Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Connor Gregory
Before: Justice Peter T. Bishop
Heard: September 30, 2016
Reasons for Judgment Released: November 24, 2016
Counsel:
- Sarah Burden, counsel for the Crown
- Brian Starkman, counsel for the defendant Connor Gregory
BISHOP J.:
Charges
1Connor Gregory stands charged that on or about the 24th day of August, 2015 did drive motor vehicle with over 80 milligrams of alcohol in 100 millilitres of blood contrary to Section 253(1)(b) of the Criminal Code and further
2And further: On or about the 24th day of August, 2015 did drive a motor vehicle while his ability to drive was impaired contrary to Section 253(1)(a).
3At the commencement of the trial, the Crown asked that the impaired driving charge be withdrawn and proceeded on the drive over .08 charge only.
Evidence of Constable Johnathan Schmidt
4Constable Schmidt is an officer with the Ontario Provincial Police and was on night shift on the day in question. He is also a qualified breathalyzer technician.
5At 1:07 a.m., he and his partner set up a R.I.D.E. program on Highway 105 and Spruce Street in the Township of Ear Falls.
6He had a clear view of both directions with the cruiser's emergency lights engaged.
7He knew that there was an event at the Royal Canadian Legion and he observed a motor vehicle approach Highway 105 from Highway 657.
8The driver pulled up to a stop sign with his right turn signal engaged as he approached the R.I.D.E. check, then hesitated, slowed down and turned the other way.
9Constable Schmidt followed the vehicle which turned on Elm Street then on to Sumack Street and stopped the vehicle a few hundred yards on Sumack Street. It took the vehicle a long time to pull over and it was a large pickup with a Manitoba license plate.
10There were three males in the vehicle and he smelled alcohol emanating from the vehicle and the driver's eyes were glossy and bloodshot.
11He approached the driver who spoke in a very normal voice with no slurring and asked him to step outside the vehicle.
12The driver Connor Gregory was smoking a cigarette and he was asked to extinguish it.
13Mr. Gregory admitted to having 2 beer at the Legion and the officer smelled a faint odour of alcohol on his breath.
14At 1:12 a.m. Constable Schmidt read the roadside screening demand and the accused understood. He obtained a roadside screening device from the police cruiser and determined that it was in proper working order and had been calibrated on October 17, 2015.
15He demonstrated the roadside screening device to the accused who understood.
16Constable Caul, Constable Schmidt's partner, was told by the accused that he consumed the last drink over 30 minutes ago. This was overheard by Constable Schmidt who was right there.
17At 1:14 a.m. the accused's breath sample was obtained which resulted in a fail.
18Constable Schmidt stated that he had reasonable and probable grounds to believe that the accused was driving with more than 80 milligrams of alcohol per 100 millilitres in his blood and was read his right to counsel and was arrested. He was also read the caution. Mr. Gregory did not wish to speak to a lawyer.
19At 1:16 a.m., the breath sample demand was read and the accused was handcuffed and taken to the Ontario Provincial Police Detachment in Ear Falls. Constable Schmidt travelled directly to the detachment leaving the scene at 1:26 a.m. and arrived at the detachment 1:29 a.m.
20Constable Schmidt prepared the Intoxilyzer 8000C and had it set up in the Sergeant's office which had video recording.
21All diagnostics were tested and the Intoxilyzer was in proper working order.
22At 1:44 a.m., Constable Schmidt was ready for the breath sample and Constable Caul brought the accused to Constable Schmidt and the accused was read his rights to counsel again. At this time the accused wished to speak to duty counsel and was allowed to speak to duty counsel in private.
23The accused was brought back to Constable Schmidt at 1:59 a.m. and the breath sample was taken.
24The first breath sample was taken at 2:04 a.m. which registered 196 milligrams of alcohol per 100 millilitres of blood and at 2:26 a.m. the second sample was taken which registered 195 milligrams of alcohol per 100 millilitres of blood.
25The accused was charged with impaired driving as well as drive in excess of 80 milligrams of alcohol per 100 millilitres of blood and placed back in the cells.
26The notice of intention to produce the certificate of analysis was filed as Exhibit 1 and Constable Schmidt's certificate of qualified technician was filed as Exhibit 2.
Evidence in Cross Examination
27Constable Schmidt stated that he had an independent recollection of Constable Caul asking the accused when his last drink was but did not record it in his notes. On the day of trial, prior to commencing the taking of evidence, Constable Schmidt confirmed with Constable Caul that he (Constable Caul) recorded the timing of the accused's last drink in his notes.
Evidence of Constable Jordan Caul
28Constable Caul is a member of the Ontario Provincial Police and at the time of the occurrence was stationed in Red Lake. He was working with Constable Schmidt.
29Constable Caul was setting up the R.I.D.E. check with Constable Schmidt and he observed a motor vehicle approach from the east. It stopped at the stop sign with his right turn signal on, waited 5 seconds then turned left and proceeded in the opposite direction. The turn signal on this vehicle continued to be engaged as it travelled south bound. This officer also observed no tail lights on the truck.
30At 1:08 a.m. the vehicle stopped on Elm Street and it was recorded that the vehicle was a Ford F250 pickup with Manitoba markers.
31Constable Schmidt approached the driver's side and Constable Caul smelled a strong odour of alcohol coming from the passenger side of the vehicle.
32The driver stated that he didn't have anything to drink but had just come from the Legion.
33Constable Caul noticed that the driver was smoking a cigarette and he asked the accused to extinguish it. Constable Caul could smell alcohol coming from the accused. At that point the accused admitted that he had 2 beer at the Legion and his last drink was more than 30 minutes ago.
34Constable Schmidt was in close proximity when the accused made the statement to Constable Caul about his last drink. Constable Caul observed the red light fail on the roadside screening device at 1:14 a.m.
35At 1:15 a.m. the accused was placed under arrest and was read his rights to counsel at that time and stated that he did not want to speak to a lawyer.
36The vehicle was impounded and the officers arrived with the accused at the Ear Falls detachment at 1:27 a.m.
37The accused had no alcohol between the time of the stop and the time of the breath samples.
Evidence in Cross Examination
38Constable Caul stated that the approved screening device was in the vehicle and that Constable Schmidt was within ear-shot when the accused stated his last drink was over 30 minutes ago. Constable Caul denied having a conversation with Constable Schmidt on the day of trial about recording that in his notes.
Defence Position
39The accused elected not to call any evidence but rely upon the high onus on the Crown to prove each element of the offence.
Position of the Crown
40The Crown's position is that there was no Charter breach and that Officer Schmidt had reasonable and probable grounds to arrest and engage the roadside screening device. Constable Schmidt smelled a faint odour of alcohol on the accused, he was driving and there was no breach of Section 8 or 9 of the Charter.
41The Crown relies upon R v Grant and submits that should the court find that there was a Charter breach that it is saved by Section 24(2) of the Charter dealing with the three pronged test of good faith, minimal intrusion and seriousness of drinking and driving offenses.
42On the whole, the evidence should be admitted as Constable Schmidt performed his duties well, made sure that the cigarette was extinguished to obviate any difficulties with mouth alcohol effect. He had independent recollection of Constable Caul's asking when the accused's last drink was.
43The fact that Constable Schmidt asked Constable Caul on the day of trial whether he recorded that conversation is of no importance as there is no difference between the officer's memory as Constable Schmidt had independent recollection of the evidence and it was not seriously challenged in cross examination that regard.
Position of Defence
44The defence states that the last drink issue is also a Charter issue because Constable Schmidt did not address his mind to that last drink timing and if he did he would not have reasonable and probable grounds to arrest the accused, nor provide the roadside screening device and it goes to the reliability of the roadside screening device.
45Constable Schmidt further stated that if the time of the accused's last drink was shorter than 30 minutes he would have taken a different approach. Constable Schmidt maintained that he had an independent recollection and it was an oversight that he didn't record that conversation in his notes. The essence of this argument is that Constable Schmidt did not ensure when the last drink occurred and there is therefore a conflict in his evidence and Constable Caul which goes to the reliability of the roadside screening device.
46The defence reviewed the tests in R v Grant 2009 SCC 32 and submits that if the Grant tests are applied then there was a Charter breach of Section 8.
47The defence also submits that the accused, at the roadside, did not request a lawyer but because Constable Schmidt asked him again before taking the breath samples that this was an unreasonable delay from 12:46 a.m. to 12:59 a.m. and therefore the breath samples should be excluded.
Decision
48Having heard all of the evidence, I am finding that the Crown has proven its case beyond a reasonable doubt for the following reasons:
(1) Constable Schmidt acted professionally in each and every aspect of this case. He ensured that both the roadside screening device and the Intoxilyzer 8000C were working properly.
(2) He followed all of the test procedures and requirements and waited the appropriate time before taking the samples.
(3) I am finding as a fact that Constable Schmidt overheard Constable Caul asking when the last drink was consumed and accepted that he did not put it in his notes as it was an oversight. This does not change the evidence of Constable Caul and the fact that both Constable Caul and Constable Schmidt were working in close proximity, and in fact that the accused stated that his last drink was over 30 minutes ago. There is no evidence to the contrary.
(4) As stated in Bernshaw, there must be some objective basis to have the officer delay taking the samples. For example, if Constable Schmidt had seen an open bottle of liquor in the car or if there was a statement by the accused or some other objective basis to have the officer wait longer, then that would be a more forceful argument. There is no such evidence in this case.
(5) Specifically, I am finding that Constable Schmidt objectively had reasonable and probable grounds to make the roadside screening demand as he had suspicion that there was alcohol in Mr. Gregory's body. This was recently stated in R v Schouten 2016 ONCA 872.
(6) I reject the submission that there was unreasonable delay because Constable Schmidt again asked the accused whether he wanted to speak to counsel at the detachment before taking the Intoxilyzer samples. This does not amount to an unreasonable delay. It is a reasonably explained delay and the delay is of no significance. It does not obviate the samples being taken as soon as practical, but it gives credence and credit to Constable Schmidt who wanted to make sure that the accused understood his rights to counsel and ensured that he exercised those rights.
(7) I also reject the inference that because Constable Schmidt did not record the last drink of 30 minutes in his notes and the fact that Constable Caul denied having the conversation before giving evidence in Court is of no moment as the empirical evidence at the scene jives with each other and that conflict in whether or not the conversation took place does not create a reasonable doubt with respect to the elements of the offence.
49In all of these circumstances, the Crown has proven all the elements of the offence of drive over .08 and a conviction will enter.
Released: November 24, 2016
Signed: "Justice Peter T. Bishop"