1992 C.H. 80004 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: GERALD ARTHUR CHABOT V. HER MAJESTY THE QUEEN HEARD: before the Honourable Justice F. B. William Kelly, Supreme Court of Nova Scotia, March 23, 1993. DECISION: March 23, 1993 RELEASED: July 6, 1993 COUNSEL: J. Scott D. Grant KELLY, J. (Orally) On the night of June 21, 1991, Corporal Matthews of the Dartmouth Police was conducting plain‑clothes surveillance of certain building in Dartmouth, Nova Scotia, as directed by his Police Chief who had based the instruction upon complaints that the place was operating as an "after‑hours" club. Surveillance had also been conducted by other persons prior to that time and the results were brought to the attention of Corporal Matthews. The essence of the observations were that number of people were entering and leaving the dub at late hours and were believed to be under the influence of alcohol. At about 11:40 p.m. on June 21, 1991, Corporal Matthews observed the accused Mr. Gerald Chabot and his wife enter these premises. About an hour and half later, at approximately 1:00 a.m. the following morning, Corporal Matthews noted the couple leaving the premises and Mr.Chabot driving off with his wife in their vehicle. Corporal Matthews then radioed two other police officers to stop the Chabot vehicle. He advised the court that it was his intention to seek information to be used in an attempt to obtain search warrant of the suspected after‑hours club for possible Liquor Control Act violations. Neither Corporal Matthews nor the two police officers who stopped Mr. Chabot observed the vehicle being driven in any irregular or improper manner. The two officers stopped the vehicle, and one of them noted strong smell of alcohol coming from Mr. Chabot's breath and his speech was somewhat slurred. Mr. Chabot was then taken to the police van and it was noticed that he was staggering and that his eyes were very red. Based on these observations, the constable arrested Mr. Chabot for impaired driving, read him the breathalyser demand, and gave him the usual Charter of Rights warning. Mr. Chabot was then taken to the police station where he eventually agreed to take the usual two breathalyser tests, which tests resulted in readings of 170 and 160 milligrams of alcohol in 100 millilitres of blood. At trial, Mr. Chabot was convicted by Judge Fran Potts of the breathalyser charge contrary to s. 253 (b) of the Criminal Code and was acquitted on s. 253 (a) charge for impaired driving. Included in Mr. Chabot's evidence was his statement that he had had two drinks of rum at another location prior to going to the alleged after‑hours place, and he stated that he had one beer at that location. He also advised the court that he had taken some mints and cough drops while at the police station and before he took the two breathalyser tests. The decision of Judge Potts has been appealed on four grounds, and it is submitted by counsel for the appellant that the four grounds can be encompassed into two issues as follows: (1) Was the arrest of the accused an arbitrary arrest and thus a violation of his rights under s. 9 of the Charter? If so, should the evidence thereby obtained as result of the Charier contravention be excluded? (2) Was the evidence of the amount the accused had to drink ‑ and the effect of the drink on the accused ‑ sufficient to constitute "evidence to the contrary" to rebut the presumption of s. 258 of the Criminal Code? If so, was it sufficient to result in an acquittal of the accused? Dealing first with the issue of arbitrary arrest, the ground of appeal in this regard states: That the learned Provincial Court Judge erred in law by admitting evidence obtained by the police as result of the police violating the defendants Charter of Rights by arbitrarily detaining him contrary to Section of the Charter when the police arrested him with view to questioning him in connection with an after hours club that was under investigation. It is clear that the judge found that Mr. Chabot was stopped as furtherance of the investigation of the police into the after‑hours club. The thrust of the appeal under this ground is that detention for the purpose of an investigation constitutes breach that is an arbitrary detention, and thus constitutes breach under s. of the Charter. Section states as follows: Everyone has the right not to be arbitrarily detained or imprisoned. There is no argument in this matter that Mr. Chabot was detained; "detained" in the sense of the Charter section. What is disputed is whether or not the detention was arbitrary. As authority for the submission that detention of this nature, that is detention to further an investigation, is contravention of the Charter, counsel for the appellant has referred me to R. Duguay, Murphy and Sevigny, [1989) 1989 CanLII 110 (SCC), S.C.R. 93, 56 D.L.R. (4th) 46, 46 C.C.C. (3d) (S.C.C.). This is decision of the Supreme Court of Canada where the majority found that the Ontario Court of Appeal had applied the proper principles of law to the facts of the particular case in excluding evidence. MacKinnon, A.C.J.O. speaking for the majority at the appeal level [(1985) 1985 CanLII 112 (ON CA), 18 C.C.C. (3d) 289,] stated at p. 296: In my view, on the facts as found by the trial judge, the arrest or detention was arbitrary, being for quite an Improper purpose namely, to assist in the investigation. This conclusion does not minimize the significance or importance of an experienced detective's 'hunch' or intuition. Such 'hunch' must, however, have some reasonable basis. It cannot be used as defence and explanation, without examination, for irrational and high‑handed actions. In that particular case, the majority of the Court of Appeal found that the arrest had not been made in good faith and was deliberate breach of the Charter made for an illegal purpose. They determined that the court could not turn blind eye to that conduct, for to do so would be condonation of police misconduct. What Duguay does stress is that detention based on reasonable grounds may not and probably would not contravene the Charter right of an accused. That is, if it can be established that the police officers in question had reasonable and probable grounds for their detention. In this regard, Judge Potts stated at p. 57 of the transcript of evidence as follows: Corporal Matthews then instructed other members of the Dartmouth City police who were operating police van to stop the defendant's vehicle. His instruction being that they were to stop the vehicle to check to see if there was any alcohol Involved with respect to the driver of the vehicle. Clearly from. his evidence the intention being that if the vehicle were stopped and it were found that the driver indeed was involved in the consumption of alcohol, they would then continue on to determine whether or not they might get evidence from Mr. Chabot with respect to this suspected after hours club. Certainly it was not random stop in the sense that not just any vehicle was being picked out to be stopped. The vehicle driven by the defendant was picked out particularly because the vehicle was observed at this particular residence; the defendant was observed to have entered this particular residence and to have remained there for some period of time; and he was observed leaving the residence and getting into the ‑‑ to his vehicle and indeed he was seen driving away from this particular area. And further on pp. 58‑59: Was there any reason to believe that Mr. Chabot had committed any offence? Certainly the Criminal Code sets out that peace officer may make demand for person to submit to an A.L.E.R.T. if he reasonably suspects that that person has alcohol in his body. On the evidence before me is there any evidence to from which the police could have reasonably suspected that Mr. Chabot had alcohol in his body? It seems to me under the circumstances of this particular case the observations that the police made with respect to this particular residence ‑‑ number of individuals who went to the residence, came out of the residence; number of individuals who were observed obviously to have been drinking as they emerged from that residence it seems to me under those circumstances the police would have had reason to suspect that the defendant had alcohol in his body. And certainly according‑to the evidence of Corporal Matthews that was the reason that he was having the vehicle stopped to determine if in fact the defendant had been involved in the consumption of alcohol albeit that his intention went further in the sense that were he successful in determining that the defendant had alcohol in his body he intended to further continue the investigation of the after hours club by questioning Mr. Chabot. Under the circumstances, therefore, before me find that the police had reason to suspect that the defendant had alcohol in his body. They therefore had grounds to stop the vehicle. Having grounds to stop the vehicle obviously they then proceeded after having stopped him to make certain observations from which they concluded that indeed the defendant's ability to operate motor vehicle was impaired by alcohol and under the circumstances would find that the defence has not established that the defendant's rights pursuant to Section have been infringed or denied and, therefore, there is no need to go onto further consideration with respect to Section 24(2). Counsel have assisted me by reference to various authorities regarding the nature of an arbitrary detention, and in particular to R. v. Hufsky (1988), 1988 CanLII 72 (SCC), 40 C.C.C. (3d) 398 (S.C.C.), and R. v. Ladouceur (1990), 1990 CanLII 108 (SCC), 77 C.R. (3d) 110 (SCC). Both decisions deal with the matter of arbitrary detention and random detention of an accused. In Hufsky at p. 407 the court discussed when the exercise of discretion of police officer becomes arbitrary. At that page, Le Dain, J., speaking for the court, stated that: discretion is arbitrary if there are no criteria, express or implied, which govern its exercise. The circumstances before Judge Potts were not dissimilar to the circumstances in R. v. Wilson (1990), 1990 CanLII 109 (SCC), 77 C.R. (3d) 137 (S.C.C.), where Cory, J., delivering the decision of the majority, stated at p. 142: Second, in this case the stopping of the appellant was not random, but was based on the fact that the appellant was driving away from hotel shortly after the closing time for the bar and that the vehicle and its occupants were unknown to the police officer. While these facts might not form grounds for stopping vehicle in downtown Edmonton or Toronto, they merit consideration in the setting of rural community. In case such as this, where the police offer grounds for stopping motorist that are reasonable and can be clearly expressed (the articulable cause referred to in the American authorities), the stop should not be regarded as random. As result, although the appellant was detained, the detention was not arbitrary in this case and the stop did not violate s. of the Charter. In the fact situation before me, it is clear that the police officers involved were not acting arbitrarily or in a random fashion. They, in fact, had advanced a reasonable basis and had an articulable cause for stopping the vehicle in question, and I find that Judge Potts was not in error in law or in her finding of facts in her decision in that regard. The second ground deals with whether the evidence of the amount of alcohol consumed and the extent that it might have constituted "evidence to the contrary" to rebut s. 258 of the Criminal Code. This issue encompasses the final three grounds of the appeal which state: That the learned Provincial Court Judge erred in law by failing to instruct herself correctly as to the admissibility or weight of evidence given by the accused as to the amount of alcohol he consumed over the relevant period. That the learned Provincial Court Judge erred in law by failing to give effect to the opinion of the crown expert that the amount consumed by the accused would not have given the readings which appeared on the certificate and therefore constituted evidence to the contrary. That the learned Provincial Court Judge erred in law by failing to instruct herself with respect to the burden on the Crown. In this respect, the defence submits that the evidence advanced by the accused as to the amount that he had to drink was proven through the Crown expert to be such that it should result in reading significantly less than the alcohol concentration forbidden under s. 258 of the Code. further submission is that there was evidence that the consumption of certain mints and cough drops might give higher reading than was caused by the presence of alcohol. Judge Potts considered the evidence to this effect and concluded at p. 119 of the transcript: The difficulty then have is clearing (sic) there is evidence from the defendant with respect to his belief at least as to how much alcohol he had to consume and clearly there is evidence from the Crown expert acknowledging that based on the defendant's own evidence with respect to what alcohol he had to consume that the ‑‑ that particular consumption would not support the readings which are contained on the Certificate of Analysis. As indicated earlier though the evidence of the expert is only as meaningful only becomes meaningful if it is based on reliable and admissible evidence. Certainly with respect to Mr. Chabot it is clear that with the exception of his evidence with respect to the consumption of the beer at this address on Chappell Street [the place under observation] there is essentially in my view no admissible evidence with respect to the other consumption that he spoke of. Indeed his evidence on the consumption of this rum was based according to his evidence on his conversations with his wife and what she told him with respect to how that alcohol was served clearly that is evidence which is hearsay evidence. And hearsay evidence being evidence or being information supplied by third party and evidence which the defence or the Crown in particular circumstances seeks to adduce for the proof of it. Certainly there are lots of circumstances in which both‑ Crown and defence are entitled to present evidence of what third party has said provided that it is not being introduced to prove the truth. In this particular circumstance if it is not being introduced for the truth of it, then it seems to me it has no meaning whatsoever because if it's not being used for the truth of it, then it has no meaning in terms of the subsequent opinion of the expert. Under the circumstances, therefore, it seems to me that cannot rely even as much as acknowledge the evidence of Miss Baughan [the expert] that based on the defendant's testimony as to what he had consumed would not square with the results of the breathalyser that opinion has no meaning in my view where it is based on the evidence of the defendant, evidence which in my view is not admissible. The submission of the appellant is that there was some admissible evidence supporting the appellant's submission regarding consumption, other than the evidence of his wife, and that was statement made at page 66 of the transcript by the appellant himself in response to question as to whether he was relying on what his wife told him and is as follows: No. I'm relying on what know and what she told me, yes. We were together. I'd have no reason to tell you different. Essentially, based on that response, the appellant contends that there was some evidence as to the amount the appellant had drank on the night in question. Very briefly, his evidence was that he had two drinks and that he believed from what his wife had told him those two drinks were poured from small bottles, and based on either his own estimate or estimates from his wife, those bottles would contain one and one‑half ounces of rum each. In R. v. Kays (1987), 62 C.R. (3d) 193 (S.C.,A.D.), Chipman, J.A., delivering the decision of the court, reviewed authorities on the consideration of "evidence to the contrary' to rebut the presumption of the breathalyser offence. After reviewing these authorities at pp. 197‑202, he concluded at pp. 202‑203: On the basis of the foregoing authority am of the opinion that "evidence to the contrary" within the meaning of s. 241(1)(c) [now s. 258(1)(c)] of the Criminal Code must be evidence which raises reasonable doubt that the accused's blood‑alcohol concentration, at the time of the alleged offence, exceeded 80 mg of alcohol in 100 ml of blood. It is not enough that the evidence offered merely shows that the accused's blood‑alcohol concentration may have been either higher or lower than the readings set out in the certificate. The proposition enunciated in Crosthwait, supra, that "evidence to the contrary" must raise reasonable doubt that the accused's blood‑alcohol concentration exceed the permissible level has been accepted and applied in number of instances. The difficulty with the evidence tendered in the case at bar is that it does not tend to show that the respondent's blood‑alcohol level was within the permitted limits. It is at most evidence from which court might conclude that that level could at the time of the alleged offence have been different from the level in the certificate. do not find that the learned Provincial Court Judge misinterpreted the evidence "to the contrary". find she applied the correct principles of law in relation to the evidence of the expert and the evidence of alcohol consumption. do not find that the trial judge failed to instruct herself as to the admissibility or weight of the evidence relating to alcohol consumption by the accused. She concludes her decision as follows: Under the circumstances there being no admissible evidence upon which the expert could express that opinion am not satisfied under the circumstances that there is evidence which is capable in this circumstance of being evidence to the contrary and with respect to the first count on the information, that is the charge contrary to Section 253(b) of the Criminal Code, find that the Crown has established its case beyond reasonable doubt and find the defendant guilty of the offence as charged. am satisfied that in applying the burden the learned trial judge properly instructed herself on the law, that is, that the burden is on the Crown to establish the case beyond reasonable doubt. I find generally that the verdict of the learned trial judge was a verdict based on allthe evidence, one which a jury properly instructed and acting judicially could reasonably have rendered I therefore dismiss the appeal J. Halifax, Nova Scotia
The appellant was detained after leaving a suspected 'after hours' club which was under surveillance by police. He was charged with a breathalyzer offence, and was convicted. He appealed, arguing his s. 9 Charter rights had been violated. He also contended the evidence of the amount of alcohol he had consumed on the night in question constituted 'evidence to the contrary' which rebutted the presumption in s. 258 of the Criminal Code. Dismissing the appeal, that the police officers were not acting arbitrarily or in a random fashion when they detained the appellant, and had a reasonable basis for stopping his vehicle. The appellant's contention he consumed only two small bottles (1-1/2 ounces each) of rum, plus some cough syrup and mints, did not constitute evidence to the contrary to rebut the presumption of the breathalyzer offence. On Appeal.