R. v. McGarry, 2014 ONCJ 416

Court File and Parties

Court File No.: Newmarket Date: June 20, 2014 Ontario Court of Justice

Between: Her Majesty the Queen — and — Ryan Michael McGarry

Heard: January 20, June 20, 2014 Reasons: June 20, 2014

Counsel: Ms. Lori Thompson for the Crown Mr. David Gomes Self Represented

JUDGMENT

KENKEL J.:

Introduction

1Mr. McGarry drove through a RIDE checkstop despite police direction to stop. He then stopped his car on an angle a distance from the checkstop. Police blocked his car and he was investigated for drinking and driving. He was arrested for impaired driving and breath tests at the station resulted in truncated readings of 150 and 160 mgs of alcohol per 100ml of blood.

2At the conclusion of the evidence, the following issues remain:

• whether the investigating officer had reasonable grounds for the arrest and demand,
• whether the accused's right to speak with counsel of choice was breached,
• if the accused's section 8 or 10(b) Charter rights were breached, whether evidence obtained as a result of the breach should be excluded under s.24(2),
• whether the Crown has proven the alleged impairment beyond a reasonable doubt.

Section 8 – Reasonable Grounds for the Demand

3The defence submits that the arresting officer did not have reasonable grounds to arrest the accused and demand a breath sample pursuant to s.254(3).

4Police set up a RIDE spot check in both directions on Stouffville Road which is a major highway. There were 6 police cars there including unmarked vehicles. All of the police cars had their full lighting package flashing to alert approaching motorists. The police put up pylons to direct traffic and provide further notice of the stop. The officers were wearing safety vests to increase their visibility. The officers had flashlights which they waved at traffic to direct cars to stop.

5The accused approached the checkstop at a higher rate of speed than other vehicles. The check stop was 165 yards (football field and a half) from the part of a hill where it would be first visible to oncoming drivers. He did not slow as he approached and he did not slow until after he drove through the check point. He failed to react to the circumstances and the direction of the police until after he passed a second officer who was yelling at him to stop. After he drove through the check stop in the curb lane he then slowed his car and stopped in the centre lane of traffic on an angle away from the check stop area. Given the driving and manner of stop on an angle a police cruiser blocked in the accused's car.

6Constable Skanes spoke with the driver and he noted:

• the accused's speech was slurred
• he stepped from the vehicle very slowly
• his face was flushed and eyes were bloodshot
• there was a strong odour of alcohol coming from his mouth

7Constable Skanes considered the accused's failure to stop for the RIDE spot check, the manner of stop and his own observations of the accused and formed the belief that the accused's ability to operate his vehicle was impaired by alcohol consumption. The Crown and defence differ as to whether the officer's subjective belief was objectively reasonable.

8The defence submits that the officer's noting of unusual behaviour such as the accused's kicking the police car tires at the station and advising the officers of how much the side mirrors of his police car cost shows an agenda on the part of the officer to cast observations that might have other causes as symptoms of impairment. The defence submits that also casts doubt on the credibility of the officer's observations at the roadside. I agree with the defence that there might reasonably be other explanations for the accused's actions and some circumstances don't assist much in advancing the Crown's case as to impairment, but there's nothing improper about the officer's noting behaviour he found unusual and there's no evidence of any agenda in that or other evidence that could reasonably detract from the credibility of the officer's evidence.

9The accused's failure to stop as directed or even slow down until after he drove through the check point was potentially dangerous and a significant failure in perception and reaction time. I find the Crown has proved that the driving, the manner of stop and the observations of the accused all reasonably provide a sufficient objective basis for the officer's belief.

Section 10 – Counsel of Choice

10The accused testified on the Charter voir dire that the officer advised him of his right to speak with counsel and said he had the right to speak with a duty counsel or another lawyer. He told police, "I don't have a lawyer" and he asked to speak to duty counsel. The accused's evidence is generally consistent with the more detailed evidence of Constable Skanes who advised the accused in standard terms that he had the right to retain and instruct counsel without delay, and that he had the right "… to telephone any lawyer you wish …". The accused testified that he didn't know of any lawyer to call and chose to call duty counsel.

11Constable Skanes called duty counsel as requested and the accused spoke to that lawyer from 0007h to 0015h. When the call was completed he was turned over to the breath technician for testing. He did not express any dissatisfaction with that call at the time nor did he make any further request to speak with a lawyer.

12Citing R. v. Pita 2013 ONCJ 716, the defence submits that when the accused says that he or she does not have a lawyer, the police are now required to explain to the accused that he has other options to search for a lawyer other than an immediate call to duty counsel. The defence acknowledges that there are many possible ways for someone to contact a lawyer (via third party, phone books, internet search etc.) and the defence is not suggesting any particular wording or number of alternatives that must be described to comply with s.10(b). The defence submits though that where a person states that they don't have a lawyer and want to speak to duty counsel that the police must ensure they understand they can search for a private lawyer if they wish.

13Pita was a case where the court found "special circumstances" existed for more detailed s.10(b) advice and in that case the court found the particular simplified wording conveyed a binary choice between duty counsel and a lawyer already retained or known by the accused. The court noted that the accused did speak to duty counsel, did not express dissatisfaction with that advice and did not express an interest in calling her sister to look for a lawyer on her behalf until the accused testified at trial. Although a breach was found, it was not one that resulted in exclusion of evidence under 24(2).

14In this case the accused was advised of his right to speak with counsel in standard format including the right to "telephone any lawyer you wish". He chose to speak with duty counsel, did not ask to speak to any other lawyer and did not express any dissatisfaction with that advice at the time. Constable Skanes was mindful of the requirements of s.10(b) and facilitated contact with duty counsel as requested. He then went further and called the accused's girlfriend as requested to explain that Mr. McGarry could not pick her up.

15I find no evidence of a s.10 breach.

Impaired Operation

16Constable Skane's observation of slurred speech was not seen later at the station by the breath technician Constable Hawthorne. PC Hawthorne concluded that the accused's ability to operate a motor vehicle was impaired to a "slight" degree, but his evidence shows that he included the accused's breath test readings in forming that opinion.

17Given that Mr. McGarry did stop after passing the RIDE check it's unlikely that he was deliberately trying to drive past the police. His failure to react to the RIDE officers and stop as they directed may well show impaired perception and reaction time due to alcohol consumption, but given the initial speed as observed by the officers and the difference between the officers' estimates in stopping distance, I find that the Crown has not proved that beyond a reasonable doubt.

Conclusion

18The Crown has proved reasonable grounds for the demand and the defendant has otherwise failed to prove the Charter breaches alleged on the balance of probabilities. The Crown has proved beyond a reasonable doubt that the accused was driving with a blood alcohol level in excess of the legal limit as alleged. There will be a finding of guilt on that count. The Impaired Driving charge will be dismissed.