) (1998), 107 O.A.C. 46; 38 O.R.(3d) 540 (C.A.), refd to. [para. 61].
R. v. Squires (D.) (2002), 159 O.A.C. 249; 59 O.R.(3d) 765 (C.A.), refd to. [para. 65].
R. v. Musurichan (1990), 107 A.R. 102 (C.A.), refd to. [para. 66].
F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, appld. [para. 78].
R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161, refd to. [para. 78].
R. v. Perka, Nelson, Hines and Johnson, [1984] 2 S.C.R. 232; 55 N.R. 1, refd to. [para. 87].
Counsel:
Christopher Webb, for the appellant;
David Paciocco, for the respondent.
This appeal was heard on March 17, 2010, by Blair and LaForme, JJ.A., and Durno, J.(ad hoc), of the Ontario Court of Appeal. On August 17, 2010, Durno, J.(ad hoc), released the following judgment for the court.
