Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Chuong Hong Vo
Before: Justice John McInnes
Heard on: January 27, 2017
Reasons for Judgment released on: April 3, 2017
Counsel
B. McCallion — counsel for the Crown
B. Daley — counsel for Chuong Hong Vo
Judgment
I. The Charges and Facts
1Chuong Hong Vo is charged with having care or control of a motor vehicle while he was impaired and while his blood alcohol was "over 80". At 3:30 a.m. on July 26, 2015, York Regional Police Constable Everton De Oliveira found Mr. Vo asleep behind the wheel of a motor vehicle parked in a shopping mall lot. The driver's door was wide open and a sizeable deposit of purplish-coloured vomit lay on the asphalt next to it. After waking up and briefly interacting with the defendant the officer arrested him for "care and control" and, a few minutes later, made a s.254(3) breath demand which led to readings just above the legal limit.
2Defence counsel submits there is insufficient evidence of impairment to found a conviction on Count 1. He argues the "over 80" charge should also be dismissed because the officer lacked reasonable grounds for the s.254(3) breath demand and the readings should be excluded under ss. 8 and 24(2) of the Charter; alternatively, mouth alcohol from regurgitation may have tainted the breath results which should raise a reasonable doubt.
II. The Evidence
3At 3:27 a.m. on July 26, 2015, PC De Oliveira was driving westbound on Highway 7 near Martin Grove Rd. in Vaughan when his attention was drawn to a single vehicle parked near the entrance of the parking lot at Leisure Lane Plaza on the north side of Highway 7. He could see there was someone in the driver's seat and that the driver's door had been left wide open. He pulled into the plaza and parked nose to nose with the vehicle leaving his headlights on and then exited his cruiser. He could see the man in the driver's seat – the defendant – had not been awoken by his arrival. As he neared the driver's side door he noticed a large volume of purple coloured vomit on the ground outside it.
4PC De Oliveira woke up the defendant by calling out to him and identifying himself as a police officer. The defendant initially looked at him with a blank stare which the officer felt was "understandable given that he had just woken up". Concerned whether the defendant was having a medical difficulty, the officer asked him some questions including whether he knew what time it was. This prompted the defendant to push the "on button" of the car to see the clock on the dash. This led PC De Oliveira to "suspect" he was in "care and control of the vehicle".
5At this same moment, the officer testified, he looked closely at the vomit and decided the purple hue came from red wine. Concerned the defendant might put the vehicle into motion, he asked him to exit the vehicle. The defendant complied and "stepped right into the vomit that was on the ground as he lurched forward to come out of the vehicle" and "almost fell over" and so "had to use his hands to brace himself on the door of the vehicle" and then held his hands out to his sides to balance himself as he walked towards the officer.
6PC De Oliveira next asked the defendant if he required medical attention or if he was feeling sick to which he replied "no". He then asked the defendant to produce identification, partly to assess his fine motor skills. The defendant was compliant but, according to the officer, he had difficulty finding his documents and he fumbled with his wallet. The officer was asking him questions and the defendant would stop looking through his wallet each time he did causing the officer to note he was unable to multi-task.
7PC De Oliveira asked the defendant if he had anything to drink and the defendant replied that he had one drink at a wedding earlier in the evening. Although the strongest odour the officer detected came from the vomit, he could also smell alcohol. He testified that "as [the defendant] was talking I could notice his speech was slurred" and that he continued to be unsteady on his feet.
8When the defendant told PC De Oliveira he had been at a wedding that evening, the officer surmised the wedding must have been held at the Da Vinci Banquet Hall directly across Highway 7. He found it odd that the defendant would park across the highway given the abundance of parking spaces in front of and beside the banquet hall. He attributed what he deemed to be an irrational parking choice to alcohol impairment which he included in his grounds for the arrest and breath demand.
9Based on the foregoing, PC De Oliveira concluded he had:
…reasonable grounds to believe that the accused before the court had been drinking that night and I did find him in care and control of a motor vehicle. So I placed him under arrest for care and control of a motor vehicle at 3:29 a.m.
This was the only iteration of the officer's subjective grounds for the arrest and the breath demand. At the time of these events, PC De Oliveira had been a police officer for approximately one year and he had been involved in three or four prior impaired driving investigations.
10PC De Oliveira drove the defendant to YRP 4 District station where he was booked in and given an opportunity to consult with duty counsel. The officer handed Mr. Vo off to the Qualified Breath Technician, PC Benjamin Lai, at 4:41 a.m. The defendant provided suitable samples at 4:51 and 5:13 yielding blood alcohol concentration measurements of 97 mg/100 ml and 93 mg/100 ml, respectively.
11According to PC Lai, Mr. Vo had flushed cheeks and watery bloodshot eyes but he displayed good balance both walking and standing and "perfect" motor skills and eye hand coordination. The officer detected no odour of alcohol or attempts to mask same, nor did the defendant slur his speech. PC Lai agreed with defence counsel that absent the breath readings he would not have concluded the defendant's ability to operate a motor vehicle was impaired by alcohol.
12According to PC De Oliveira, when he handed the defendant over to PC Lai at 4:41 a.m.:
…his speech was starting to clear up. I still noticed that he had an accent but his speech wasn't as slurred as it was at the scene…his speech was slurred back at the scene but now it was starting to become more sharp. He was starting to walk more normally, his arms weren't swinging, he was a little more sure on his feet. His eyes were still bloodshot and there was still a bit of a delay to his responses. But it did seem as if the signs of impairment were starting to fade.
13An in-car camera system in the officer's cruiser recorded part of his interaction with the defendant after he had exited his vehicle. I will have more to say about the video below.
III. The Issues
14Defence counsel submits the evidence of impairment is insufficient to prove Count 1, care or control while impaired. PC De Oliveira's testimony about his pre-arrest observations is unreliable as it is inconsistent both with the in-car camera video and PC Lai's observations. Viewed in that light, the officer's evidence does not even establish objectively reasonable grounds for the demand. Moreover, his testimonial iteration of his grounds – "reasonable grounds to believe that the accused before the court had been drinking that night" – suggests he had the lower standard applicable to a roadside screening demand in mind. The Charter breach resulting from a demand made without either subjective or objective reasonable grounds was serious and the readings should be excluded under s.24(2).
15Defence counsel alternatively submits that I should have at least a reasonable doubt of the defendant's guilt on the "over 80" count because "mouth alcohol" resulting from recent regurgitation may have brought the readings over the legal limit. PC Lai did not adhere to protocols requiring him to hold off on the breath testing for at least 15 minutes where there is reason to believe the subject has recently consumed alcohol or regurgitated stomach contents. Here the defendant had vomited at the scene and was left unattended in a cell for several minutes prior to the testing. The Crown called no evidence that the defendant did not vomit while he was left unattended.
16The Crown submits I should conclude from PC De Oliveira's testimony as a whole that he believed the defendant's ability to operate the motor vehicle was impaired by alcohol and that he simply misspoke when he testified. The odour of alcohol together with the large puddle of what appeared to be red-wine tinged vomit, the circumstances the defendant was found in and the officer's observations of fumbling, stumbling and slurred speech amply disclose an objective basis for the arrest and demand. Alternatively, I should decline to exclude the evidence under s.24(2) as any breach was technical and had a minimal impact on the defendant's Charter-protected interests while society's interests in adjudication on the merits favoured admission of this highly reliable evidence. There was ample proof of impairment and the concern about mouth alcohol was speculative.
IV. Analysis
A. Reasonable Grounds for the Breath Demand
17Section 254(3) empowered PC De Oliveira to make the breath demand if he had "reasonable grounds to believe [the defendant was] committing, or at any time within the preceding three hours [had] committed, an offence under section 253 as a result of the consumption of alcohol". Because a breath demand results in a warrantless seizure, the Crown bears the onus of proving PC De Oliveira had such grounds: R v Shepherd, 2009 SCC 35, [2009] 2 SCR 527, para.16; R v Haas, [2005] OJ 3160 (CA).
18Proof of reasonable grounds has both a subjective and an objective component. The Crown must establish that (i) PC De Oliveira actually perceived there were reasonable grounds to believe the defendant was committing, or within three hours had committed, an offence under s.253 and that this perception was objectively reasonable given the information he had: Shepherd, para.17; R v Bernshaw, [1995] 1 SCR 254, para. 48.
19I will first address whether the Crown has established the objective component of the reasonable grounds standard. PC De Oliveira cited these factors as the basis for his grounds:
(i) he found the defendant asleep in the driver's seat with the front driver's side wide open at 3:30 a.m. in a shopping mall lot;
(ii) there was a large deposit of vomit on the ground next to the car that appeared to consist partly of red wine;
(iii) the defendant had watery bloodshot eyes and admitted having one drink at a wedding earlier that evening;
(iv) the defendant was unsteady when getting out of the car, stepping into vomit, almost falling over and having to use the car door to brace himself, and he remained unsteady on his feet while speaking to the officer;
(v) the defendant slurred his words;
(vi) there was an odour of alcohol;
(vii) the defendant fumbled with the documents in his wallet when asked to produce his license;
(viii) it was odd that the defendant would park across the street from the Da Vinci banquet hall where he presumably was for the wedding given that Highway 7 is busy and the banquet hall has its own parking lot.
20Were I to take these observations at face value I would have no difficulty concluding PC De Oliveira had objectively reasonable grounds for a s.254(3) breath demand. But I do not accept the officer's testimony regarding the observations referred to in (iv) through (vii) above. His two core assertions – that Mr. Vo slurred his speech and otherwise exhibited degraded motor skills and poor balance – are inconsistent with the in-car audiovisual recording.
21PC De Oliveira testified he manually activated the in-car camera system by toggling the mic on his radio once he "confirmed what the vomit was and had that suspicion", i.e. at a point when, according to his own chronology, Mr. Vo was still seated in his vehicle. In fact, however, the audio-visual recording does not begin until the defendant is already out of the vehicle standing face to face and a few feet apart from the officer at time-stamp 3:28:40. For the next 30 seconds the officer appears to speak to the defendant but there is no audio. When the audio starts, PC De Oliveira can be heard saying "do you understand that? Do you understand you are under arrest for care and control?". Clearly, at that point the arrest is in progress and whatever observations informed the decision to arrest had already taken place.
22PC De Oliveira testified he was on scene for at most two minutes before the video recording starts. As Mr. Daley pointed out, from the moment the video begins Mr. Vo's posture is and remains "almost ramrod straight" while he stands and listens to whatever the officer is saying. There is no stumbling or swaying in a manner suggestive of impairment nor does the defendant need to brace himself on the car door or anything else to maintain his balance.
23At 3:29:54 PC De Oliveira directs the defendant to put his wallet which he was holding in his hand on the hood of his vehicle and to then turn around and face the hood while placing his hands behind his back to facilitate handcuffing. The defendant complies with neither hesitation nor discernible imbalance or lack of coordination. Contrary to PC De Oliveira's evidence in response to this portion of the video, the defendant's fleeting moment of apparent confusion about placing his wallet and identity documents on the sloped hood of his vehicle was within the range of normal reactions I would expect from anyone in that situation, sober or otherwise. When Mr. Vo is directed into the backseat of the cruiser he angles himself in and sits himself down with apparent ease despite having his arms cuffed behind his back and with little or no assistance from the officer.
24None of the defendant's verbal responses to the officer's questions and directions show any sign of slurred speech. His speech is accented, but his answers are clear and appropriate. In cross-examination, PC De Oliveira maintained that the defendant was slurring his words on the video and at one point he even imitated the manner of the defendant's speech as if to illustrate slurring. It was evident to me this officer did not grasp the distinction between accented speech and slurred speech. More generally, I found him evasive, defensive and generally unconvincing when he was confronted with the video in cross-examination.
25Breath technician PC Lai was more experienced and better trained in this field of investigation than PC De Oliveira and he dealt more extensively with the defendant, albeit about 70 minutes post-arrest. According to PC Lai, the defendant had good speech, flushed red cheeks, watery bloodshot eyes and sure balance when both standing and walking. In cross-examination PC Lai adopted notations he had made on the Alcohol Influence Report that there was no odour of alcohol, the defendant's clothes were "orderly", he displayed no unusual actions and was polite and cooperative, and in addition to good balance standing and walking also displayed "perfect" eye-hand coordination when performing tasks like attaching the mouthpiece to the instrument. PC Lai agreed with Mr. Daley that but for the breath readings he would never have concluded Mr. Vo's ability to operate a motor vehicle was impaired. I find PC Lai was both a credible and a reliable witness.
26PC De Oliveira's testimony about his observations of the defendant at the time he handed him over to PC Lai provide yet another reason to reject his evidence. Whereas PC Lai detected no slurred speech, PC De Oliveira testified the defendant's "speech was starting to clear up" and "wasn't as slurred as it was at the scene". PC Lai observed sure balance for both standing and walking and perfect eye-hand coordination; in contrast, PC De Oliveira testified in-chief that the defendant "was starting to walk more normally", was "a little more sure on his feet" and that "there was still a bit of a delay to his responses". PC Lai would not have concluded the defendant was impaired without the breath readings; PC De Oliveira would only allow that the "signs of impairment were starting to fade".
27In cross-examination, PC De Oliveira testified the defendant's balance was "much better at the police station, especially from the first observations when he was coming out of the vehicle", i.e. especially compared to what he observed in forming his grounds before the video started recording. The officer's insertion of that distinction into the comparison at this point of his testimony struck me as contrived. It was also an implicit (and I suspect unintentional) acknowledgement of what he would not acknowledge explicitly, i.e. that his purported "first observations when [the defendant] was coming out of the vehicle" are simply inconsistent with what can plainly be seen on the video which began recording mere moments later.
28I do not intend to suggest that PC De Oliveira simply made up his observations. I agree with Mr. Daley that the frailty of this officer's evidence is likely attributable more to inexperience than anything else, and as counsel pointed out, PC De Oliveira was otherwise courteous and professional in his treatment of the defendant. The officer likely observed something he interpreted as imbalance attributable to impairment by alcohol. But the defendant had just woken up and his first two or three steps may have been unsteady on that account. Or perhaps when he "stepped right into the vomit that was on the ground" he was taken aback and "lurched forward" and/or "used his hands to brace himself on the door" and/or "almost fell over" by way of reflexive response. Whatever the case, only moments later the defendant exhibited no sign of motor imbalance.
29In addition to watching the video when it was played in court I have reviewed the relevant portions of it several times in my deliberations. In assigning weight to it, I have been mindful of its limitations: while it is a reasonably clear recording of a well-lit scene it does not place me in as good a position to observe as PC De Oliveira was in at the time; and, of course, I have no video corresponding to the specific observations the officer relied on in forming his grounds.
30Despite these limitations, the video serves as "a silent, trustworthy, unemotional, unbiased and accurate witness who has complete and instant recall of events" and it provides me with "strong and convincing evidence that of itself [demonstrates] clearly either the [accuracy or falsity of the officer's observations and conclusions concerning the indicia of impairment]": R v Nikolovski, [1996] 3 SCR 1197 at paras. 28 and 36. I note as well that what I see on the video accords with what PC Lai observed 70 minutes later and does not accord with PC De Oliveira's purported observations either at that time or at the scene.
31As for PC De Oliveira's inclusion of the defendant's parking choices in his grounds, even if one accepts he could simply assume the wedding had been held at the Da Vinci banquet hall, the officer had no information on when or why the defendant parked there and inferring he did so because his judgment was impaired by alcohol was a bounding leap of logic. Far from strengthening the objective basis for a breath demand, the officer's reliance on this surmise further undermines confidence that he evaluated information in a reasonable, open-minded and logical manner.
32Accordingly, I do not accept PC De Oliveira's evidence in relation to (iv) through (vii) on the list in paragraph 19 above and (viii) adds no objective weight to the grounds. The only objectively discernible facts supporting the officer's grounds are that the defendant was found asleep in the driver's seat with the front driver's side wide open at 3:30 a.m. in a shopping mall lot next to a large deposit of vomit whose colouring was consistent with red wine and that he had watery and bloodshot eyes which may have been attributable to the fact he had just been awoken. I am not prepared to accept the officer's evidence he smelled an odour of alcohol over the vomit. Given the overall circumstances and the defendant's admission to the officer that he had one drink earlier in the evening there was an objective basis for a s.254(2) ASD demand but not for an arrest and a s.254(3) breath demand.
B. Subjective Component of Reasonable Grounds
33I now turn to the subjective component which is disputed in this case because PC De Oliveira never testified he believed the defendant was committing, or within three hours had committed an offence under s.253, nor did he testify to the same effect using different words. Instead, he testified he had "reasonable grounds to believe [the defendant] had been drinking that night" and he therefore "placed him under arrest for care and control of a motor vehicle."
34It is possible that PC De Oliveira's held the requisite subjective belief for a s.254(3) breath demand and simply misspoke when he testified. It is also possible given his choice of words that he equated the required grounds for a breath demand with the grounds for an ASD demand, i.e. "reasonable grounds to suspect that a person has alcohol or a drug in their body".
35The officer said other things both in court and on the video that lend credence to the latter interpretation and I am not prepared to infer PC De Oliveira had the requisite subjective grounds despite his testimony on this point. I find it more probable that PC De Oliveira did not understand the legal content of the applicable standard and/or conflated it with the lower standard applicable to an ASD demand. At no point did he ever state directly what his grounds were for the demand, as opposed to the arrest, and both in his evidence and on the video he repeatedly referred to having arrested the defendant for "care and control" as opposed to "care or control while his ability to operate the vehicle was impaired by alcohol" or anything to that general effect. I appreciate that it is not necessary for an officer to utter any "magic words" when articulating his grounds but here the only words he uttered were the words one might expect from someone who had the lower ASD demand standard in mind or, for that matter, from someone who was not entirely clear what grounds were required.
36Accordingly, neither the objective nor the subjective component of the reasonable grounds standard has been established and Mr. Vo's s.8 Charter rights were violated. The remaining question is whether the evidence should be excluded under s.24(2).
C. Section 24(2) Charter Exclusion Analysis
37In applying s.24(2) of the Charter I must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard for (i) the seriousness of the Charter-infringing state conduct; (ii) the impact of the breach on the Charter-protected interests of the accused; and, (iii) society's interest in the adjudication of the case on its merits: R v Grant, 2009 SCC 32, [2009] 2 SCR 353; R v Harrison, 2009 SCC 34, [2009] 2 SCR 494.
38As my colleague Green J. recently observed "[t]here is a continuum of Charter-infringing state conduct -- a 'fault line'… -- that extends from the negligent or inadvertent to the knowing or intentional subversion of constitutionally protected rights": R v Lofthouse, 2017 ONCJ 12, para.12, citing R v Kitaitchik, [2002] OJ 2476, 166 CCC (3d) 14 (CA), para. 41.
39Even though the Charter-infringing state conduct appears largely attributable to the officer's inexperience, proceeding with an arrest and breath demand in the absence of subjective and objective grounds is a serious rather than a technical or minor violation. While good faith can reduce the seriousness of the violation and the need for the court to disassociate itself from the police conduct"neither negligence nor wilful blindness by the police can properly be characterized as good faith" and while "[d]eliberate, wilful, or flagrant disregard of Charter rights may require exclusion of the evidence…[e]ven a significant departure from the standard of conduct expected of police officers will lean this aspect of the inquiry in favour of exclusion of the evidence": R v Rehill, 2015 ONSC 6025 at para. 28. I find the Charter breach in the case before me falls towards the serious end of the spectrum and weighs in favour of exclusion.
40Although the seizure of the defendant's breath samples was minimally invasive, in considering the impact of the breach on the Charter-protected interests of the defendant I must also consider the impact of the deprivation of liberty caused by the unlawful arrest: Lofthouse, supra at paras.16 to 18. The added impact of the deprivation of liberty is dampened to some extent by the fact that PC De Oliveira had grounds to detain the defendant and make an ASD demand which might well have furnished the officer with grounds for a valid arrest and s.254(3) breath demand: see, R v Stevenson, 2014 ONCA 842 at paras. 70 to 71. I find the second Grant factor has a neutral effect, i.e. it favours neither exclusion nor inclusion.
41The breath results are reliable evidence and essential to Crown's case. While there is a societal interest in an adjudication of the case on its merits, the defendant was found asleep behind the wheel of a stationary vehicle with a blood/alcohol concentration just barely above the legal limit and the magnitude of that interest is consequently lower than in many "over 80" cases. The third Grant criterion weighs against exclusion.
42Proceeding with a s.254(3) demand in the absence of both objective and subjective grounds is a serious breach. The Criminal Code scheme provides officers in this situation with an intermediate investigative tool, the approved screening device demand, which the officer should have used in this case. Ultimately, balancing the Grant factors on the facts of this case comes down to my determination of "whether admitting the evidence would send the message to the public that courts condone deviations from the rule of law by failing to disassociate themselves from the fruits of unlawful conduct": Rehill, para. 28. In my view, admitting the evidence would have that effect and this outweighs society's interest in an adjudication on the merits. It follows that admitting the breath results would bring the administration of justice into disrepute and consequently they must be excluded under s.24(2) of the Charter.
D. Alternative Argument Regarding Mouth Alcohol
43While it is not strictly necessary to address the defendant's alternative argument regarding the "over 80" count, I think it appropriate to indicate that had I not excluded the breath results I would have not hesitated to find the defendant guilty. There was evidence that the defendant had vomited long before the first breath test but there was no evidence he vomited or otherwise regurgitated the contents of his stomach after his arrival at the station. By all accounts his condition was much improved by that time. Mr. Daley submits there is no evidence he did not vomit in his cell in the minutes leading up to the test. Given the overall context, however, the more pertinent point is that there is no evidence to suggest he did vomit in his cell. The Crown is not required to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused": R v Bagshaw, [1972] SCR 2, at p. 8.
E. Impairment Evidence
44The observational evidence of impairment falls well short of proof beyond a reasonable doubt given the conclusions expressed above. I could infer no particular degree of impairment from the breath readings even if they were admissible: R v Letford, [2000] OJ 4841 (CA). I am not persuaded beyond a reasonable doubt that the defendant's ability to operate a motor vehicle was impaired even to the modest degree described in R v Stellato, [1994], SCJ 51, affg, [1993] OJ 18 (CA).
V. Disposition
45Accordingly, both charges are dismissed.
Signed: Justice John McInnes
Released: April 3, 2017