Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Stephen Biggs
Before: Justice Andrea E.E. Tuck-Jackson
Heard on: September 29, 30, 2014; January 14, February 18, 25, 2015
Reasons for Judgment released on: March 9, 2015
Counsel:
Mr. G. Kim — for the Crown
Ms. J. Johnson — for the accused Stephen Biggs
TUCK-JACKSON J.:
I. Overview
1Stephen Biggs stands charged that he, on or about the 15th day of December, 2012 did, while his ability to operate a motor vehicle was impaired by alcohol, have care or control of a motor vehicle, and that he did, while having consumed such a quantity of alcohol that he had a blood-alcohol concentration in excess of the legal limit, have care or control of a motor vehicle.
2The theory of the Crown is advanced through the testimony of P.C. James Doyle, the arresting officer, and that of P.C. Sylvie Guay, the qualified breath technician. The Crown also relies upon certain audio-/video-recorded evidence, informative of Mr. Biggs's interactions with the police.
3The defence seeks to exclude evidence of all of P.C. Doyle's observations of Mr. Biggs, as of when the officer first interacted with him at the roadside, on the basis that such evidence was obtained in violation of Mr. Biggs's rights against unreasonable search or seizure and arbitrary detention, as guaranteed by § 8 and 9, respectively, of the Canadian Charter of Rights and Freedoms. On the strength of the impugned observations, together with some made earlier, the officer made an approved instrument demand of Mr. Biggs. It is the position of the defence that this demand violated Mr. Biggs's § 8 Charter rights and that evidence of Mr. Biggs's blood-alcohol concentration, as generated through subsequent testing by an approved instrument of Mr. Biggs's breath samples, ought to be excluded, pursuant to § 24(2) of the Charter.
4Even if I were to admit the evidence of Mr. Biggs's blood-alcohol concentration, it is the position of the defence that the Crown cannot rely on the presumption of identity, as set out in ¶ 258(1)(c) of the Criminal Code, on the basis that it has not established that each of Mr. Biggs's two breath samples were taken "as soon as practicable" after the time when the offence was alleged to have occurred, as contemplated by ¶ 258(1)(c)(ii) of the Code. In the result, the Crown cannot prove that Mr. Biggs's blood-alcohol concentration, at the time that he was in care of control of his motor vehicle, exceeded the legal limit.
5With respect to the count of impaired care or control, it is the position of the defence that the Crown has not proven the essential element of impairment by alcohol beyond a reasonable doubt.
6The case proceeded by way of a blended voir dire and trial. Mr. Biggs took the witness stand on his own behalf and I am to apply his testimony to the issues arising during the voir dire and the trial proper. The defence called three additional witnesses, namely, Kimberley Hollier, Kevin Biggs and P.C. Doug Leonard.
II. Summary of the Relevant Evidence
1. The Impugned Driving
7It is the theory of the Crown that shortly before 1:37 a.m. on December 15, 2012, P.C. James Doyle observed a Dodge Caravan, driven by Steven Biggs, operating in a suspicious manner. The officer eventually caught up with the van, parked in a lot that services a McDonald's restaurant. At 1:37 a.m., the officer engaged Mr. Biggs, the van's sole occupant, in a conversation and, on the strength of a constellation of observations made prior to, and after, that roadside encounter, he formed an honest suspicion, reasonably held, that Mr. Biggs had alcohol in his system.
8It is the position of the defence that P.C. Doyle did not see Mr. Biggs operating his van at the time the officer contends. Mr. Biggs claimed that he had parked his Dodge Caravan in the McDonald's parking lot before midnight, walked to a nearby licensed establishment where he consumed a quantity of beer, and then returned to his parked van not long before P.C. Doyle interacted with him in the parking lot by McDonald's. Mr. Biggs communicated this account via his Affidavit, marked as Ex. 1 on the voir dire, and through testimony.
A. Account of P.C. Doyle
9P.C. James Doyle of 22 Division's Traffic Services commenced his shift at 11:00 p.m. on December 14, 2012. During the early morning hours of December 15, 2012, the officer was operating a black scout car, with working lights and equipment, in the area of Kipling Avenue and Dundas Street West, Toronto. As he headed east on Dundas, the officer spotted a van parked on Avonhurst Road, facing north, just above of Dundas. Avonhurst runs north from Dundas between Kipling to the west and Mabelle Avenue to the east. Mabelle Avenue runs south off Dundas. In the officer's experience, Mabelle is a "high criminal area" within 22 Division. In that area there is a lot of drug activity. There have been infrequent break and enter offences in homes to the north of this area at this time of night. In the past, P.C. Doyle has arrested people in possession of stolen older model vans, similar to that which he had spotted, and the officer was aware that the last person located in a Dodge Caravan in that area had been committing break and enter offences. Further, with respect to the occupants of similar models, he has enforced other criminal and provincial laws. In light of the foregoing, P.C. Doyle felt he should investigate this particular van, parked at the side of the road, for the purposes of "community safety". In the result, P.C. Doyle executed a u-turn on Dundas and then turned north onto Avonhurst.
10The officer entered Avonhurst and positioned his vehicle behind the parked van. The officer could hear the van's engine running and its lights were on. As the officer pulled in behind the van, it "sped up" from its parked position and executed a u-turn. The officer made a mental note of the van's licence plate. It read, "BLCT 582".
11Avonhurst is a two-lane roadway. As the van completed the u-turn, its front passenger tire mounted the opposing curb and then dismounted, returning to the roadway. The manoeuvre left the officer with the impression that it had been executed in haste. It struck the officer as odd that, in the circumstances, the driver had not simply performed a three-point turn if the driver's intent was simply to leave his location.
12The van headed south on Avonhurst and then turned west onto Dundas. The officer pursued it. The two vehicles passed Kipling Avenue and approached the area of 5230 Dundas Street West. Westbound Dundas is comprised of three lanes at this location. The officer occupied the middle lane and the van was in the inside or passing lane. Eventually, they were beside one another. The officer could see that the van's driver was a white male. (Mr. Biggs may fairly be described as Caucasian.) At this juncture, the van's driver suddenly, and with no apparent attempt to decelerate, crossed the turning lane that divides east- and west-bound traffic and pulled into a parking lot on the south side of Dundas, just east of Shorncliffe Road, where a McDonald's restaurant is situated. P.C. Doyle noted that from the point that the van had turned onto Dundas from Avonhurst, to when it had turned into the parking lot, it was swaying back and forth within its lane. The officer described the driving as "awkward" and "kind of erratic". The distance over which the weaving occurred was less than a kilometre. The van was not, however, speeding. Though taken aback by the van's sudden turn, P.C. Doyle's attention was drawn to a Honda Civic that had just run a red light at Dundas and Shorncliffe. The officer opted to investigate the driver of the Civic who, as it turned out, was lost in the neighbourhood. The officers permitted the occupants to continue on their way without laying any charges. This investigation occupied, at the most, maybe three minutes of his time.
13At this point P.C. Doyle returned to the McDonald's at 5453 Dundas, a distance of approximately a quarter of a kilometre from Shorncliffe. The officer spotted the same red Dodge Caravan, facing eastbound. It was not parked within a stall parking spot; instead, the driver had positioned the van across three such spots, perpendicular to the ordinary orientation. P.C. Doyle pulled in behind the van. He ran the van's plate identifiers, BLCT 582, on his onboard computer and advised the dispatcher of the reason for his stop. He then exited from his scout car. It was, according to the officer's iPhone, 1:37 a.m. P.C. Doyle was adamant that his observations of the van's operation occurred "directly before" his interaction with the Honda Civic at Shorncliffe.
B. Account of Mr. Biggs
14On December 14, 2012, Mr. Biggs was working as a delivery man for Cheers Premium Express. In this role, he delivers cigarettes, liquor and beer to private homes and also picks up empty bottles from customers. That night, he had an open eight-pack of Max Ice beer. Four or five bottles remained in the box. He had delivered the other three or four bottles.
15Mr. Biggs began work at 9:45 a.m. and finished at either 10:30 or 11:30 p.m. He went home at 10:30 or 10:45 p.m. only to discover that his girlfriend had changed the locks at their residence. He was very upset and drove about a mile to the plaza near his home. He reached the parking lot between 10:45 and 11:45 p.m. He parked his van near the McDonald's restaurant and walked to the James Gate Pub located on the north side of Dundas. He chose that parking spot as it was convenient and he wanted to avoid being towed. He agreed that in straddling three spots, he did not park correctly. He elaborated that he parked in this fashion because he was "stressed, depressed, in a bit of a frenzy". He was "not thinking straight". It took him 15 minutes on foot to get to the pub. He arrived there between 12:00 and 12:15 a.m. on what was now December 15, 2012. At the pub, he consumed three bottles of Molson Canadian beer. He finished drinking at about 12:45 a.m. and called his friend Kim Hollier at around 12:50 a.m., just as he was leaving the pub. He then went to the McDonald's where he purchased a hamburger. As he put it, he tried to "sober up" with the walk back. He returned to his van, turned on the engine in order to warm up his van, and then, reclined in his seat, began to eat his hamburger. Ms. Hollier called back at around 1:30 a.m. In speaking with Ms. Hollier, he agreed to abandon his vehicle and take public transit or a cab to her home where he would spend the night on her couch.
2. Interaction Between Mr. Biggs and P.C. Doyle In the Parking Lot
16The accounts of P.C. Doyle and Mr. Biggs as to what transpired in the McDonald's parking lot differed on material points. The court had the benefit of an audio-/video-recording of the encounter captured by the in-car camera fixed to the officer's scout car, together with the officer's portable microphone. According to the officer, that recording accurately captures the exchange between him and Mr. Biggs. A DVD of this recording was marked as Ex. 1 at the trial.
17Mr. Biggs's account was derived from his own, apparently unaided, recollection of the events. The account was communicated via the aforementioned Affidavit, as amplified through his testimony. While the defence does not appear to contest the accuracy of the DVD marked as Ex. 1, it does maintain that it is not necessarily a complete record of what transpired between Mr. Biggs and P.C. Doyle.
A. Accounts of P.C. Doyle, P.C. Leonard & the In-Car Video
18As P.C. Doyle walked towards the van, he noticed that the van's exterior lights were on, he could hear the engine running, and he could see exhaust emerging from its exhaust pipe. As the officer approached the front of the van, the driver, later identified as Steven Biggs, rolled down his window. He was the van's sole occupant. Mr. Biggs was leaning back in his seat, eating a hamburger purchased at McDonald's. His seatbelt was undone. The dashboard lights were illuminated and the officer noted that the vehicle was in "park". As was standard practice at night, P.C. Doyle checked out the interior of the van with the aid of his flashlight.
19The officer, who was dressed in uniform, greeted Mr. Biggs, asked for his driver's licence, and engaged him in a brief conversation, the details of which are summarized at ¶ 27, infra. P.C. Doyle did recall that Mr. Biggs often responded to the officer's questions by stating, "why are you asking that question?" During the course of that initial exchange, P.C. Doyle made a number of observations. He saw what appeared to be an empty 40 oz. Black Ice beer bottle in the footwell area of the bench seats in the middle of the van. He also described it as an "open" bottle in the sense that it was loose in the car and not in a box. In cross-examination he readily conceded that by reason of the lighting conditions, he could not tell whether the beer bottle was capped or uncapped. [1] He also acknowledged that he did not question Mr. Biggs regarding the presence of this beer bottle in his van. By way of additional observations, the officer noted that Mr. Biggs's eyes seemed bloodshot and his face appeared to be "flushed red". He appeared to be talking "okay". The officer could not "gauge" Mr. Biggs's breath.
20On the combined strength of Mr. Biggs's driving and parking performances as witnessed by the officer not long beforehand, the presence of the loose beer bottle in the van, together with the physical symptoms of a flushed face and bloodshot eyes, P.C. Doyle formed the suspicion that Mr. Biggs had alcohol in his system. The officer made an informally worded demand that Mr. Biggs provide a sample of his breath into an approved screening device at the roadside. He intended to communicate the formal wording of the demand from his memo book once Mr. Biggs had relocated to the front of the scout car.
21In the officer's view, he felt he had insufficient grounds at this juncture to arrest Mr. Biggs for the offence of impaired care or control, largely because he could not gauge if Mr. Biggs had the odour of alcohol on his breath. On the strength of the approved screening device test result, he hoped to determine if there was, indeed, a quantity of alcohol in Mr. Biggs's body.
22Following the informal roadside breath demand, and consistent with his practice, P.C. Doyle explained to Mr. Biggs the consequences of failing to submit to a roadside breath test. Mr. Biggs then exited from his van, leaving the officer with the impression that he was going to accompany him to his car for the purpose of submitting to breath testing. However, instead of complying, Mr. Biggs told the officer that he was leaving, and attempted to walk off. This caught the officer off guard. P.C. Doyle believed that Mr. Biggs was going to walk or run away from him. As the officer put it, the situation escalated very quickly. P.C. Doyle took Mr. Biggs by the arm. Shortly thereafter, he called out for assistance over the radio. As he was speaking with the dispatcher, P.C. Doyle was wary of the keys that Mr. Biggs held in a fisted hand. P.C. Doyle attempted to place Mr. Biggs under arrest for refusing to provide a breath sample into an approved screening device. According to P.C. Doyle, Mr. Biggs was "actively resisting" arrest. Eventually P.C. Doyle was able to gain control over Mr. Biggs and handcuff him.
23P.C. Doyle moved Mr. Biggs towards his scout car. Before placing him in the rear of the car, the officer searched him, incidental to arrest. It was at this time that the officer noticed, for the first time, a strong smell of alcohol coming from Mr. Biggs's breath. P.C. Doyle also noticed that Mr. Biggs's speech was slurred. Unlike before, when the officer had not detected an odour of breath alcohol or slurred speech, the two men were now close in proximity and Mr. Biggs no longer had food in his mouth. As the officer executed the search of Mr. Biggs's person, the latter presented as unsteady on his feet. He swayed. Though Mr. Biggs was handcuffed to the rear, P.C. Doyle was in no way pushing his arrestee. When the officer was not touching him, it appeared as though Mr. Biggs had to brace himself, with his hip against the scout car, in order to keep himself from moving back and forth. Mr. Biggs's face continued to present as flushed and his eyes remained bloodshot. [2]
24On the strength of these additional observations, P.C. Doyle concluded that he had reasonable and probable grounds to believe that Mr. Biggs had been in care or control of a motor vehicle while his ability to operate it was impaired by alcohol. At approximately 1:43 a.m., some six minutes after their interaction at the van had commenced, P.C. Doyle re-arrested Mr. Biggs, this time for the offence of "impaired care or control". He immediately read Mr. Biggs his rights to counsel, cautioned him regarding his right to silence, and administered the approved instrument demand. The officer took the necessary steps to collect Mr. Biggs's property and spoke with P.C. Doug Leonard, one of a number of officers who arrived on scene in response to P.C. Doyle's request for assistance, about having Mr. Biggs's vehicle impounded. The officer made a quick note of certain times in his memo book and waited for a tow truck, that was blocking his exit, to move.
25P.C. Doyle left the scene at 1:48 a.m., some 11 minutes after his interaction with Mr. Biggs at the van had commenced. They headed to 22 Division.
26The in-car video captures much of the encounter between Mr. Biggs and P.C. Doyle in the parking lot. The recording is time-stamped. There is an audio component to the recording. It captures more of what P.C. Doyle had to say than what Mr. Biggs communicated, presumably because the microphone was attached to the officer's person.
27Exhibit 1 indicates that P.C. Doyle pulls up behind the van at 1:35 a.m. It is evident that the van's engine is on. Exhaust is coming out of the tail pipe and the taillights are lit up. P.C. Doyle approaches the van and can be seen carrying a flashlight that is turned on. P.C. Doyle can be heard to ask Mr. Biggs how he is and then request his driver's licence. Mr. Biggs's response is inaudible. At 1:36 a.m., P.C. Doyle asks Mr. Biggs if he has been drinking and it seems that Mr. Biggs replies in the negative, though the response is somewhat difficult to make out. The officer then asks Mr. Biggs if he will submit to a roadside test. Mr. Biggs's response is inaudible. The officer can then be heard to say, "Why am I asking these questions", as if he is parroting what Mr. Biggs has just said to him. The officer again asks Mr. Biggs if he will submit to a roadside test, but the response is, again, inaudible. The officer next indicates that he "gonna get the box", an apparent reference to the approved screening device. He then explains to Mr. Biggs that refusing to submit to a roadside test "is the same as being charged with impaired driving". Mr. Biggs can be heard to point out that he is not driving and the officer responds by indicating that Mr. Biggs is, nonetheless, in care or control of his motor vehicle. The officer then advises Mr. Biggs that there is a camera in the officer's scout car. It is at this juncture that Mr. Biggs twice advises P.C. Doyle that he is getting out of his vehicle. Just shortly before 1:37 a.m., Mr. Biggs exits from his van. At this point P.C. Doyle can be heard, for the second time, to ask Mr. Biggs for his driver's licence. Instead of producing the licence, Mr. Biggs states, "I don't have to talk to you. Bye." He then walks away from the officer. P.C. Doyle immediately grabs Mr. Biggs by the arm, pulls him back, and directs him to get his hands behind his back. The officer has Mr. Biggs pinned against the van. Mr. Biggs can be heard to say, "Officer, I'm talking to you". The officer immediately gets on the radio and requests assistance. Mr. Biggs appears to be struggling and the officer can be heard directing Mr. Biggs to put his "fucking arms behind [his] back". Shortly before 1:38 a.m., Mr. Biggs can be heard telling P.C. Doyle that he is not drunk. The officer's struggle to gain control over Mr. Biggs continues. At 1:38 a.m., the officer advises Mr. Biggs, once again, to put his hands behind his back. When Mr. Doyle asks why, the officer explains that he is placing him under arrest "for refusing to blow into a roadside". Mr. Biggs responds by stating that he is not refusing. At 1:39 a.m., P.C. Doyle again directs Mr. Biggs to put his hands behind his back and further directs him to drop his keys. Shortly after 1:39 a.m., P.C. Doyle is successful in handcuffing Mr. Biggs and can be seen leading him back in the direction of the scout car. From this point forward, Mr. Biggs is no longer visible on the screen, but can repeatedly be heard to ask, "what's going on". At 1:40 a.m., other scout cars arrive, presumably in response to P.C. Doyle's request for assistance. Thereafter, it is apparent that the police are searching Mr. Biggs's van. Eventually, at 1:48 a.m., P.C. Doyle's scout car pulls out of the parking lot. As he leaves, a tow truck is visible in the area behind where P.C. Doyle had parked.
B. Accounts of Mr. Biggs & Kimberley Hollier
28As he ate his hamburger, a light shining into his van startled Mr. Biggs. He heard a knock on his window. He did not know who it was. He rolled down his window and was asked by a man, dressed in black, to provide his driver's licence, registration and insurance and Mr. Biggs replied, "ok". Mr. Biggs asked the man who he was, or he might have asked him why he was asking "this question" and, at that time, the man identified himself as a police officer. (Mr. Biggs conceded in cross-examination that after the man asked him for his driver's licence, he realized that he was a police officer.) As Mr. Biggs reached for his documents in his glove compartment, P.C. Doyle said, "don't worry about that" and then asked if Mr. Biggs had been drinking that night. (Mr. Biggs, again in cross-examination, conceded that he knew the man was a police officer when the latter asked the former if he had been drinking.) Mr. Biggs believed that he said that he had had a couple of beers and when asked again about whether he had been drinking, he said, "no". The officer asked if he would take a breathalyser test and Mr. Biggs replied in the negative.
29At this juncture, P.C. Doyle asked Mr. Biggs to step out of the vehicle and the latter asked of the former if this was really necessary. Mr. Biggs also asked about the situation and, in particular, if he had done something. The officer replied, "Yeah, please get out of the vehicle". Once Mr. Biggs exited from his van, P.C. Doyle told him to turn around, in response to which Mr. Biggs asked if they could talk about this reasonably. When the officer replied, "no, there is nothing to talk about", Mr. Biggs started to walk away from him, taking one or two steps. As he walked away from the officer, Mr. Biggs knew that P.C. Doyle wanted him to submit to a roadside test. Mr. Biggs then decided against this course of action, returned to the officer, put his hands behind his back and stated, "Officer, sorry. Do what you have to do." P.C. Doyle then applied force to Mr. Biggs's back, pushing him against the van in an aggressive manner. The officer handcuffed Mr. Biggs "aggressively and tight". Mr. Biggs kept asking the officer, "can't we talk about this reasonably?", but the officer indicated that there was nothing to talk about. P.C. Doyle took Mr. Biggs to the scout car, but did not tell him why he was doing so. From the time he was handcuffed at the scene to the time he was taken into 22 Division, 20 to 30 minutes had elapsed.
30Kimberley Hollier, a long-time friend of Mr. Biggs, testified that in mid-December, 2012, he called her on her cell phone at some point "late". She acknowledged that she is not really good at remembering times and, in any event, was not watching the clock that night. She did not call him back right away as she was getting ready for bed. Ms. Hollier could not estimate how long after the call came in that she called him back. Eventually, when she did return his call, he came across as upset. She understood that he was having problems with a woman he had been seeing and was moving out of the residence that they had shared. He needed a place to stay and Ms. Hollier was happy to oblige. She understood that he was going to take public transit or a cab to her home. Nothing in the background noise assisted Ms. Hollier as to the location at which Mr. Biggs had taken the call. She did not hear from him again. She expected him to show up, but he did not appear at her residence.
3. The Chronology of Events Surrounding the Taking of Breath Samples at 22 Division
31Many aspects of what transpired at 22 Division were captured on audio-/video-tape. Exhibit 2 at trial is a DVD comprised of the audio-/video-recordings of what transpired during part of the parading process and during breath testing before P.C. Sylvie Guay, a qualified breath technician. These recordings are time-stamped. P.C. Doyle testified that the booking video accurately captured what it depicts. P.C. Guay testified that the recordings of what took place in the breath room accurately depicts what occurred there. The defence does not appear to challenge the accuracy of these recordings.
A. Accounts of P.C Doyle and P.C. Guay
32P.C. Doyle took Mr. Biggs directly to 22 Division. P.C. Doyle estimated that it took about a minute to get there. The booking video, which forms part of Ex. 2 on the trial proper, indicates that they arrived at 22 Division at 1:51 a.m. At 1:52 a.m., the station's booking officer advised P.C. Doyle that there was a scout car on the other side of the salle porte. As it turned out, other officers had just brought in an arrestee. According to P.C. Doyle, it is police procedure to book in only one arrestee at a time. The officer further explained that all prisoners are to be brought into the station via the salle porte in order to maintain control over the arrestee and to ensure that they do not come into contact with the victim of, or witnesses to, a crime. For these reasons, it would not have been appropriate for him to have walked Mr. Biggs through the front door of the police station, an entrance accessed by members of the public. In the result, P.C. Doyle and Mr. Biggs had to wait for a few minutes before the latter could be booked into the station. At 2:08 a.m., the salle porte opened and P.C. Doyle was able to move Mr. Biggs into the station.
33P.C. Doyle paraded Mr. Biggs before S/Sgt. Hurley, the officer-in-charge of the station that night. During this procedure, P.C. Doyle advised that he had brought Mr. Biggs to 22 Division for the purpose of having him submit to breath testing by an approved instrument. Six minutes into the booking process, and after posing certain questions of Mr. Biggs, S/Sgt. Hurley advised P.C. Doyle, in Mr. Biggs's presence, that the breath room was occupied. P.C. Doyle inferred from this comment that other officers had brought in an arrestee for a drinking and driving offence and that he or she was undergoing breath testing. Indeed, P.C. Doyle believed that the prisoner who had delayed Mr. Biggs's entry into the station was under arrest for a drinking and driving offence. It was unclear from the officer's testimony when it was that he came to form this belief.
34According to Ex. 2, the parading process ended at 2:15 a.m.
35At the conclusion of the parade, P.C. Doyle escorted Mr. Biggs to the Criminal Investigations Bureau within 22 Division. Once settled, Mr. Biggs told P.C. Doyle that he wished to call his parents. P.C. Biggs obtained a contact number and, at 2:20 a.m., the officer telephoned Mr. Biggs's parents. To be clear, P.C. Doyle dialled the number on behalf of Mr. Biggs. The officer also asked Mr. Biggs if he wished to speak with Duty Counsel, taking the time to explain what access to Duty Counsel afforded Mr. Biggs, but Mr. Biggs declined the offer to speak with any counsel.
36It was at this juncture, while waiting to be called to the breath room, that P.C. Doyle completed some of his memo book notes and necessary paperwork related to Mr. Biggs's arrest and investigation.
37At about 2:48 a.m., P.C. Doyle learned that the breath technician was ready to receive Mr. Biggs.
38The audio-/video-recording of what occurred in the breath room indicates that Mr. Biggs entered the breath room at 2:50 a.m., in the company of one P.C. Hodges who advised P.C. Guay that P.C. Doyle was "tied up". Shortly thereafter, P.C. Doyle reassumed control over Mr. Biggs from his colleague. By 2:58 a.m., the approved instrument, operated by P.C. Guay, had analysed Mr. Biggs's first breath sample. On the strength of its analysis, Mr. Biggs had, at the time of testing, a blood-alcohol concentration of 115 mg of alcohol in 100 mL of blood. At 2:58 a.m., P.C. Doyle removed Mr. Biggs from the breath room.
39At 3:15 a.m., P.C. Doyle returned Mr. Biggs to the breath room. By 3:19 a.m., the approved instrument, operated by P.C. Guay, had analysed Mr. Biggs's second breath sample. On the strength of its analysis, Mr. Biggs had, at the time of testing, a blood-alcohol concentration of 111 mg of alcohol in 100 mL of blood.
40P.C. Guay shed light on what had occupied her time during the interim between Mr. Biggs's arrival at 22 Division and the two time periods during which she received him for testing by the approved instrument. She confirmed that, in addition to Mr. Biggs, she dealt with three test subjects that night. Mr. Biggs was her fourth and final test subject. For ease of reference, I will refer to the other test subjects as Test Subjects A, B, and C. The order in which she dealt with each of the two approved instrument tests to which each of the four test subjects had to submit, integrated with Mr. Biggs's various dealings at the station, may be summarized as follows:
| Time | Event |
|---|---|
| December 14 22:51 | P.C. Guay commences dealings with Test Subject A. |
| 23:24 | P.C. Guay concludes dealings with Test Subject A. |
| December 15 12:45 | P.C. Guay learns that Test Subject B is coming in from 22 Division for breath testing. |
| 01:32 | P.C. Guay learns that Test Subject C is coming in from 12 Division for breath testing. |
| ~01:35/01:37 | Mr. Biggs allegedly has care or control of a motor vehicle while his ability to operate it is impaired by alcohol. |
| 01:40 | Test Subject B enters breath room for first breath sample. |
| ~01:43 | P.C. Doyle arrests Mr. Biggs for having care or control of a motor vehicle while his ability to operate it is impaired by alcohol. |
| ~01:48 | P.C. Doyle and Mr. Biggs depart for 22 Division. |
| 01:51 | P.C. Doyle and Mr. Biggs arrive at 22 Division. Test Subject B exits breath room at the completion of first test. |
| ~02:08 | 22 Division's salle porte opens once the parade of the prisoner ahead of Mr. Biggs and P.C. Doyle has concluded. |
| 02:09 | P.C. Doyle parades Mr. Biggs before S/Sgt. Hurley. |
| 02:15 | Parade concludes and P.C. Doyle takes Mr. Biggs to the C.I.B. room. |
| 02:10 | Test Subject B enters breath room for second breath test. |
| 02:16 | P.C. Guay concludes dealings with Test Subject B and then completes her notes for Test Subject B. Over the course of the next 19 minutes, P.C. Guay gathers information regarding Test Subject C and Mr. Biggs, confirms that Test Subject C is ready for testing, and waits for the approved instrument to power up. Once the approved instrument is ready to accept a breath sample, she advises that she is ready for Test Subject C. |
| 02:20 | At the request of Mr. Biggs, P.C. Doyle places a call to Mr. Biggs's parents and Mr. Biggs speaks with his father. |
| 02:35 | Test Subject C enters breath room for first breath test. |
| 02:44 | Test Subject C exits the breath room at the completion of first breath test. P.C. Guay works on her notes for Test Subject C. At the same time, the approved instrument runs through a series of internal checks and balances. |
| 02:49 | Mr. Biggs enters the breath room for his first test. |
| 02:58 | Mr. Biggs exits the breath room at the completion of the first breath test. |
| 03:00 | Test Subject C enters the breath room for second breath test. |
| 03:07 | Test Subject C provides second breath sample. |
| 03:10 | P.C. Guay concludes dealings with Test Subject C. |
| 03:13 | Mr. Biggs enters the breath room for his second test. He must wait two minutes to ensure that the two samples are taken a minimum of 17 minutes apart. |
| 03:19 | Mr. Biggs provides second breath sample. |
| 03:21 | P.C. Guay concludes dealing with Mr. Biggs. |
41According to P.C. Guay, she is "mindful of delays" in submitting test subjects to breath analysis by an approved instrument. To this end, she tries to obtain as much information about a test subject prior to his or her arrival before her and then confirms its accuracy once the test subject is on camera in the breath room. This practice saves time. Generally speaking, P.C. Guay administers the breath tests on subjects according to the order in which they arrive at the division. However, when faced with a decision about the order in which she should receive multiple test subjects, who must submit to multiple tests, each a minimum of 17 minutes apart, she will depart from this practice, taking into account a variety of factors: for example, whether a given test subject is waiting to hear back from counsel of choice, the timing of the test subject's arrest (and, presumably, by extension, the alleged offence) and its relationship to the two hour window contemplated by ¶ 258(1)(c) of the Code. In the instant case, in order to avoid any unnecessary delay, she had a substitute officer bring Mr. Biggs to her while P.C. Doyle was otherwise occupied.
42P.C. Guay asserted in cross-examination that she could not have taken Mr. Biggs's breath samples any earlier. As is evident in ¶ 40, supra, she took Mr. Biggs's first breath sample between the provision of Test Subject C's first and second breath samples. When asked if she could have seized Mr. Biggs's first breath sample at 2:16 a.m., P.C. Guay indicated that this would not have been possible. She simply would not have been ready to receive Mr. Biggs. The officer first learned of Mr. Biggs's presence at 22 Division at some point when she was dealing with Test Subject C's case. By 2:16 a.m., she had just finished taking Test Subject B's second breath sample and had yet to take Test Subject C's first breath sample. She was aware that Test Subject C was "already in the queue". That individual's time of arrest was 1:12 a.m. and the officer was concerned about the aforementioned two-hour window of opportunity. She was also aware that Test Subject C had already spoken with Duty Counsel and, thus, was waiting to be tested. That Mr. Biggs had declined the opportunity to speak with Duty Counsel would have been irrelevant to her decision as to whom she should take at 2:16 a.m. unless the test subject who had arrived ahead of him was waiting to hear back from counsel of choice. As mentioned above, this was not the case here. Accordingly, there was no reason to hold off on testing Test Subject C and every reason to proceed with him or her in advance of testing Mr. Biggs.
43P.C. Doyle confirmed that there is only one approved instrument available within 22 Division. Neither counsel for the Crown, nor the defence, questioned the officer as to why he did not contact the dispatcher to ascertain if he ought to proceed to a different station for Mr. Biggs's breath tests. When asked about the availability of other approved instruments, P.C. Guay indicated that one is available at 41 Division (on Ellerslie, north of Finch Avenue East) and at Traffic Services (at 9 Hannah Street). In her view, the only location to where P.C. Doyle could have taken Mr. Biggs for breath testing by an approved instrument was 22 Division. Further, it was her opinion that an officer "can't just bring someone into another division", by which I took the officer to be referring to a catchment area. In any event, had P.C. Doyle taken Mr. Biggs to Traffic Services, there would have been additional delay incurred by Mr. Biggs having regard to travel time to the location and the volume of Test Subjects that flow through Traffic Services whose catchment includes the downtown Entertainment District. Had P.C. Doyle called the dispatcher for direction as to where to take Mr. Biggs, he would have been told that the closest location was 22 Division and nothing beyond that. P.C. Guay added, "They are not told how many test subjects are waiting in the wings." It was unclear from her evidence whether by "they" P.C. Guay was referring to the dispatcher or the officer speaking with the dispatcher.
B. Accounts of Mr. Biggs & Mr. Biggs Sr.
44Mr. Biggs estimated that he and P.C. Doyle waited for ten to 15 minutes before they were permitted inside of 22 Division. In examination-in-chief, he estimated that he was in the "office" where his personal belongings were taken from him, an apparent reference to the parading process, for 15 to 20 minutes, but varied this estimate to "maybe five minutes" in cross-examination.
45At the conclusion of the parade, the police escorted Mr. Biggs to a cell and was asked if he wanted to speak to a lawyer. He indicated that he did not want to speak with counsel, but did wish to speak with his father. Mr. Biggs remained in the cell for 20 to 30 minutes before he was put in touch with his father. Accordingly, he was in P.C. Doyle's custody for 30 to 45 minutes at the station before he was put in touch with his father. Mr. Biggs was "pretty sure" that he dialled the number for his father.
46Mr. Biggs estimated that it was about 1:50 a.m., and not 2:20 a.m., when he spoke with P.C. Doyle about wanting to telephone his father. Kevin Biggs, Mr. Biggs's father, testified that "probably around 2:00 a.m." on December 15, 2012, his son called him, advising that he was at a police station. In cross-examination, Mr. Biggs Sr. conceded that he might have spoken with his son as early as 1:30 a.m. or as late as 2:30 a.m. Over the phone, Mr. Biggs presented as anxious, but clear, lucid and easy to understand.
47Mr. Biggs also estimated that "after a lengthy delay, it felt like an hour and a half, [he] was tested". Mr. Biggs clarified that, from the point P.C. Doyle handcuffed him at the scene, to the point when he was first brought into the breath room, 90 minutes had elapsed. As another way of gauging the delay in having his breath samples tested, he estimated that "it seemed like about an hour elapsed" from the time his call with his father ended to when he provided his first breath sample.
48With respect to Mr. Biggs's estimates as to how long he was in the breath room, he indicated that on the first occasion, he was there for "maybe 20 minutes" and that on the second occasion, he was there for "about 30 minutes."
III. Findings of Credibility & Reliability
49In assessing each witness' testimony, I must consider the credibility and the reliability of the account provided. Credibility relates to the witness' veracity. Reliability relates to the account's accuracy. In assessing each witness' account, I have considered the following:
- The testimony's inherent logicality;
- Whether the testimony is internally consistent;
- Whether the testimony is inconsistent with other statements made by the witness out-of-court;
- Whether the testimony is inconsistent with the testimony of other witnesses whose evidence I accept or, at the very least, cannot reject;
- Whether the testimony is corroborated or contradicted by evidence that exists exclusive of what a witness has to say; for example, photographic evidence;
- Whether the witness has an interest in the outcome of the case or is motivated to give evidence that is more favourable to one side than the other;
- Whether the accuracy of the witness' account is undermined by (a) the circumstances in which his or her previous observations were made; (b) diminished recollection of the events in question; or (c) tainting by other sources of information; and, to a lesser degree
- The demeanour of the witness as the testimony was given.
50I will begin with my assessment of Mr. Biggs's evidence. I have the following concerns about it:
(1) As noted above, Mr. Biggs's affidavit, given on the strength of an oath on September 17, 2014, was marked as Ex. 1 on the voir dire. During cross-examination, Mr. Biggs acknowledged that the affidavit had been made under oath, that he knew that a court would be relying upon its contents, and that he was trying to be accurate in his Affidavit. Notwithstanding these representations, there are material inconsistencies between the account contained in the Affidavit and Mr. Biggs's viva voce evidence:
A. In his Affidavit, at ¶ 8, Mr. Biggs claimed that he completed work at 11:30 p.m. and drove to the plaza near his home. He made no mention of going to his residence prior to attending at the plaza. However, he testified in examination-in-chief that he finished work at 10:30 p.m., drove to his home where he discovered that the locks to the door had been changed, and then headed to the plaza at around 10:45 p.m. In cross-examination, he initially re-asserted that he got off work at 10:30 p.m. and arrived at the parking lot at 10:45 p.m. and then adjusted his position, indicating that it was 10:45 p.m. when he attended at his residence and that he arrived at the parking lot between 11:30 and 11:45 p.m. In an effort to account for the differences in his accounts, he suggested that the time reflected in his affidavit was a mistake; and
B. In his Affidavit at ¶ 8, he claimed that he consumed three 330 mL bottles of Canadian beer. However, in examination-in-chief, he claimed that he drank three 375 mL bottles of Molson Canadian beer. In cross-examination, he clarified that he actually consumed three 333 mL bottles of beer. He claimed to have been nervous when he represented that the volume of the bottles was 375 mL;
C. In his Affidavit at ¶ 20, he claimed that inside of his van he had an eight-pack of Max Ice beer that contained five bottles of beer. He believed that he had delivered the other three bottles. However, during examination-in-chief, he claimed that he had an eight-pack of Black Ice beer in the car. Four bottles remained in the box as he had delivered the other four that day.
(2) There are material inconsistencies between what Mr. Biggs claims occurred in the parking lot and what was captured by the in-car camera and microphone attached to P.C. Doyle:
A. Mr. Biggs claimed in ¶ 10 of his Affidavit that P.C. Doyle verbally identified himself as a police officer. At no point is P.C. Doyle heard to say this on the recording;
B. Mr. Biggs claimed in ¶ 11 of his affidavit, and during his examination-in-chief, that early on during their encounter, P.C. Doyle asked him for his driver's licence and that as Mr. Biggs reached over to his glove compartment to retrieve these documents, the officer told him, "not to worry about it". At no point is P.C. Doyle heard to say this on the recording. In cross-examination, Mr. Biggs conceded as much. It is noteworthy that at a subsequent point in their interaction, P.C. Doyle can be heard, for a second time, asking Mr. Biggs for his driver's licence. This second request would seem to undermine the contention of the defence that the officer was no longer interested in this documentation;
C. Mr. Biggs claimed in ¶ 13 of his affidavit, and during his examination-in-chief, that P.C. Doyle asked him to step out of the vehicle. While the officer did ask if he would submit to a roadside breath test, at no point on the recording is the officer heard to direct Mr. Biggs to get out of the van. In cross-examination, Mr. Biggs conceded as much;
D. Mr. Biggs claimed in ¶ 13 of his affidavit that once Mr. Biggs exited from his van, the officer told him to turn around. Mr. Biggs further claimed to have asked the officer whether they could "talk about this reasonably", in response to which Mr. Biggs claimed that the officer stated that there was "nothing to talk about". At no point on the recording is the officer heard to make the comments that Mr. Biggs attributes to him. During cross-examination, Mr. Biggs conceded as much;
E. Mr. Biggs claimed in ¶ 13 of his affidavit, and during his examination-in-chief, that he walked away from the officer briefly and then returned, presenting himself in a contrite fashion to the officer. This representation is undermined by Mr. Biggs's agitated presentation as captured by the recording;
F. Mr. Biggs claimed during his testimony that P.C. Doyle did not tell him anything about why he was taking control of him. In cross-examination he conceded that the recording makes it clear that the officer explained that he was placing him under arrest for refusing to provide a roadside breath sample; and
G. Mr. Biggs claimed in his testimony that he was non-compliant with P.C. Doyle for "a couple of seconds". However, he agreed in cross-examination that the recording indicates that the period of non-compliance could have been as long as 90 seconds;
(3) When and under what circumstances Mr. Biggs came to be parked near McDonald's was important to determining the credibility and reliability of P.C. Doyle's claim that he had seen the impugned van on Avonhurst and Dundas Street West shortly before 1:37 a.m. Mr. Biggs claimed in examination-in-chief that he parked in the parking lot by McDonald's prior to attending the pub because it was convenient to do so and because he wanted to avoid being towed. (Vehicles parked near the pub were apparently at risk of being towed.) However, in cross-examination Mr. Biggs readily conceded that by straddling three parking spots, he was not parked correctly and that parking in this fashion "isn't the best way to avoid being towed"; and
(4) Mr. Biggs's estimates as to the delay he incurred before submitting to breath testing at 22 Division are not borne out by the time-stamped recordings, the accuracy of which the defence as not challenged.
51As a result of the aforementioned concerns, I do not accept as credible or reliable the evidence of Mr. Biggs and it does not leave me in a state of reasonable doubt.
52The Crown's case turns on the credibility and reliability of the testimony proffered by P.C. Doyle and P.C. Guay. The defence takes no meaningful issue with the substance of P.C. Guay's testimony in that it does not challenge the reliability or credibility of what that officer had to say. It does, however, take issue with the credibility and reliability of P.C. Doyle's testimony. For the following reasons, I find P.C. Doyle's evidence to be both credible and reliable:
(1) The officer's account as to what occurred in the parking lot is, to the extent that the interaction was captured by the recording devices, corroborated by the audio-/video-recording marked as Ex. 1 at trial;
(2) Aspects of the officer's account are corroborated by the observations of other officers, including P.C. Leonard and P.C. Guay, whose credibility and reliability the defence did not challenge. I note, for example, that P.C. Leonard confirmed the presence of alcohol in Mr. Biggs's van and that Mr. Biggs had an odour of alcohol on his breath. The officer made these observations within the same time frame as when P.C. Doyle interacted with Mr. Biggs at the parking lot. While P.C. Leonard did not testify that Mr. Biggs had slurred speech (or that he swayed), I recognize that P.C. Leonard's window of opportunity to interact with Mr. Biggs and, thus, note the presence or absence of indicia of impairment by alcohol, was far smaller than that enjoyed by P.C. Doyle. While I acknowledge that Mr. Biggs Sr. did not testify that his son evinced slurred speech during their telephone conversation, I would suggest that P.C. Doyle would have been in a better person to assess the quality of Mr. Biggs's speech given his in-person, as distinguished from the telephone, contact enjoyed by Mr. Biggs Sr.;
(3) P.C. Doyle did not attempt to embellish his evidence. He acknowledged in examination-in-chief that while Mr. Biggs had mounted a curb during a u-turn on Avonhurst and had weaved within his lane on Dundas, he had not been speeding. He readily conceded that he was not, as a result of the lighting conditions at the time, able to ascertain whether the beer bottle that he had seen in Mr. Biggs's van was, indeed, empty, full, partially-full, capped or uncapped. He volunteered in cross-examination that by a "open" bottle of beer, he was referring to a loose, unboxed bottle, as distinguished from an uncapped bottle. The officer further acknowledged that by reason of the fact that Mr. Biggs had food in his mouth, he was unable to gauge whether the latter had the smell of alcohol on his breath while he was seated in his van; and
(4) It makes little sense that P.C. Doyle would be attracted to Mr. Biggs's van, a vehicle parked near an open restaurant, and would attend upon it, for no apparent reason. Something had to have piqued P.C. Doyle's interest earlier, prompting the investigation that occurred at 1:37 a.m. The irresistible inference is that the "something" included Mr. Biggs's unexplained presence on Avonhurst within the preceding 15 minutes, together with his subsequent driving and parking performances. Having taken the time to address what he regarded as, and what I agree was, a more pressing matter at Dundas and Shorncliffe, he returned to follow up on what he perceived as suspicious behaviour by the van's driver.
53Ms. Johnson suggested during her final submissions that perhaps P.C. Doyle became aware of the presence of a beer bottle in Mr. Biggs's van after he made the approved screening device demand. In my respectful view, there is no evidence to support such a contention.
54I have carefully reviewed P.C. Doyle's testimony on this issue. At no time did the defence put this proposition to the officer for his comment. I further note that P.C. Leonard, a witness whom the defence called, did not testify that P.C. Doyle seemed surprised by the presence of beer bottles in the van when P.C. Leonard came upon them. The following excerpts from P.C. Doyle's testimony are apt. During examination-in-chief, the following exchange took place:
Q: Just before you get to that, what observations did you make of the driver himself or of inside the vehicle before you asked him that question.
A: Yeah, so in the back, in the, in the back of the vehicle on approach, just behind, kind of in the general area of the, I guess it would be the cabin seats of the van, there appeared to be a, there appeared to be an empty alcohol bottle, a beer bottle. He was leaned back in his driver's seat. He had no seatbelt on. And I noticed that his eyes seemed bloodshot and that his face was, appeared to be flushed red. But at the time, he was eating, so he appeared to be, at that time when I was conversing with him he appeared to just have his mouth full and was talking to me. So, he appeared to me to be talking ok. [emphasis added]
During cross-examination, the following exchanges took place:
Q: Is it possible that the beer in the van all had caps on the bottles?
A: Yes, that's possible.
Q: So, there weren't necessarily open bottles in Mr. Biggs's vehicle? Is that possible?
A: When I first observed them with the flashlight, I saw that there was a bottle of beer. I didn't see whether it was unsealed.
Q: Ok, so it possibly did have its cap on?
A: Yeah. I just saw the bottle of beer.
Judge: You just saw?
A: The beer bottle.
Q: Did you just see one or a few?
A: I saw one on the initial approach with my flashlight.
Q: Because it's fair say you never mentioned anything about open beer or beer or liquor in the vehicle to Mr. Biggs that we can hear on the video?
A: No.
Q: Never asked him about anything to do with that beer?
A: No, I didn't.
Q: And you'll agree now that maybe that liquor, or that beer was not open. Um, Where was that beer bottle or bottles – is it "bottle" or "bottles"?
A: Um
Q: In your notes, page 32.
A: It was behind the rear of the back passenger seat, back front passenger seat, so near the, near the feet of, I guess what would be the bench seats, the middle seats of the van.
Q: Was it a single bottle or a few bottles?
A: It was a large beer bottle of Black Ice. So, it was a single, it would be like a 40 ounce beer bottle.
Q: One of them?
A: Yes.
Q: Loose, on its own?
A: Yes, loose on its own, yeah.
Q: And you indicate, sir, that "based on the fact that there's open alcohol in the vehicle and that I observed him before this encounter, not 15 minutes before, this as noted, and the driving was suspect, I want the male to blow into a roadside device"?
A: Yup, that's my thinking at the time.
Q: Alright, so because of the earlier driving, because there's open alcohol, um, you've got the bloodshot eyes and the flushed face, so you want him to blow into the roadside. Is that fair?
A: Yeah that's fair. And I think I should clarify when it says "open alcohol", what I mean by that is not unsealed or open, just not in a case, just loose on its own, lying on the ground. Um, I know those types of bottles. They come, they come in cases of six, so that was my thinking when I wrote, "open". Because obviously I'm not gonna be able to see into the vehicle, um, with my little flashlight into the, into the back. Um, you could just see that it was, I could just see the label of Black Ice. So, just loose, one loose bottle, not in a case.
55It is clear from the tenor of Ms. Johnson's cross-examination that she sought to create an evidentiary foundation upon which she could later argue that P.C. Doyle did not believe that the bottle of beer was uncapped (and thus its content consumed) at the time he made the approved screening device demand. Indeed, her questions of P.C. Leonard regarding the description of the bottles he observed were directed to the very same point.
56In the result, I do not accept the testimony of Mr. Biggs as to his version of events of December 15, 2012, except to the extent that it is corroborated by an external source of evidence that I do accept. Further, Mr. Biggs's testimony does not leave me in a state of reasonable doubt as to what occurred. I further find that the testimony of Mr. Biggs Sr. and that of Ms. Hollier does little to advance the position of the defence. I do accept the accounts of P.C. Doyle, P.C. Leonard and P.C. Guay as an accurate rendition of what occurred during the early morning hours of December 15, 2012.
IV. Legal Issues
57Two preliminary matters must be addressed. The defence has argued that P.C. Doyle's detention of Mr. Biggs in the parking lot was arbitrary from the outset. The success of this argument turns largely on my factual findings as to whether P.C. Doyle observed Mr. Biggs operating his van on Avonhurst and Dundas Street West directly before his brief interaction with the Honda Civic at Dundas and Shorncliffe. Ms. Johnson on behalf of Mr. Biggs concedes that, should I accept P.C. Doyle's version of events, she can no longer credibly advance the position that, at the outset of their interaction, P.C. Doyle arbitrarily detained Mr. Biggs. I conclude that Mr. Biggs was not detained "arbitrarily", as contemplated by § 9 of the Charter, when P.C. Doyle first interacted with him as he sat in the driver's seat of his van.
58Further, in light of the findings of fact and law that Mr. Biggs was not arbitrarily detained at the very outset of the officer's interaction with him, there is no feasible argument that P.C. Doyle was disentitled, in law, to use a flashlight to do a cursory search of the van's interior at that point in time. For the sake of officer safety, P.C. Doyle was entitled, at the outset of his detention of Mr. Biggs, to make observations of what was in plain view, as aided by his flashlight, just as he would be entitled to make observations of what was in plain view, unaided by a flashlight, during the daylight hours. See: R. v. Ceballos, 2014 ONSC 2281, at ¶ 72 – 78. In the result, no issue can be taken with the admissibility of P.C. Doyle's observation of an open or loose bottle of beer in the foot well area behind the van's front seats.
1. Was the Approved Screening Device Demand Lawful?
59The crux of the defence argument is that P.C. Doyle lacked any reasonable suspicion that Mr. Biggs had alcohol in his body and, in the result, could not make a lawful demand that he submit to breath testing by a roadside screening device. In the absence of a lawful demand, the officer could not have arrested Mr. Biggs for failing to comply with it and, thus, would not have had the opportunity to obtain evidence of indicia of impairment by alcohol that arose following, and as a result of, that arrest.
60The analysis must begin with a review of § 254(2) of the Criminal Code which reads:
- (2) If a peace officer has reasonable grounds to suspect that a person has alcohol…in their body and that the person has, within the preceding three hours…had the care or control of a motor vehicle…whether it was in motion or not, the peace officer may, by demand, require the person…
(b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.
61The relevant appellate authorities stand for the following propositions, or make the following points, as to what comprises "reasonable suspicion" as to the presence of alcohol in a detainee's body:
(1) Reasonable "suspicion" deals with "possibilities" as opposed to "probabilities". See: R. v. Chehil, 2013 SCC 49, at ¶ 28. Reasonable suspicion means "reasonable grounds to suspect" as distinguished from "reasonable grounds to believe". To the extent one speaks of a "reasonable belief" in the context of reasonable suspicion, it is a reasonable belief that an individual might be connected to a particular offence, as oppose to a reasonable belief than an individual is connected to the offence. See: R. v. MacKenzie, 2013 SCC 50, at ¶ 74;
(2) "Reasonable suspicion" requires that the officer have an honestly held belief as to the presence of alcohol in the suspect's body and that the belief be reasonably held;
(3) Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. A police officer's grounds for reasonable suspicion cannot be assessed in isolation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience. Assessing whether a particular constellation of facts gives rise to a reasonable suspicion should not – indeed must not – devolve into a scientific or metaphysical exercise. Common sense, flexibility, and practical everyday experience are the bywords, and they are to be applied through the eyes of a reasonable person armed with the knowledge, training and experience of the investigating officer. See: R. v. Chehil, supra, at ¶ 29; and R. v. MacKenzie, supra, at ¶ 73;
(4) "Reasonable suspicion" need not be the only inference that can be drawn from a particular constellation of factors. Factors that give rise to a reasonable suspicion may also support completely innocent explanations. This is acceptable, as the reasonable suspicion standard addresses the possibility of uncovering criminality, and not a probability of doing so. See: R. v. Chehil, supra, at ¶ 32;
(5) Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors. The totality of the circumstances, including favourable and unfavourable factors, must be weighed in the course of arriving at any conclusion regarding reasonable suspicion. However, the obligation of the police to take all factors into account does not impose a duty to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations. See: R. v. Chehil, supra, at ¶ 33 – 34; and R. v. MacKenzie, supra, at ¶ 71 - 72;
(6) The significance of strict construction and sound evidentiary proof in the context of enforcing a conscriptive provision such as § 254(2) should not be understated. In this respect, the "reasonable suspicion" prerequisite in this provision should be interpreted and applied with care. See: R. v. Martin, [2005] O.J. No. 670 (Sup. Ct.), at ¶ 10; and
(7) In the context of a demand made pursuant to § 254(2), an officer can, in law, reasonably suspect that a detainee has alcohol in his or her system, even in the combined absence of the odour of breath alcohol and an admission of alcohol consumption. See: R. v. Zoravkovic, [1998] O.J. No. 2668 (C.A.), at ¶ 2. Indeed, trial courts have reached this very conclusion relying upon a combination of indicators, which jointly or severally, are consistent with the consumption of alcohol, including manner of driving, manner of speech, co-ordination/gross and fine motor skills, responsiveness, evasiveness, physical presentation, and demeanour. See, for example, R. v. Defend, [2010] O.J. No. 2406 (Ct. Just.); R. v. Outchere, 2013 ONCJ 14; R. v. Gill, [2014] A.J. No. 327 (Prov. Ct.); and R. v. Larocque, [2014] O.J. No. 5360 (Ct. Just.).
62There is no dispute that P.C. Doyle honestly believed that Mr. Biggs had alcohol in his body. The live issue is whether that belief was reasonably held. Simply put, and to borrow the language of Moldaver J. writing for the majority in R. v. MacKenzie, supra, at ¶ 72, are the facts objectively indicative of a possibility of alcohol in Mr. Biggs's body in light of the totality of the circumstances? Having regard to the following constellation of factors, I have concluded that P.C. Doyle's belief was reasonably held, despite an absence of evidence of an odour of breath alcohol and notwithstanding Mr. Biggs's denial that he had consumed alcohol (a representation that the officer was not obliged to accept as true):
(1) As soon as P.C. Doyle pulled in behind Mr. Biggs on Avonhurst, the latter took off in haste. One possible explanation for this manoeuvre is that Mr. Biggs, mindful of the presence of a police officer behind him, wanted to avoid detection. Simply put, his flight was consistent with an awareness that he had something to hide from the police;
(2) Mr. Biggs's manner of driving and eventual parking was consistent with someone who has excessive alcohol in his system:
a. He executed a u-turn on Avonhurst when, in the opinion of P.C. Doyle, a three-point turn would have been a more logical choice;
b. During the execution of this u-turn, Mr. Biggs's right front passenger tire mounted the curb;
c. Over the course of less than a kilometre, Mr. Biggs weaved within his lane. P.C. Doyle found this driving to be "awkward" and "kind of erratic";
d. Mr. Biggs did not decelerate before turning left into the McDonald's parking lot. Furthermore, given the officer's proximity beside Mr. Biggs's van, this abrupt turn is consistent with an evasive manoeuvre; and
e. Mr. Biggs parked his van across three parking spots; and
(3) Mr. Biggs had ready access to an open/loose bottle of beer within the van. With the aid of a flashlight, P.C. Doyle thought that the bottle in question appeared to be empty but could not, given the level of illumination, confirm this. In accordance with the principles established in R. v. Chehil, supra, and R. v. MacKenzie, supra, that he did not investigate the matter further does not detract from its value in contributing to the reasonableness of his suspicion; and
(4) Mr. Biggs presented with a flushed face and bloodshot eyes, symptomology consistent with the consumption of alcohol.
63In the face of an informal [3] approved screening device demand, lawfully made, Mr. Biggs's non-compliance gave P.C. Doyle reasonable and probable grounds to arrest him for refusing to comply with an approved screening device demand. His detention thereafter was lawful and any observations that flowed temporally from that point of arrest were not obtained in violation of Mr. Biggs's right against unreasonable search or seizure, or arbitrary detention, as guaranteed by § 8 and 9, respectively, of the Charter. Mr. Biggs's application, pursuant to §24(2) of the Charter, for the exclusion of P.C. Doyle's observations following the former's arrest for refusing to comply with an approved screening device demand is dismissed.
64Ms. Johnson, on behalf of the defence, very fairly concedes that, in the event that I dismiss Mr. Biggs's application for Charter relief, the defence is not in a position to challenge the legality of the approved instrument demand. I agree that P.C. Doyle had ample reasonable and probable grounds to make the demand and, thus, Mr. Biggs's breath samples were lawfully seized later at 22 Division.
2. Were the Samples Taken "As Soon as Practicable"?
65In order for the Crown to benefit from the presumption of identity as set out in ¶ 258(1)(c) of the Criminal Code, it must show that each breath sample was taken "as soon as practicable" after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time. This requirement's purposes or rationales were identified by Duncan J. in R. v. St. Jean, 2012 ONCJ 378, at ¶ 6 ff as the minimization of (1) the "myth" of the presumption of identity; and (2) the period of detention for breath testing of suspected offenders.
66The Ontario Court of Appeal has defined the phrase, "as soon as practicable" to mean, "nothing more than that the tests were taken within a reasonably prompt time under the circumstances". See: R. v. Vanderbruggen, 2006 CanLII 9039 (ON CA), at ¶ 12. There is no requirement that the tests be taken "as soon as possible". As noted in R. v. Vanderbruggen, supra, "the touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably" [emphasis added]. In deciding whether the police acted reasonably, the trial judge should look at "the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test". While the Crown is obligated to demonstrate that, in all the circumstances, the breath samples were taken within a reasonably prompt time, "there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody." See: R. v. Vanderbruggen, supra, at ¶ 13. As noted in R. v. Singh, 2014 ONCA 293, at ¶ 15:
…These provisions of the Criminal Code were enacted to expedite the trial process by facilitating the introduction of reliable evidence to prove an accused's blood-alcohol level. Interpreting these provisions to require an exact accounting of every moment in the chronology from the time of the offence to the second test runs counter to their purpose…
67In the instant case, the offence is alleged to have occurred at 1:37 a.m., according to P.C. Doyle's iPhone, or at 1:35 a.m., according to the time stamp visible in Ex. 1 at trial. It is common ground between the parties that the first breath sample was taken by 2:58 a.m. and that the second sample was taken by 3:19 a.m. As a starting point, I note that the first test was completed with 37 minutes to spare in the two-hour window. The second test was also completed within that two-hour window (and, indeed, with 16 minutes to spare).
68A consideration of the entire chain of events from the point in time of the alleged offence, to the completion of the breath tests reveals the following. Time was taken at the scene to gain control Mr. Biggs, effect his eventual arrest for the offence of impaired care or control, administer his rights and an approved instrument demand, and secure his personal property. P.C. Doyle transported Mr. Biggs to what clearly was the closest location of a qualified breath technician. The needs of another prisoner delayed Mr. Biggs's parade. Within five minutes of the conclusion of his parade before S/Sgt. Hurley, Mr. Biggs was connected to his father by telephone. Within 25 to 30 minutes of the start of that call, he was placed before P.C. Guay for the purpose of submitting his first breath sample for analysis by an approved instrument. P.C. Guay provided a detailed account of what occupied her time during Mr. Biggs's attendance at 22 Division. She efficiently juggled the needs of three test subjects, all the while attending to her responsibilities of note-taking and preparing the approved instrument for successive test subjects. It is purely speculative, in my view, to suggest that Mr. Biggs could have been processed more quickly had he been taken to another approved instrument location in the city.
69To adopt the language of Rosenberg J.A. at ¶ 14 in R. v. Vanderbruggen, supra, the record only shows that the officers were attentive to their duties and to the need to administer the tests to Mr. Biggs as soon as practicable. There was no evidence that the officers gave unreasonable priority to any other task.
70I am satisfied that each of Mr. Biggs's breath samples were taken "as soon as practicable", as contemplated by ¶ 258(1)(c) of the Code. The Crown is entitled to rely upon the presumption of identity conferred by that paragraph.
71It is common ground between the parties that Mr. Biggs was in "care or control" of his motor vehicle when P.C. Doyle came upon him in the McDonald's parking lot shortly after 1:30 a.m. on December 15, 2012. In light of the foregoing, I am satisfied that the Crown has proven, beyond a reasonable doubt, that at that time, he had a blood-alcohol concentration of between 111 and 115 mg of alcohol in 100 mL of blood.
3. Was Mr. Biggs's Ability to Have Care or Control of his Motor Vehicle Impaired by Alcohol?
72In R. v. Stellato, 1993 CanLII 3375 (ON CA), affirmed 1994 CanLII 94 (SCC), the Ontario Court of Appeal held that "if the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence [of impaired care or control] has been made out". See: R. v. Stellato, supra, at ¶ 14. In R. v. Bush, 2010 ONCA 554, the Ontario Court of Appeal, citing with approval the decision of R. v. Censoni, [2001] O.J. No. 5189 (Sup. Ct.), further held at ¶ 47, that "slight impairment to drive relates to a reduced ability in some measure to perform complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road".
73Having regard to the following constellation of factors, I have concluded that, at the time that P.C. Doyle came upon Mr. Biggs parked in the McDonald's parking lot, Mr. Biggs's ability to operate a motor vehicle was impaired by alcohol:
(1) As confirmed by the results of the approved instrument's analysis, together with the operation of the presumption of identity, Mr. Biggs had alcohol in his system;
(2) Mr. Biggs presented with a flushed face, bloodshot eyes, slurred speech, an odour of alcohol on his breath and, during his search incidental to arrest, he was unsteady on his feet and needed to use the police cruiser for support;
(3) Mr. Biggs was belligerent and unco-operative in his interaction with P.C. Doyle; and
(4) Within the preceding 15 minutes or so of Mr. Biggs's detention, his front passenger tire had "hopped" a curb during the execution of a u-turn, over a distance of less than a kilometre his van was weaving within its lane, he made a left turn into a parking lot without first decelerating, and he parked his van across three parking spots.
74In my respectful view, the Crown has proven beyond a reasonable doubt that, at the time he was in care or control of a motor vehicle, Mr. Biggs's ability to operate it was impaired by the consumption of alcohol.
V. Conclusion
75For the foregoing reasons, I am satisfied that the Crown has proven the essential elements of both of the offences set out in the information beyond a reasonable doubt. Accordingly, I find Mr. Biggs guilty of both counts 1 and 2.
Released: March 9, 2015
Signed: "Justice A. Tuck-Jackson"
Footnotes
1P.C. Doug Leonard, whose arrival on scene will be described infra, completed an inventory search of Mr. Biggs's vehicle once P.C. Doyle directed him to impound the van. That search confirmed the presence of an unspecified number of full beer bottles within the van. P.C. Leonard could not confirm whether they were contained in a box or where within the vehicle that he found them.
2Upon his arrival on scene, P.C. Leonard detected the smell of an alcoholic beverage coming from Mr. Biggs's person. At 2:50 a.m., when P.C. Sylvie Guay, the qualified breath technician first had contact with Mr. Biggs, she observed that this eyes were bloodshot and that his face was "flushed all over". Further, he had a "very strong" odour of alcohol on his breath.
3The defence has not contended that the informal wording of P.C. Doyle's approved screening device demand detracted from its lawfulness. Further, I note that in cross-examination, Mr. Biggs conceded that he understood that P.C. Doyle wanted him to submit to breath testing. On his own account, he returned to the officer and indicated something to the effect, "do what you have to do". All of this supports the inference that Mr. Biggs knew he had to submit to breath testing in the parking lot.