Ontario Court of Justice
Between:
HER MAJESTY THE QUEEN
— AND —
AYEMERE UMANE
Before: Justice G.P. Renwick
Heard on: 17 July 2017
Reasons for Judgment released on: 18 July 2017
Counsel
D. Mangat — counsel for the Crown
M. Pasquale — counsel for the defendant, Ayemere Umane
RENWICK J.:
INTRODUCTION
1Yesterday, this trial took about two hours of actual court time to complete, but given that the matter finished at four o'clock in the afternoon, and there were still other matters to be dealt with, I was not prepared to decide the matter. I have now had an ample amount of time to review the evidence, the submissions of both counsel, and the cases that were referred to by the parties and these are my reasons for decision.
2The Defendant faces the related charges of impaired operation of a motor vehicle ("impaired driving") and operating a motor vehicle with an excess blood alcohol concentration ("over 80").
3The Defendant brought an application to exclude the breath readings on the basis of alleged violation sections 8 and 10(b) of the Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982 ("the Charter"). At the start of the trial, the parties agreed to proceed with the Charter Application by way of a blended voir dire, to be heard along with the evidence called on the trial proper.
4With respect to the impaired driving charge, the Defendant submits that the evidence of the arresting officer does not rise to the level of impairment to operate a motor vehicle, as required by R. v. Stellato, [1994] S.C.J. No. 51, and consequently, there is a reasonable doubt whether or not this charge has been proven.
5The prosecution called one witness and filed a Certificate of Qualified Technician. The Defendant led no evidence on either the Application or the trial itself. At the completion of the Crown's case, submissions were made by both counsel on the Charter Application and the trial.
ANALYSIS
OVER 80
Section 8 Charter Application
6The Applicant alleged a breach of his section 8 Charter rights by reliance on the testimony of Constable Medeiros, his arresting officer. According to the Applicant, the officer lacked the requisite reasonable and probable grounds to arrest him for the offence of impaired driving. The Applicant relied on the lack of precision and recall in the officer's evidence as proof that the requisite standard for arrest and the subsequent breath sample demand had not been reached. As the seizure of samples of the Defendant's breath was made pursuant to the provisions of the Criminal Code, rather than by warrant, the Application may succeed if the statutory regime for the seizure of breath samples was not strictly followed.
7Section 254 is the breath demand section of the Code. In order for a peace officer to make a valid breath sample demand the officer must have reasonable and probable grounds to believe that an offence under section 253, as a result of alcohol consumption, is being, or within the preceding three hours has been, committed.
8The arresting officer's grounds comprised of the following:
i. He received a radio call of a complaint of a possibly impaired driver made by a caller who described a silver Mercedes with license plate BPTH 241 that was seen swerving in and out of traffic on Erin Mills Boulevard, south of highway 403;
ii. Within minutes, from a stationary position at Erin Mills and Dundas Street, the officer observed a silver Mercedes travelling southbound on Erin Mills in lane 3 with a vehicle travelling behind it; someone in the other vehicle was pointing to the Mercedes;
iii. At the southbound red traffic light at Dundas, the officer got behind the Mercedes and when the light turned green, he followed it; he observed the vehicle swerve from lane 3 to lane 2 almost striking another vehicle before swerving back into lane 3; the officer observed the vehicle swerve two more times before deciding to pull over the motorist; and
iv. The officer attended to speak with the driver of the Mercedes once it pulled over; he advised the Defendant of the reason for the traffic stop; the officer immediately smelled the odour of an alcoholic beverage when speaking with the Defendant; he noticed that the Defendant had watery, droopy eyes; when the officer asked for the driver's license, insurance, and vehicle registration documents the Defendant produced the license slowly, after a delay; the officer asked again for the other documents; at this point, the Defendant opened the driver's door to retrieve the documents from the door pocket; the Defendant dropped the documents before handing them to the officer; the Defendant's eyes began to open and close slowly; when he spoke, the Defendant had slurred speech; the officer noticed a cracked seal on a bottle of alcohol in the back seat.
9Reasonable grounds to believe an offence has been committed must be articulable, subjectively held by the officer, and objectively reasonable. The officer is entitled to rely on hearsay, unless he has a reason to doubt the truth of the information. Reasonable grounds are not proof on a balance of probabilities, but they involve being satisfied of the probability of a state of affairs. The officer can be mistaken in the belief, as long as his belief is reasonable and there was no reason for him to doubt the information he believed.
10Recently, our Court of Appeal considered the standard for a warrantless arrest in R. v. Carelse-Brown, [2016] O.J. No. 6564. At paragraph 28 of Carelse-Brown, the Court quoted from its decision in R. v. Golub:
In determining whether the reasonableness standard is met, the nature of the power exercised and the context within which it is exercised must be considered. The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, the officer's decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant.
11I am satisfied that Constable Medeiros had reasonable grounds to believe that the Defendant was impaired in his ability to operate his motor vehicle by the consumption of alcohol given the information he received about another motorist's complaint of the poor driving of a silver Mercedes in the area, his observations of a motorist pointing at the Defendant's Mercedes, the observations he made of the continued inability of the Defendant to maintain his vehicle in his lane, the smell of an alcoholic beverage when he approached the Defendant, the Defendant's behaviour in producing his documents, and the Defendant's overall appearance, and behaviour. While there may have been other explanations for the Defendant's behaviour, conduct, and appearance that night, the arresting officer's belief that he was dealing with an impaired driver was reasonable and as a result, I am not satisfied on a balance of probabilities that there was a breach of s. 8 of the Charter.
Section 10(b) Charter Application
12At common law, if the police do not respect both the informational and the implementational requirements of s. 10(b) of the Charter, the results of the breath sample testing may be excluded and the prosecution of this offence will fail. The Applicant submits that the informational component of the Brydges caution was deficient and the police did not make enough efforts to satisfy the implementational requirements of Bartle. The Applicant also takes issue with the efforts of the police to assist him in contacting his counsel of choice. I will respond to each of these arguments in turn.
13Constable Medeiros read into the record the wording of the rights to counsel he provided to the Defendant. There were no issues taken with the wording by the Applicant. The officer was never cross-examined on the wording of the rights to counsel or whether or not he gave the rights to counsel as he testified he did. There was no evidence lead to contradict the officer's evidence. Moreover, the breath sample procedure was captured on video and the recording was made a provisional exhibit on the trial subject to the ruling on the Charter Application. During that video I heard the Qualified Technician read the Defendant his rights to counsel. Counsel did not suggest how the rights to counsel provided to the Defendant was deficient in terms of its content. Counsel submits that the police never explained the role of Duty Counsel.
14I do not accept that there was any informational deficit in the rights to counsel provided to the Defendant by either the arresting officer or the Qualified Technician. It was clear from the breath sample video that the Defendant only wanted to speak to his lawyer. The Defendant never asked what the Legal Aid lawyer or Duty Counsel was and he was specifically told that this was a free service to put him in contact with a lawyer who could assist him if he wanted. Beyond telling the Defendant that this service was "free" and would put him in contact with a "lawyer" it is difficult to imagine what more could have been said before the Applicant would be in a position to argue that the length of the explanation was a delay or an impediment to exercising his s. 10(b) rights.
15Did the police comply with their implementational duties respecting s. 10(b) of the Charter? In this case, Constable Medeiros testified that he made four attempts to contact the counsel requested by the Applicant. The officer called a telephone number for the Defendant's counsel of choice that the officer located from a lawyer's directory at the police station. He testified that he called that number shortly after their arrival at the police station at 11:30 pm, and again at 11:34 pm, 11:40 pm, and 12:10 am.
16Constable Medeiros testified that he could not recall whether there was an outgoing voicemail message, whether any voicemail message identified the line that had been reached, or why he was unable to leave a voicemail message for the Applicant's counsel on each of the four occasions when he called, but he did not equivocate in any aspect while giving this evidence. While one might fault this officer for his lack of memory or notes on this point, the officer cannot be faulted for his candid admission that he did not recall or note why he could not leave a message for the Defendant's counsel of choice. There was no evidence lead that contradicted the officer's evidence. Given the officer's admissions his evidence seems balanced and compelling. I accept his evidence as truthful.
17Constable Medeiros also testified that he asked the Defendant whether he wanted to speak with Duty Counsel and the Defendant told him he did not. This part of his evidence is corroborated by the Defendant's responses to the Qualified Technician. On two occasions the Qualified Technician asked the Defendant if he wanted to speak to the Legal Aid lawyer and the Defendant refused this assistance each time. From the breath sample procedure recording it is clear that when the Defendant was asked if he wanted to speak with the "free" lawyer or the "Legal Aid lawyer" the Defendant quickly and definitively answered"no." Again, I can find no fault with the Legal Aid information and the offers made by both officers to contact Duty Counsel to speak with the Defendant.
18Counsel for the Applicant made several arguments with respect to the attempts to contact the Defendant's counsel of choice: the police are vague about which number they located and called, the Defendant was never asked if he wanted to call a different lawyer, and the Defendant was never asked if he knew someone else who could help him reach his lawyer. In his written Application the Defendant cites R. v. Tremblay, [1987] 2 S.C.R. 435, R. v. Playford, [1987] O.J. No. 1107, and R. v. Bernshaw, in addition to Bartle. Unfortunately, counsel did not refer to any of these cases in oral argument or suggest how the jurisprudence impacted on this aspect of the Application.
19The Supreme Court decision in Tremblay suggests that the police ought to give a detainee a reasonable opportunity to contact his counsel, which includes suspending the investigation after a call to the detainee's wife was made to permit her some time to arrange contact with counsel. This Applicant never suggested that there was another telephone number or any other person who might help him facilitate contact with counsel. Section 10(b) requires reasonable diligence on the part of the detainee. By insisting only on speaking with his lawyer and leaving the role of contacting the lawyer with the police without asking what number they were calling or suggesting any other way of contacting his counsel, the Applicant cannot later complain that the police breached his right to counsel, in the absence of even a scintilla of evidence to suggest that the efforts made by the arresting officer were doomed to fail. The bald references to Playford and Bernshaw with nothing more are completely unhelpful.
20I can find no fault with the efforts made by Constable Medeiros to contact the preferred counsel of choice on the night of the Defendant's arrest. There were multiple attempts made to reach the lawyer at almost midnight, when the office of the lawyer was not likely to be open, the alternative of Duty Counsel was offered on more than one occasion without forcing the Defendant to forego his choice of counsel, the Defendant was told at the start of the breath sample procedure that the other officer would try to reach his lawyer and if contact was made "we'll stop what we're doing in here and we'll get you on the phone with him, right away." The evidence revealed that Constable Medeiros continued to attempt to reach the Defendant's counsel even after the breath testing procedure had begun.
21Counsel for the Applicant conceded that if the Court finds that there were no Charter violations, or, alternatively, if the Court does not exclude the results of the breath testing pursuant to s. 24(2) of the Charter, the Certificate of Qualified Technician is otherwise admissible, reliable, and could support a finding of guilt of the over 80 offence.
22The Charter Application fails and both provisional exhibits are full exhibits at trial.
IMPAIRED DRIVING
23I have already determined that there were ample grounds to arrest the Defendant for this offence. However, that is not the end of the matter. I will not find the Defendant guilty of this offence unless I am satisfied beyond a reasonable doubt that the Defendant's ability to operate his motor vehicle that night was impaired from alcohol consumption.
24Counsel for the Defendant argued that the offence has not been proven for the following reasons: the grounds and observations of the arresting officer were deficient; the officer's evidence was too vague; the officer could not recall the surrounding circumstances of the offence, such as the make of the vehicle that pointed out the Defendant's car, or the vehicle that was allegedly impacted by the swerve from lane 3 to lane 2; and the poor driving does not rise to the level of proof of impairment by alcohol, beyond a reasonable doubt.
25Again, without any reference to any particular passages or without even producing a copy of the cases, Counsel attempted to place reliance on R. v. Censoni, [2001] O.J. No. 5189 (SCJ) and Playford. I have looked at these cases and cannot imagine how they assist counsel for the Defendant in this part of his closing argument.
26I accept the arresting officer's evidence of his observations that night. He was candid, even when it became obvious that his memory beyond his notes was poor and his notes were not beyond criticism. I am satisfied that Constable Medeiros was truthful in his evidence of the Defendant's driving, behaviour, and his appearance that night. There were no areas where cross-examination revealed any inaccuracies in the officer's testimony. There were no pieces of evidence in this trial that even slightly contradicted the officer's version of events. Constable Medeiros did not guess to improve his evidence, and I completely accept his testimony about the Defendant's driving, the indicia of alcohol consumption and impairment he observed, and the Defendant's conduct.
27The Defendant's driving was terrible. In the short period of time while under observation by Constable Medeiros the Defendant almost collided with another vehicle in an adjacent lane. His driving was so unusual that another motorist was pointing at the Defendant's car as it passed the police station parking lot from where Constable Medeiros made his initial observations. As well, either that same third-party motorist, or another person felt compelled to call the police based on the poor driving of the Defendant just south of highway 403, southbound on Erin Mills.
28In Stellato, our Court of Appeal provided the following test, which remains the law for the proof of this offence:
…before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.
29Impairment by alcohol is not determinative of impairment of one's ability to operate a motor vehicle: R. v. Andrews, 1996 ABCA 23 , [1996] A.J. No. 8. There is a distinction in law between impairment generally and impairment of one's ability to operate a motor vehicle. I must determine if the defendant's ability to operate his motor vehicle was impaired by alcohol to any degree, not whether his functional abilities were impaired.
30Solely on the basis of Constable Medeiros' observations I am satisfied beyond a reasonable doubt that the Defendant's ability to operate his vehicle was impaired by the prior consumption of alcohol for the following reasons:
i. The Defendant's driving included a near-collision with another vehicle driving in a different lane;
ii. The Mercedes operated by the Defendant swerved three times in the brief period while the officer observed the vehicle before he decided to investigate the driver;
iii. The weather was clear, the roads were dry, the artificial lighting was good and there was no apparent reason for the Defendant's failure to control his motor vehicle, nor have these observations been contradicted;
iv. The Defendant smelled like an alcoholic beverage;
v. There was a half-empty bottle of whiskey on the back seat of the Mercedes;
vi. The Defendant was slow to react and comply with the direction to produce his driver's license, vehicle ownership, and insurance documents, and in fact, he had to be asked a second time to produce the documents for the vehicle, and when he finally retrieved them, he dropped the documents before handing them to the officer; and
vii. The Defendant had droopy, watery eyes and his speech was slurred.
CONCLUSION
31Operating a motor vehicle requires due care and attention. In clear weather conditions it is not difficult to maintain a motor vehicle within a clearly marked driving lane, unless there are significant mechanical issues. Based upon all of the evidence and the submissions of counsel, alcohol consumption is the only possible explanation for all of the poor driving, slow reactions, appearance, and behaviour of the Defendant on the evening of his arrest. I am satisfied beyond a reasonable doubt that the Defendant was impaired in his ability to operate his motor vehicle and this impairment fully explains the Defendant's driving as observed by Constable Medeiros.
32On the night in question, and as a result of his driving, the Peel Regional Police investigated the Defendant and took samples of his breath to determine the alcohol concentration, if any, in his blood. The police did not breach his Charter rights under s. 8 or 10(b). The Certificate of Qualified Technician is admissible in this trial. It establishes that the Defendant's blood alcohol concentration was more than twice the legal limit while he drove his Mercedes.
33On the basis of all of the evidence adduced during this trial, I am satisfied beyond a reasonable doubt that the Ayemere Umane committed the offences of driving a motor vehicle while his ability to do so was impaired by alcohol, and while driving his motor vehicle the Defendant's blood alcohol concentration exceeded the legal limit of 80 mgs of alcohol in 100 mL of his blood. Accordingly, I find the Defendant guilty of both offences as charged.
Released: 18 July 2017
Justice G. Paul Renwick