ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
DAVID OSVALDO PEREZ MEJIA
Before Justice J.W. Bovard
Heard on November 21, 22, 23, 29, 2018
Reasons for Judgment released on March 8, 2019
Ms. V. Gallegos counsel for the Crown
Mr. N. Stanford counsel for the defendant David Perez Mejia
Bovard J.:
1These are the court’s reasons for judgment after the trial of Mr. Perez Mejia on charges of ‘Over 80’ and impaired driving. The charges arise out of an incident that occurred on March 11, 2017 in Toronto.
Issues
2The Charter issues are whether the police breached Mr. Perez Mejia’s rights under ss. 8, 9, 10 (a) or 10 (b) of the Charter. Further, if they did, should the evidence against Mr. Perez Mejia be excluded under s. 24 (2) of the Charter.
3Other issues are:
(1) Did the police take the breath tests as soon as practicable?
(2) Was Mr. Perez Mejia’s ability to drive a motor vehicle impaired by alcohol?
4The defence has the onus of proving on a balance of probabilities that the police breached Mr. Perez Mejia’s rights under the Charter, and if they did, if the evidence should be excluded under s. 24 (2) of the Charter.
5The Crown has the onus of proving the charges beyond a reasonable doubt.
Summary of the court’s disposition of the issues:
The Charter issues
6For the reasons stated below, I find that the police breached Mr. Perez Mejia’s rights under ss. 8, 10 (b). Further, I find that the evidence of the breath samples should be excluded under s. 24 (2) of the Charter.
As soon as practicable
7For the reasons stated below, I find that the police administered the breath tests as soon as practicable.
Impaired driving
8For the reasons stated below, I find that the Crown did not prove beyond a reasonable doubt that Mr. Perez Mejia’s ability to drive a motor vehicle was impaired by alcohol.
Final disposition of the charges
9For the reasons stated below, I dismiss all of the charges.
The Evidence
10At 8:20 AM on the day in question, Ms. Muradofa, a security guard at 333 Bloor St. East in Toronto, heard a loud noise and looked up. She saw a big white truck pulled up her right outside of the door the building.
11The truck’s bumper on the right passenger side was broken. She saw pieces of it on the ground. Mr. Perez Mejia was sleeping at the steering wheel.1 She called her supervisor and then went outside to see if Mr. Perez Mejia was okay.
12The truck was running. She knocked on the window a couple of times and screamed at him. Mr. Perez Mejia’s head was down and his eyes were closed. At first, he did not move, or answer her questions. Then he signalled that he was okay by giving her a thumbs up. His eyes were barely open when he did this. Then he put his head back down on the steering wheel.
13Ms. Muradofa returned to the building and called her supervisor again. The police and her supervisor arrived approximately six or seven minutes after she first saw the truck.
14Officer Anderson testified that he received a call at approximately 8:33 AM with regard to a personal injury accident at this location. The information that he received was that a white Chevrolet pickup truck collided with a pole.
15He went to the scene. He did not record what time he arrived. He saw a Chevrolet Silverado truck with its emergency lights on. He went to the passenger side to investigate what he thought was a motor vehicle accident. He saw that the truck had collided with a pole. Mr. Perez Mejia’s head was face down. When he looked up he saw that Mr. Perez Mejia’s eyes were red and glassy.
16Mr. Perez Mejia lowered the window to speak with the officer. Officer Anderson put his head in the window to see if Mr. Perez Mejia was okay and to check for weapons. He asked him if he was aware that he had been in an accident. He was not.
17As they spoke, Officer Anderson detected a slight odour of an alcoholic beverage on Mr. Perez Mejia’s breath. Curiously, Officer Anderson said this did not give him a reasonable suspicion that Mr. Perez Mejia was driving with alcohol in his body. He wanted to give him the benefit of the doubt. He was still investigating a motor vehicle accident at this point. However, Mr. Perez Mejia was not free to leave.
18He asked Mr. Perez Mejia for the ownership of the vehicle, insurance documents, and his driver’s license. In examination-in-chief, he said that there was a brown wallet in the console, but Mr. Perez Mejia looked in the glove box for his wallet. But Officer Anderson admitted in cross-examination that he did not know what Mr. Perez Mejia was looking for in the glove box. Eventually, he found his wallet in the console.
19In examination-in-chief, Officer Anderson said that Mr. Perez Mejia looked in his wallet for one of the documents that the officer asked to see. After several minutes he found it. The defence pointed out to Officer Anderson that the in-car camera video shows that at 8:36:50 AM he asked Mr. Perez Mejia for his driver’s licence. At 8:37:58, Mr. Perez Mejia had located all of the documents. Officer Anderson explained that he was not looking at his watch because he was watching Mr. Perez Mejia for officer safety. It felt like several minutes.
20In addition, in cross-examination, Officer Anderson admitted that it was not accurate that he asked Mr. Perez Mejia more than once for his ownership and insurance documents as he said in examination-in-chief. The in-car camera video shows that he only asked him one time.
21The officer asked him why he was so sleepy. Mr. Perez Mejia said that he went to a bar the night before. He worked as a caretaker of a building in which he spent the night rather than going home.
22Mr. Perez Mejia gave Officer Anderson his driver’s license and the registration for the truck. Based on these documents he was able to identify Mr. Perez Mejia. He said that it took Mr. Perez Mejia several minutes to find the ownership documents and his licence.
23Mr. Perez Mejia asked if he could get out of his truck. He wanted to see the post with which he collided. Officer Anderson testified that Mr. Perez Mejia looked around as if he were in shock so he inferred that he did not know that he hit the post.
24Officer Anderson told him to stay in his truck so that he would not get hit by a car. There was a lot of traffic on the road. He took Mr. Perez Mejia’s driving documents to his cruiser to perform a preliminary investigation. During this investigation, while seated in the cruiser, he decided that it was a drinking and driving investigation. He did not remember what time it was when he made this decision. It took some time for him to decide. Prior to his, when he was speaking with his partner, Officer Jones, he did not think that it was a drinking and driving investigation.
25He checked to see if Mr. Perez Mejia’s license was valid. Then he checked CPIC. He does not have a note regarding how long it took him to do the CPIC check. Nor could he recall how long it took. But he said that this took a long time because he had a combination of queries and had to run different versions of the computer software. He thought that it could be that as a result it took the computer an extra-long time to give a response. He wanted to do these checks because he wanted to know background information about Mr. Perez Mejia. But he admitted that up to that point there was no reason to suggest that he was a safety concern.
26Another reason for the delay was that he was checking for different permutations of Mr. Perez Mejia’s name.
27In addition, this was the first time that he had used this software for an impaired driving charge. Officer Anderson said that this new system sends all of the relevant information to the Officer-in- Charge who will book in the accused person at the police station when they arrived there. The new method is faster than the way they did it before.
28Officer Anderson said that he could have gotten out during this time to tell Mr. Perez Mejia that he was under arrest, but he wanted to determine if his licence was valid.
29Officer Anderson did not remember what he and Officer Jones discussed in the cruiser while he was inputting information into the computer system and running checks on Mr. Perez Mejia. However, the in-car camera audio shows that at 8:45 AM he told Officer Jones that he did not smell alcohol on Mr. Perez Mejia’s breath. This led Officer Anderson to admit that his testimony about smelling alcohol on Mr. Perez Mejia’s breath was inaccurate.
30A further inaccuracy is that in his notes he wrote that he smelled alcohol on Mr. Perez Mejia’s breath the first time that he spoke to him, which was before he told Officer Jones that he had not smelled alcohol on his breath.
31Officer Anderson said that when he returned to the truck he had not yet decided to arrest Mr. Perez Mejia. He did not have reasonable and probable grounds to arrest him when he returned to his cruiser, nor did he learn anything while he was in the cruiser that would have given him reasonable and probable grounds to arrest him.
32So before he arrested him he asked a couple more questions, which augmented his reasonable and probable grounds. He did not specify what questions he asked, though.
33Officer Anderson testified that an additional factor that led to him forming reasonable and probable grounds that Mr. Perez Mejia’s ability to drive a motor vehicle was impaired by alcohol was that when he returned to speak to him he smelled a stronger odour of an alcoholic beverage on his breath.
34However, this contradicts his evidence that he did not smell alcohol on his breath the first time that he spoke with him. Then he admitted that he could not remember if he smelled alcohol on his breath the first time that he spoke with him because it has been 1 ½ years since the incident occurred. Consequently, he admitted that his notes, which I presume were made at the police station, were not reliable where they say that he smelled alcohol on Mr. Perez Mejia the first time that he spoke with him. Moreover, he admitted that he did not remember smelling alcohol on Mr. Perez Mejia the second time that he spoke to him.
35Finally, in the synopsis that he wrote regarding the offence he said that the “officers” smelled the obvious odour of alcohol on Mr. Perez Mejia’s breath and person. This calls into question his own evidence and as will be seen below, the evidence of Officer Jones who said that he never smelled the odour of alcohol coming from Mr. Perez Mejia.
36When Officer Anderson returned to Mr. Perez Mejia’s truck he asked him to step out of the truck. At 8:48 AM, he arrested him for impaired driving and put handcuffs on him. At 8:49 AM, he told him why he arrested him. Then he took him to his police cruiser. He told him that he would have to read some things to him. Sometime during this he asked him how much he had drunk. Confusingly, he testified in cross-examination that his notes say that he arrested him at 9:09 AM. He said that he did not know why he made that note.
37Officer Anderson read Mr. Perez Mejia’s rights to counsel to him from his memo book. He said that he understood. He said that he had information regarding a lawyer in his cell phone.
38Next, Officer Anderson made a breath demand on Mr. Perez Mejia.
39The in-car camera in the police cruiser showed the following:
8:34 AM – Mr. Perez Mejia’s truck with the emergency lights on is visible. Officers Anderson and Jones go to Mr. Perez Mejia’s side of the truck. Officer Anderson walks away and returns after a few minutes.
8:37 AM – Officer Jones is standing by the truck. He says that there is a lot of mouthwash in the truck and possibly gum. Mr. Perez Mejia speaks with Officer Anderson who asks him if he knew that he had hit a pole.
8:39 AM – the ambulance arrives and examines Mr. Perez Mejia.
8:42 AM – the ambulance leaves. Officer Anderson is doing his background checks on Mr. Perez Mejia.
8:45 AM – a conversation is seen between Officer Anderson and Officer Jones in which Officer Jones asked Officer Anderson if he smelled alcohol and what grounds they had at that point.
8:48 AM – Officer Anderson goes to Mr. Perez Mejia’s side door of the truck. There is a conversation that was difficult to decipher. Officer Anderson tells Mr. Perez Mejia to get out of the truck. When he does, the officer puts handcuffs on him and takes him to the police cruiser. He tells Mr. Perez Mejia that he is going to read him some things.
8:49 AM – Officer Anderson arrests Mr. Perez Mejia for impaired driving. He gives him his rights to counsel. Mr. Perez Mejia says that he understands. He asks to call a lawyer. He says that the information regarding his lawyer is in his cell phone. Officer Anderson says that when they get to the police station he will call his lawyer for him.
Officer Anderson testified that he did not let him call his lawyer then because he would not have known whom he was calling. He could have called someone to help him escape. In addition, the cruiser has a microphone so he would not have had privacy. Officer Anderson admitted that the microphone can be turned off. He also said that he could not give him privacy because Officer Jones was in the car with him. However, as can be seen below, at 8:51 AM, both officers leave Mr. Perez Mejia in the cruiser to go to the truck and look inside of it.
He added that since Mr. Perez Mejia had not yet been taken to the station no pat down search had been performed. Also, he was in his care so he did not want to leave him alone. However, as can be seen below, at 8:51 AM, he did leave him alone.
8:50 AM – Officer Anderson makes a breath demand. Officer Anderson says that Mr. Perez Mejia understood the demand. Officer Anderson testified that at this point he told Mr. Perez Mejia to “sit tight” and he left the cruiser for 20 minutes. As seen below, it was 21 minutes.
8:51 AM – both officers go to the truck and look inside of it. This contradicts Officer Anderson’s evidence on cross-examination that when he got out of the cruiser Officer Jones was in the cruiser with Mr. Perez Mejia.
8:52 AM – Officer Anderson gets Mr. Perez Mejia’s wallet and secures the truck. He rolls up the windows.
8:53 AM – Officer Anderson tells Mr. Perez Mejia that he has his wallet and cell phone.
8:56 AM – Officer Jones speaks with Traffic Services.
8:57 AM – A Traffic Services officer arrives on scene to investigate the accident.
9:05 AM – Officer Jones tells Officer Anderson that someone should speak with the witness.
9:12 AM – Officer Anderson gives the keys to the truck to the Traffic Services officer. Next, he advises dispatch that he is going to take Mr. Perez Mejia to the police station. He leaves the scene with Mr. Perez Mejia. Officer Jones drives the car while Officer Anderson continues inputting information into the computer. He told Officer Jones that he was okay to do this while they drove.
This conflicts with his evidence that he could not have left for the station earlier and inputted the information into the computer as they rode along because he gets motion sickness. He explained this conflict by saying that he only had a small amount of information left to input.
Officer Anderson admitted that he did not know what information the Officer-in-charge requires to book in an accused person. But he knew that some information had to be inputted before they got to the station, such as, a brief outline of the offence, location, lighting, the accused’s background information and description.
They go to the closest station with a qualified breath technician. Officer Anderson does not recall speaking with Mr. Perez Mejia about his lawyer en route to the police station. However, the in-car camera video shows that Officer Anderson asked Mr. Perez Mejia what his lawyer’s name and phone number were. He also asked him whether he had his lawyer’s card in his wallet.
The rear in-car camera was not on during the trip. Officer Anderson thought that the front and back seat cameras recorded simultaneously. He did not think that he had to activate the rear camera separately.
9:27 AM – they arrived at the police station. They have to wait 10 minutes before they can parade Mr. Perez Mejia. Officer Anderson does not have any notes with regard to this delay. He did not know why they had to wait. There are microphones and cameras all around so Mr. Perez Mejia was not able to speak to a lawyer in private at this point.
9:37 AM – the officers parade Mr. Perez Mejia before the Officer-in-Charge. They explain the reason why he is at the station. They log his personal possessions. When they finish they put him in an interview room. Officer Anderson does the paperwork to get Mr. Perez Mejia ready to see the qualified breath technician.
40The booking in video revealed the following:
- 9:39 AM to 9:48 AM – the police tell Mr. Perez Mejia that he is being video and audiotaped. They read him his rights to counsel. He says he wants to call a lawyer whose phone number is in his phone.
He appears to be walking around and standing fine. At times it appears that Officer Anderson is holding onto him, but I think that it is because he is in custody, not because he was having difficulty walking or maintaining his balance. He is also communicating well.
The police take him to an interview room or a cell while Officer Anderson does paperwork regarding the case. The breath technician is setting up at this time. It appears that Officer Jones took Mr. Perez Mejia to use the phone. Officer Anderson did not know what was happening with Mr. Perez Mejia while he waited to go to the breath room.
10:11 AM – Officer Anderson takes Mr. Perez Mejia to the breath room. Officer Anderson testified that he believes that he told the qualified breath technician why he was delivering Mr. Perez Mejia to him. That is, that he arrested him for impaired driving. He does not remember what else he told him. He believes he stayed in the breath room during the breath tests.
11:19 AM – after the first breath test the qualified breath technician turns Mr. Perez Mejia back over to Officer Anderson who returned him to the interview room.
10:38 AM – Officer Anderson takes Mr. Perez Mejia back to the breath room for the second test.
10:44 AM – the breath technician returns Mr. Perez Mejia to Officer Anderson.
2:05 PM – Sgt. Grovner releases Mr. Perez Mejia on a promise to appear and all of his property is returned to him.
41Officer Sanders was the qualified breath technician. Officer Anderson told him that Mr. Perez Mejia had been in an accident earlier that morning, he was under arrest for impaired driving, had been given rights to counsel, was cautioned, a demand had been made, and he had spoken to a lawyer.
42I saw the video tape of the proceedings in the breath room. It shows that Mr. Perez Mejia came and went into the room without any difficulty during the two breath tests. He behaved and responded properly to questions.
43Officer Sanders’ observations of Mr. Perez Mejia were that the odour of an alcoholic beverage was present, his eyes were watery and red or pinkish. He spoke well but with a Spanish accent. His face was flushed. He admitted that he had drunk beer. He was cooperative and polite. There were no obvious effects of alcohol.
44Mr. Perez Mejia’s readings were both truncated to 110 and 130 milligrams of alcohol in 100 millilitres of blood. Officer Sanders prepared the certificate of qualified analyst and the notice to introduce it in evidence. These are exhibit 1. Officer Jones served identical copies on Mr. Perez Mejia who signed them.
45Based on all of the circumstances, Officer Sanders’s opinion was that Mr. Perez Mejia’s ability to drive a motor vehicle was impaired by alcohol.
46The Crown introduced a toxicology report on consent. It is exhibit 4. It states that at Mr. Perez Mejia’s readings his ability to drive a motor vehicle would be impaired.
47Officer Anderson’s partner, Officer Jones, testified that he and Officer Anderson attended the scene as Officer Anderson said they did. He saw Mr. Perez Mejia’s truck with its emergency lights flashing. Officer Anderson went to the driver’s side of the truck. Officer Jones got out of the cruiser and walked over to Officer Anderson to give him his microphone. Then he went to the passenger side. He opened the door and listened to Officer Anderson and Mr. Perez Mejia converse.
48Officer Jones noticed damage to the front passenger side wheel well. The plastic under the wheel well was laying on the sidewalk. He examined a pole that was four or five car lengths from the truck. He noticed that it was damaged but he did not make a note of specifically what the damage was.
49After Officer Anderson initially spoke to Mr. Perez Mejia he told him to remain in the truck for his safety. This is standard procedure. Officer Jones did not think that Mr. Perez Mejia was detained at that point.
50The officers returned to their cruiser. When they were in the cruiser he told Officer Anderson that he did not observe anything that led him to believe that Mr. Perez Mejia was impaired. Nor did he smell alcohol on him. However, he said that he was not very involved with Mr. Perez Mejia.
51Officer Anderson returned to the truck to speak to Mr. Perez Mejia. Officer Jones stayed in the cruiser.
52After this, they called to find the closest breath technician in order to determine if Mr. Perez Mejia was impaired. Officer Anderson made the breath demand.
53Officer Jones was not clear at which point during this activity Officer Anderson arrested Mr. Perez Mejia, but it was at that point that he realized that they were doing a drinking and driving investigation. Up to then he thought that it was a Highway Traffic Act investigation.
54Between the arrest and leaving the scene, Officer Anderson inputted information into the computer system so that the Officer-in-Charge at the station to which they were taking Mr. Perez Mejia would have it when they arrived. That way they could book him in upon their arrival at the station.
55Curiously, Officer Jones testified that the correct time of arrest is the one that is inputted into the computer system, which is 9:09 AM. However, as seen above, the in-car camera video cites the time of arrest at 8:49 AM. When defence counsel confronted him with this information, Officer Jones said that 9:09 AM was the time that the computer program started. But he was not 100% sure.
56Officer Jones said that between 8:49 AM when Officer Anderson arrested Mr. Perez Mejia and 9:12 AM when they left for the police station, they did not think of allowing Mr. Perez Mejia to call a lawyer because he did not have any privacy in the cruiser. They could not leave him alone in the cruiser to call a lawyer because they wanted to get him to the police station as soon as possible to give his breath samples.
57Officer Jones drove to the police station. They took the quickest route. Upon arrival they requested the Officer-in-Charge and the booker to attend the booking-in area so that they could book Mr. Perez Mejia into the station. They had to wait ten minutes to get into the booking hall. This is not unusual. It depends on how busy the bookers are.
58After Mr. Perez Mejia was booked-in they put him in interview room 4. There are computers next to the interview room. Officers Anderson and Jones took off their coats, got settled in, and started to complete the required paper work. They tried to contact a lawyer for Mr. Perez Mejia as soon as possible, but it was not “life or death”. At 9:57 AM, Officer Jones gave Mr. Perez Mejia his phone to call his lawyer from the interview room. He called but there was no answer.
59At 9:58 AM, the lawyer called Mr. Perez Mejia. Officer Jones gave him the phone and he spoke to the lawyer in interview room 4. Officer Jones stepped out of the room and closed the door. He remained outside to ensure that he had privacy.
60Mr. Perez Mejia told Officer Jones that the lawyer wanted to speak to him. Officer Jones spoke to the lawyer and explained the circumstances. Then he returned the phone to him and closed the door of the interview room so that he could continue his conversation with counsel.
61After this, they took Mr. Perez Mejia to the breath room. Officer Jones went to do paper work. After the breath tests he served Mr. Perez Mejia with the required documents.
62Officer Jones did not observe that Mr. Perez Mejia’s face was flushed, or that he had the odour of an alcoholic beverage on his breath at any time, including at the police station where he had more interaction with him and would have had a better chance to observe him.
63Officer Jones testified in re-examination that he did think that Mr. Perez Mejia was impaired, which is contrary to what Officer Anderson and Officer Sanders said.
64That was all of the evidence. I will now turn to counsels’ submissions regarding the alleged Charter breaches.
Section 8
Position of the defence
65Officer Anderson’s evidence regarding his grounds for arrest are unreliable. The in-car camera video showed that approximately five minutes after he spoke with Mr. Perez Mejia the first time, he told Officer Jones in the cruiser that he did not smell alcohol on his breath. However, he testified that he remembered back at the police station that perhaps he did smell alcohol on his breath.
66Officer Anderson also testified that the odour of alcohol was stronger the second time that he spoke to Mr. Perez Mejia. This cannot be true because he said that he did not smell it previously when he stuck his head into the truck.
67A further indication of Officer Anderson’s unreliability is that he wrote in his notes that he arrested Mr. Perez Mejia at 9:09 AM. The in-car camera video shows that it was at 8:49 AM.
68With regard to Officer Sander’s evidence that he smelled the odour of an alcoholic beverage on Mr. Perez Mejia’s breath, this contradicts Officer Jones’s evidence that he did not smell any alcohol emanating from Mr. Perez Mejia.
69The defence maintains that I should reject Officer Anderson’s evidence that Mr. Perez Mejia had difficulty finding his driving documents. He said in examination-in-chief that Mr. Perez Mejia looked for his wallet in the glove box, but later admitted that this was incorrect.
70In addition, Officer Anderson said that Mr. Perez Mejia looked for his documents for several minutes, but the in-car camera video shows that it was approximately one minute and eight seconds. His excuse that he did not have a watch is not satisfactory. He should not have exaggerated.
71In forming his reasonable and probable grounds to arrest Mr. Perez Mejia for impaired driving Officer Anderson should have taken into account officer Jones’s remark that he did not detect any indicia of impairment or alcohol consumption, but he did not.
72The only evidence available of impaired driving was that Mr. Perez Mejia hit a pole and that he admitted to have a drunk the night before. However, this is not sufficient to form reasonable and probable grounds that his ability to drive a motor vehicle was impaired by alcohol.
Position of the Crown
73Regarding Officer Anderson’s credibility, the Crown submits that he made notes so he should be believed.
74The Crown argued that Officer Anderson had reasonable and probable grounds to arrest Mr. Perez Mejia for impaired driving because he had the odour of an alcoholic beverage on his breath, he had been in an accident and his eyes were glassy. Officer Anderson smelled the alcohol before he arrested Mr. Perez Mejia. The Crown cited R. v. Bush to support her position. In paragraph 38, Bush held:
Reasonable and probable grounds have both a subjective and an objective component. The subjective component requires the officer to have an honest belief the suspect committed the offence: R. v. Bernshaw (1994), 1995 150 (SCC), [1995] 1 S.C.R. 254 (S.C.C.) at para. 51. The officer's belief must be supported by objective facts: R. v. Berlinski, 2001 24171 (ON CA), [2001] O.J. No. 377 (Ont. C.A.) at para. 3. The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest: R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241 (S.C.C.) at p. 250.
75Bush stated further in paragraph 46 that “In the context of a breath demand the reasonable and probable grounds standard is not an onerous test:”
76Bush held that R. v. Stellato2 established that “Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road”.3
The test is “whether, objectively, there were reasonable and probable grounds to believe the suspect’s ability to drive was even slightly impaired by the consumption of alcohol:”4
Disposition
Section 8
77In addition to the above noted citations, I take into consideration that the Crown has the onus of proving that reasonable grounds existed for the breath sample demand.5 The totality of the circumstances must be considered.
78After considering all of the evidence and the totality of the circumstances, I find that I cannot rely on Officer Anderson’s evidence with regard to anything that he said that could form subjective or objective criteria on which to base reasonable and probable grounds.
79This is fatal to a finding that he had reasonable and probable grounds to arrest Mr. Perez Mejia for impaired driving because his evidence plays a major part in establishing the objective and subjective criteria that underpin his reasonable and probable grounds.
80I grant that there are objective indicia, which are not subject to the above mentioned flaws in Officer Anderson’s testimony that could form part of a constellation of factors that could support reasonable and probable grounds that Mr. Perez Mejia’s ability to drive a motor vehicle was impaired by alcohol. They are:
Mr. Perez Mejia was in an accident. This is obvious on the evidence.
Mr. Perez Mejia’s head was down on the steering wheel when Officer Anderson approached him. This is consistent with Ms. Muradofa’s evidence, which I accept.
Mr. Perez Mejia’s admission of going to a bar the night before.
81However, these factors alone would not necessarily give rise to reasonable and probable grounds that Mr. Perez Mejia’s ability to drive a motor vehicle was impaired by alcohol.
82The Bush court held at paragraph 54 that:
Whether reasonable and probable grounds exist is a fact-based exercise dependent upon all the circumstances of the case. The totality of the circumstances must be considered: (citations below)6… That an accident occurred, including the circumstances under which it occurred and the possible effects of it, must be taken into account by the officer along with the other evidence in determining whether there are reasonable and probable grounds to arrest for impaired driving. Consumption plus an unexplained accident may generate reasonable and probable grounds although that may not always be the case: (citation below)7(emphasis added)
83The three above mentioned factors that I do accept must be considered along with the totality of the circumstances facing Officer Anderson. But I find that there is nothing other than the above three factors on which I can rely, because I cannot rely on Officer Anderson’s evidence regarding the existence of any other factors that would support reasonable and probable grounds that Mr. Perez Mejia’s ability to drive a motor vehicle was impaired by alcohol.
84I cannot rely on Officer Anderson’s evidence because it was rife with, contradictions, inconsistencies, inaccuracies, exaggerations, uncertainty and forgetfulness. The following are examples of this. Some pertain directly to factors that concern his reasonable and probable grounds. Others pertain to the general lack of reliability of his evidence, which I find affects indirectly the reliability of his evidence on reasonable and probable grounds.
Regarding the odour of an alcoholic beverage on Mr. Perez Mejia’s breath
Officer Anderson testified that when he first approached Mr. Perez Mejia he detected a slight odour of an alcoholic beverage on his breath. But he also testified that this did not give him a reasonable suspicion that he was driving with alcohol in his body. This does not make sense.
After Officer Anderson spoke to Mr. Perez Mejia the first time he returned to his cruiser to perform a preliminary investigation. He did not learn anything additional while in the cruiser that added to the information that he already had regarding Mr. Perez Mejia’s ability to drive a motor vehicle. Nevertheless, he said that at this point that he decided that he was investigating a drinking and driving charge. But he did not give the basis for this decision.
Moreover, the in-car camera video shows that at 8:45 AM he told Officer Jones that he did not smell alcohol on Mr. Perez Mejia’s breath. This led him to admit that his testimony and his notes about smelling alcohol on his breath were incorrect.
Before he arrested Mr. Perez Mejia he asked a couple more questions, that augmented his reasonable and probable grounds. He said that one additional factor was that he smelled a stronger odour of an alcoholic beverage on Mr. Perez Mejia’s breath. This contradicts his evidence that he did not smell alcohol on his breath the first time that he spoke with him. Then he admitted that he could not remember if he smelled alcohol on his breath the first time that he spoke with him because it has been 1 ½ years since the incident occurred.
Moreover, he admitted that he did not remember smelling alcohol on Mr. Perez Mejia the second time that he spoke to him.
In the synopsis of the offence he incorrectly stated that both he and Officer Jones smelled an obvious odour of alcohol on Mr. Perez Mejia’s breath. Officer Jones testified that he never smelled alcohol on Mr. Perez Mejia’s breath.
He exaggerated or guessed at his evidence.
He testified that it took Mr. Perez Mejia several minutes to find his driving documents. The in-car camera video revealed that it was only one minute. His reason for the discrepancy was that he did not have a watch. It is obvious that he made an incorrect guess on an important factor.
In examination-in-chief, he stated that he asked Mr. Perez Mejia more than once for his ownership and insurance documents. In cross-examination, he admitted that this was not accurate because the in-car camera shows that he only asked him one time.
Other inaccuracies in Officer Anderson’s evidence:
He made a mistake regarding the time of arrest.
He testified that after Mr. Perez Mejia was in the police cruiser he (Officer Anderson) got out of the cruiser and Officer Jones stayed in the cruiser with Mr. Perez Mejia. But the in-car camera video shows that both officers got out and went to Mr. Perez Mejia’s truck to look inside of it.
Forgetfulness:
Officer Anderson said that he did not recall speaking to Mr. Perez Mejia en route to the police station. The in-car camera video shows that he spoke to him about his lawyer. This is an important matter; one that he should have noted in his note book.
85As a result of the dubious quality of Officer Anderson’s evidence with regard to his reasonable and probable grounds to believe that that Mr. Perez Mejia’s ability to drive a motor vehicle was impaired by alcohol, I find it difficult to understand how he could have had even a subjective belief of this.
86Moreover, I find that problematic quality of Officer Anderson’s evidence robs it of any objective basis to support reasonable and probable grounds to believe that Mr. Perez Mejia’s ability to drive a motor vehicle was impaired by alcohol.
87Since I do not accept Officer Anderson’s evidence with regard to his reasonable and probable grounds to believe that Mr. Perez Mejia’s ability to operate a motor vehicle was impaired by alcohol, and that there is no other evidence on which to base reasonable and probable grounds, I find that the Crown did not discharge its onus of proving this.
88Consequently, his arrest of Mr. Perez Mejia for impaired driving was unlawful. As a result, the breath demand was unlawful, as was the taking of the breath samples. Accordingly, I find that the police breached Mr. Perez Mejia’s rights under s. 8 of the Charter.
Section 9
The position of the defence
89The defence argued that the police breached Mr. Perez Mejia’s rights under s. 9 from the time that they were no longer screening him for a drinking and driving offence.
90I am not sure, but I presume that defence counsel means that since the police did not have reasonable and probable grounds to arrest Mr. Perez Mejia for impaired driving they breached his rights under s. 9 by arresting and detaining him when they were finished their preliminary investigation into whether they should arrest him for impaired driving.
The position of the Crown
91The Crown argued that the initial detention of Mr. Perez Mejia was pursuant to a Highway Traffic Act investigation. When the investigation turned to a drinking and driving investigation the police told him so and gave him his rights to counsel.
92I infer from this that the Crown’s submission is that the police rightly detained Mr. Perez Mejia first, under the Highway Traffic Act, and then under the Criminal Code according to the offence that they were investigating.
Disposition
Was there a detention?
93Officer Anderson testified that when he first spoke to Mr. Perez Mejia although he smelled the odour of an alcoholic beverage on his breath he could not form a reasonable suspicion that he had alcohol in his body. He wanted to give him the benefit of the doubt. But Mr. Perez Mejia was not free to leave while he continued his investigation under the Highway Traffic Act. I find as a fact that Mr. Perez Mejia remained detained from that point on.
94Although it is a mystery to me how after supposedly smelling the odour of an alcoholic beverage on Mr. Perez Mejia’s breath Officer Anderson could not have a reasonable suspicion that he had alcohol in his body, it appears that the officer detained him first for the purpose of an investigation under the Highway Traffic Act. Then, as found above, while he was in the cruiser doing background checks on Mr. Perez Mejia he decided that it was a drinking and driving investigation without having obtained any further information regarding drinking and driving. I find as a fact that at this point Officer Anderson was detaining Mr. Perez Mejia for a drinking and driving investigation.
Was the detention arbitrary?
95Section 9 of the Charter states that “Everyone has the right not to be arbitrarily detained or imprisoned”.
96R. v. Cayer 8 held that an arbitrary detention is one that is “capricious, despotic or unjustifiable”.
97I find that Officer Anderson’s detention of Mr. Perez Mejia was not “capricious, despotic or unjustifiable”. At first, he was performing an investigation under the Highway Traffic Act as a result of an accident in which Mr. Perez Mejia was involved. Next, he commenced detaining him for a drinking and driving offence under the Criminal Code. Officer Anderson did not act in a “capricious, despotic or unjustifiable” manner in these regards.
98Therefore, I find that the police did not breach Mr. Perez Mejia’s rights under s. 9 of the Charter.
Section 10 (a)
The position of the defence
99The defence argues that Officer Anderson had the duty under s. 10 (a) to inform Mr. Perez Mejia when the investigation had changed from one under the Highway Traffic Act to one for a drinking and driving offence.
The position of the Crown
100The Crown argues that the circumstances were sufficient to indicate to Mr. Perez Mejia why he was being investigated by the police.
Disposition
101Section 10 (a) of the Charter states that “Everyone has the right on arrest or detention to be informed promptly of the reasons therefor”.
102In R. v. Nguyen9 the court dealt with the nature of s. 10 (a) and what the police are required to do to fulfil this right.
103The Nguyen Court held that:
The right to be informed of the reasons for detention as enshrined in the Charter … is a codification of the common law described most famously in the case of Christie v. Leachinsky, [1947] A.C. 573 (U.K. H.L.). … a person is entitled to be informed of the reason why he or she is being restrained, unless the circumstances are such that he or she knows why. The reasons do not need to be expressed in technical or precise language, but must, in substance, inform the person as to the reason why the restraint is being imposed.10
104Nguyen held further that “Canadian jurisprudence has since generally affirmed that s. 10 (a) of the Charter captures that common law definition”.
105The evidence in the case at bar is that Officer Anderson approached Mr. Perez Mejia’s vehicle because he was investigating a traffic accident. He asked him whether he was aware that he had been in an accident. As they spoke, the officer smelled the odour of an alcoholic beverage on his breath. He said that in spite of this he did not form a reasonable suspicion that Mr. Perez Mejia had alcohol in his body. He did not say anything to Mr. Perez Mejia about a drinking and driving investigation because he was not conducting one.
106I find that at this point Officer Anderson made it clear to Mr. Perez Mejia that he was investigating a traffic accident. I find that his detention at this point was solely for that purpose.
107Later, while in the car doing background checks on Mr. Perez Mejia, for no apparent reason Officer Anderson decided that he was investigating a drinking and driving offence. I find that at that point the reason for Mr. Perez Mejia’s detention changed from a Highway Traffic Act investigation to a Criminal Code drinking and driving investigation.
108After he decided this, Officer Anderson remained in the cruiser working on his computer to check the validity of Mr. Perez Mejia’s driver’s license, and his background on CPIC. He could not remember how long this took. He did not have notes or a recollection of what time he made the decision that he was investigating a drinking and driving offence, either.
109Officer Anderson conceded that he could have gotten out of his cruiser at this time to tell Mr. Perez Mejia that he was under arrest, but he wanted to determine if his driver’s license was valid.
110Officer Anderson did not say what time he returned to speak to Mr. Perez Mejia. Therefore, it is impossible to ascertain how long he waited from the time that he decided that he was investigating a drinking and driving offence to when he left his cruiser to go speak with Mr. Perez Mejia about it.
111Officer Anderson said that when he returned to speak with Mr. Perez Mejia he had not yet decided to arrest him. He did not have reasonable and probable grounds to arrest him when he returned to his cruiser. Nor did he learn anything while he was in the cruiser that would have given him reasonable and probable grounds to arrest him.
112So he asked a couple more questions, which augmented his reasonable and probable grounds. Although he did not specify what questions he asked, it is reasonable to presume that in this context they had to do with drinking and driving. At this point Mr. Perez Mejia must have realized that he was being detained for a drinking and driving investigation. I find that this was sufficient to comply with s. 10 (a).
113I find that although once he decided that he was investigating Mr. Perez Mejia for a drinking and driving offence Officer Anderson could have immediately gone to tell this to Mr. Perez Mejia, he did not have to immediately cease his investigation in the cruiser to do this.
114He was engaged in a valid process of obtaining relevant information about Mr. Perez Mejia that would further both the Highway Traffic Act and the Criminal Code investigations. There is no evidence that he waited an inordinate amount of time before returning to speak to Mr. Perez Mejia at which time he asked him questions that related to drinking and driving, thus putting him on notice that he was being investigated for that purpose also.
115In R. v. Mackenzie11, a summary appeal decision, the court dealt with the issue of promptly informing a detainee of the reasons for the detention, pursuant to s. 10 (a) of the Charter. Mackenzie involved an investigation for traffic offences and for an offence of drinking and driving.
116Gates J. observed that “The Alberta Court of Appeal noted in R. v. Townsend, 2008 ABCA 44 (Alta. C.A.) at para 19, that the "investigation of one offence may lead to the investigation of another. It is unrealistic to think that police officers who stop vehicles for traffic offences are not also alert to the possibility that the driver may be involved in other offences." This scenario is the same as the one in the case at bar.
117After examining the “promptly” issue, Gates J. concluded that “Considering the plain meaning of the word "prompt", in my view, s.10 (a) of the Charter affords everyone the right to be informed of the reasons for their detention without undue delay”.
118The defence cited R. v. Evans12 in support of its argument that Officer Anderson breached Mr. Perez Mejia’s rights to be promptly informed of the reason for his detention. However, I find that Evans is distinguishable on the facts. See paragraphs 54, 55 of the decision.
119In R. v. Roberts13 the Ontario Court of Appeal pointed out that “Breaches of s. 10(a) can be "temporal" or "informational". A temporal breach occurs if an arrested or detained person is not promptly informed of the reasons for their detention. An "informational" breach arises if the reasons for their detention are not adequately communicated”.
120I find that in the case before me, Officer Anderson complied with the temporal and informational requirements of s. 10 (a) of the Charter regarding the Highway Traffic Act investigation.
121When he detained Mr. Perez Mejia, he had just questioned him about being involved in an accident. This signalled clearly to Mr. Perez Mejia that Officer Anderson was investigating a motor vehicle accident. This is supported by the fact that he asked the officer if he could get out of his truck to look at the pole that he hit.
122After this initial encounter, Officer Anderson returned to his cruiser to do the customary background checks regarding Mr. Perez Mejia on his computer. It was during this time that he decided that in addition to a Highway Traffic Act investigation, he was conducting an investigation of a drinking and driving offence.
123I find that at this point Mr. Perez Mejia’s detention amplified from being detained for a Highway Traffic Act investigation to being also detained for a drinking and driving offence. However, there is no evidence that Officer Anderson delayed unduly in returning to Mr. Perez Mejia to ask him questions about a possible drinking and driving offence.
124I do not think that Officer Anderson was obligated to interrupt his normal background checks to go tell Mr. Perez Mejia that he was now detained for investigation of a drinking and driving offence and then return to his background checks. These checks were not going to take a long time.
125Officer Anderson testified that before he arrested Mr. Perez Mejia for impaired driving he asked a couple more questions, which augmented his reasonable and probable grounds. As stated above, although there is no evidence regarding what specific questions he asked, or what he said to him, it is reasonable to infer from the circumstances that it had to do with drinking and driving. I find that this put Mr. Perez Mejia on notice that Officer Anderson was investigating a drinking and driving offence.
126Therefore, I find that Officer Anderson complied with both the temporal and informational requirements of s. 10 (a) regarding both the Highway Traffic Act and the Criminal Code investigations.
S. 10 (b)
The position of the defence
127The defence submits that Officer Anderson breached Mr. Perez Mejia’s rights to counsel prior to arrest when he returned to the cruiser to do his back ground checks without having given him his rights to counsel.
128He cited R. v. Orbanski; R. v. Elias14 in support of his argument. In these cases the police engaged the accused in roadside sobriety tests and Approved Screening Device breath tests. The court stated at paragraphs 56 and 57 that the police may use such strategies to assess the level of impairment of drivers and that the suspension of the operation of s. 10 (b) is justified. This case is distinguishable from the case at bar. It does not help me to decide whether Officer Anderson breached Mr. Perez Mejia’s rights to counsel.
The position of the Crown
129The Crown argues that on the facts “there was no breach of the applicant’s rights to counsel. His rights to counsel were initially suspended during the roadside investigation. The applicant was then arrested, his rights to counsel were provided to him in a timely manner and access to counsel was facilitated at the first reasonable opportunity.”15
Disposition
130I find that Officer Anderson did not breach Mr. Perez Mejia’s rights to counsel during the time that he was in the cruiser doing background checks on him. These were the normal checks that the police are entitled to do without giving the rights to counsel when investigating a Highway Traffic Act case.
131However, I do find that he breached his rights to counsel by refusing to allow him to call his lawyer at the roadside. Mr. Perez Mejia told Officer Anderson that he wanted to call a lawyer and that he had his lawyer’s telephone number in his cell phone, which he had with him. Notwithstanding, Officer Anderson told him to wait until they got back to the police station.
132Officer Anderson gave various reasons why he did not allow Mr. Perez Mejia to call his lawyer at the roadside. He said that he would not have known who he was calling. But as observed by Parry J. in R. v. Mitchell16 the officer could have verified that Mr. Perez Mejia called his lawyer before letting him speak on the phone to the lawyer.
133Officer Anderson said that there would not have been enough privacy for Mr. Perez Mejia to speak to his lawyer because there was a microphone in the cruiser. But he conceded that he could have turned off the microphone.
134Next, he said that Officer Jones was in the cruiser with Mr. Perez Mejia. However, at 8:51 AM both officers left the cruiser to go look in Mr. Perez Mejia’s truck.
135Finally, Officer Anderson said that he had not done a pat down search of Mr. Perez Mejia and he did not want to leave him alone. This could have been remedied by doing a pat down search at the roadside as is often done. In addition, there is no evidence to support that it would have been risky to leave Mr. Perez Mejia alone in the cruiser speaking with his lawyer. He was cooperative and presented no danger to himself or others. And as noted above, the evidence is that they did leave him alone in the cruiser for approximately 21 minutes while they searched his truck and dealt with Traffic Services.
136In R. v. Shabir17, Paciocco J. (as he then was) found that “it is reasonable for an officer to take steps to facilitate a detainee’s right to counsel when it is apparent there will be time to do so”. I find that in the case at bar there was plenty of time to have allowed Mr. Perez Mejia to call his lawyer while seated in the police cruiser. There is no evidence that this would not have been feasible. The police are obliged to “provide access to counsel at the earliest practical opportunity”.18
137In addition to arguing that the police breached Mr. Perez Mejia’s rights to counsel at the roadside, the defence argued that the police should have provided Mr. Perez Mejia an opportunity to consult counsel while they were in the sally port waiting to be admitted into the booking in area of the police station.
138I am not persuaded by this argument. They were in the sally port for only ten minutes. They were not sure when they would be called into the booking area. This evidence demonstrates that it would not have been practical to allow Mr. Perez Mejia to call his lawyer then.
139Nor am I persuaded that there were any undue delays in allowing Mr. Perez Mejia to contact and speak with counsel while in the police station.
Summary of breaches of Mr. Perez Mejia’s rights under the Charter
140I find that the police breached Mr. Perez Mejia’s rights under ss. 8, 10 (b).
S. 24 (2)
The position of the defence
141The defence argued that the breaches of Mr. Perez Mejia’s rights under the Charter were serious and they impacted significantly Mr. Perez Mejia’s Charter protected interests. As a result, the evidence of the breath readings should be excluded. Of course, the defence made this submission based on its belief that the police breached Mr. Perez Mejia’s rights under ss. 8, 9, 10 (a) and 10 (b). However, I will consider the defence submissions as they apply to the Charter breaches that I have found.
The position of the Crown
142The Crown argues that if there were any Charter breaches they were not egregious. The taking of breath samples is not an intrusive procedure. There is a high interest in society to see drinking and driving cases adjudicated on their merits.
143In R. v. Grant19, the court held that,
1When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. (para. 71)
Seriousness of the Charter-Infringing State Conduct (Grant, paras. 72- 75)
144This factor requires the court,
2to assess whether the admission of the evidence would bring the administration of justice into disrepute…The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.
145The court must evaluate,
the seriousness of the state conduct that led to the breach. …The main concern is to preserve public confidence in the rule of law and its processes. In order to determine the effect of admission of the evidence on public confidence in the justice system, the court…must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter.
Impact on the Charter-Protected Interests of the Accused (Grant, paras. 76-78)
146The court stated that “This inquiry focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed”.
147Grant directed that “we look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests”.
Society's Interest in an Adjudication on the Merits (Grant, paras. 79-86)
148The court held that,
3Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry reflects society's "collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law"…a judge on a s. 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence.
149The “public interest in truth-finding remains a relevant consideration under the s. 24(2) analysis. The reliability of the evidence is an important factor in this line of inquiry”.
150The court stated that “The fact that the evidence obtained in breach of the Charter may facilitate the discovery of the truth and the adjudication of a case on its merits must…be weighed against factors pointing to exclusion, in order to "balance the interests of truth with the integrity of the justice system": (citations omitted)
151In addition, “The importance of the evidence to the prosecution's case is another factor that may be considered in this line of inquiry… The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution”.
152With regard to Charter breaches involving breath samples, Grant said at paragraph 111 that,
where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted. For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive.
153I find that in the case at bar the evidence in question is highly reliable and without it the Crown’s case falls. Society’s interest in “truth-finding” plays an important role in the case at bar.
154Finally, Grant held that “Having made these inquiries, which encapsulate consideration of "all the circumstances" of the case, the judge must then determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute.
155Regarding how to balance these three factors, the court directed that “In all cases, it is the task of the trial judge to weigh the various indications. No overarching rule governs how the balance is to be struck”.
Disposition
The first factor: the seriousness of the Charter-infringing state conduct
156I find that the breach of s. 8 was serious because Officer Anderson showed a significant maladroitness and carelessness in documenting his investigation and in recounting his investigation in the witness stand.
157In addition to this, in his testimony about his compliance with the Charter he exaggerated his evidence and guessed incorrectly. He also stated erroneously in the synopsis for the offence that both he and Officer Jones smelled alcohol on Mr. Perez Mejia’s breath.
158All of this indicates to me that he was careless and thoughtless throughout his investigation with regard to Mr. Perez Mejia’s Charter rights, and in much of his testimony.
159I find his reasons baffling for arresting Mr. Perez Mejia for impaired driving.
160His reasons for not allowing Mr. Perez Mejia to call his lawyer at the roadside contradicted other parts of his testimony. I find that they were completely without merit.
161I find that Officer Anderson demonstrated a serious lack of diligence in conducting his investigation. He exacerbated this by giving contradictory and incorrect testimony. He also guessed and exaggerated in his testimony.
162The fact that he continued his careless manner of dealing with Mr. Perez Mejia’s Charter protected interests by testifying in the unsatisfactory way that I have found, is in a sense a continuation of the Charter breaches and is highly objectionable.
163For these reasons I find that the breaches of s. 8, and 10 (b) were serious.
164Consequently, I find that the court has to dissociate itself from this conduct. This factor favours exclusion of the evidence.
The second factor: the impact on the Charter-protected interests of the accused
165I find that Officer Anderson’s conduct seriously impacted Mr. Perez Mejia’s Charter-protected rights to not be arrested without reasonable and probable grounds, and to be allowed to consult with counsel once arrested.
166The Crown referred me to R. v. Rehill20 where Campbell J. of the Ontario Superior Court held that:
… more recently, in R. v. Grant, the leading judgment of the Supreme Court of Canada interpreting the governing principles under s. 24(2) of the Charter, McLachlin C.J.C. and Charron J., writing for the majority of the court, at para. 111, described the collection of breath sample evidence in drinking and driving cases as a "relatively non-intrusive" procedure, suggesting that the gathering of such evidence has a slight impact upon the Charter-protected interests of the accused [emphasis added]. Accordingly, the second factor in the s. 24(2) analysis will usually favour the admission of the evidence of the results of such breath samples ... (citations below21) …. Indeed, in R. v. Grant, at para. 111, the Supreme Court generalized that in the absence of some egregious, deliberately inflicted Charter violation, with a "high" impact upon the accused's privacy, bodily integrity and dignity, reliable breath sample evidence will "often" be admitted under s. 24(2) of the Charter, given that the "method of collection is relatively non-intrusive."
167In the case at bar, especially for the reasons that I have given regarding the way that Officer Anderson conducted the investigation, I find that the breaches of Mr. Perez Mejia’s Charter rights seriously undermined the rights that they are designed to protect. Citizens rightfully expect not to be arrested for serious crimes without reasonable and probable grounds, and not to be denied the right to counsel when arrested. Therefore, this factor favours exclusion of the evidence.
The third factor: society's interest in the adjudication of cases on their merits
168The evidence of the breath tests is highly reliable evidence. Without it, the Crown’s case on the over 80 charge fails. Grant commented that the method of taking breath samples is “relatively non-intrusive”.
169The Crown argued that drinking and driving is a “persistent and serious societal concern”. This heightens society’s interest in having these cases decided on their merits.
170There is no doubt that many members of society are seriously harmed or killed every year due to drinking and driving. It is not difficult to understand why society wants drinking and driving offences to be decided on their merits, rather than on violations of the accused’s rights under the Charter.
171However, apropos this argument, in paragraph 84 Grant stated that:
… while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.
172In the same paragraph, the court pointed out that “Lamer J. observed in Collins, "[t]he Charter is designed to protect the accused from the majority, so the enforcement of the Charter must not be left to that majority" (p. 282).
Disposition
173After balancing the three factors I find that in spite of the fact that the evidence is highly reliable and that without it the Crown’s case fails, and that society expects cases to be adjudicated on their merits, the evidence of the breath tests must be excluded.
174As much as society expects that cases be decided on their merits, it also expects that when police officers exercise their formidable power over citizens that they do it in a mindful, competent manner. The public expects that the police take care to record their investigation diligently. And that they refrain from guessing, exaggerating and giving incorrect and contradictory evidence against the accused.
175This type of behaviour demonstrates a concerning carelessness about honouring the rights enshrined in the Charter. It seriously compromises the integrity of the investigative function of the police and the citizenry’s rights under the Charter, and the court’s ability to adjudicate cases on their merits.
176The court’s ability to produce clear results is hampered when it is forced to wade through evidence filled with inaccuracies, contradictions, exaggerations, and inconsistencies. Clear and comprehensible adjudication of Charter cases is intrinsically tied to society’s rights under the Charter. Efficacious adjudication of alleged Charter breaches is the last bastion in the defence of the rights accorded to society by the Charter.
177In addition to distancing itself from unacceptable breaches of a citizen’s rights under the Charter, the court must distance itself from behaviour that adversely affects the process of adjudicating alleged breaches of these rights on the merits of the case.
178Therefore, after balancing the three factors I find that the administration of justice is better served in the case at bar by the exclusion of the evidence of the breath tests, rather than by their inclusion into evidence.
Did the police administer the breath tests as soon as practicable?
179In the event that I have erred in my findings regarding the Charter issues, I will address the issue of whether the police administered the breath tests as soon as practicable.
180Section 258 (1) (c) (ii) requires that each breath sample be 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, with an interval of at least fifteen minutes between the times when the samples were taken …”
181I note that counsel did not make argument with regard to the retrospectively of the new section of the Criminal Code (s. 320.28 (1)) that came into force on December 18, 2018. This section deals with the “as soon as practicable” requirement. It states:
“If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person's ability to operate it was impaired to any degree by alcohol or has committed an offense under paragraph 320.14 (1) (b) [new offence of “has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood”], the peace officer may, by demand made as soon as practicable, (information in brackets is added by me)
(a) require the person to provide, as soon as practicable,
(i) the samples of breath that, in a qualified technician's opinion, are necessary to enable a proper analysis to be made by means of an approved instrument, …
182Since counsel did not address this issue, it would not be appropriate for me to address it either. In any case, both the old section in the new section maintain the “as soon as practicable” requirement. Therefore, with regard to “as soon as practicable”, it does not appear that much would turn on whether the section is retrospective or not.
183The defence complains about what it says is a 46 minute delay that was not reasonable. This delay consists of the following periods of time:
Between 8:40 AM and 8:48 AM. This occurred after the paramedics finished examining Mr. Perez Mejia and Officer Anderson returned to the cruiser. I find that the officer’s evidence that he was doing background checks on Mr. Perez Mejia was a reasonable use of time.
Between 8:53 AM and 9:12 AM. The defence argued that the officers should have left the scene at 8:53 AM. However, the evidence is that at:
8:53 AM – Officer Anderson tells Mr. Perez Mejia that he has his wallet and cell phone.
8:56 AM – Officer Jones speaks with Traffic Services.
8:57 AM – A Traffic Services officer arrives on scene to investigate the accident.
9:05 AM – Officer Jones tells Officer Anderson that someone should speak with the witness.
9:12 AM – Officer Anderson gives the keys to the truck to the Traffic Services officer. Next, he advises dispatch that he is going to take Mr. Perez Mejia to the police station. He leaves the scene with Mr. Perez Mejia. Officer Jones drives the car while Officer Anderson continues inputting information into the computer. They go directly to the closest station with a qualified breath technician.
184I find that these activities were reasonable in the circumstances.
- The 10 minute delay in the sally port.
The officers explained that they had to wait to be called in to the booking area before they could enter the station.
The fact that they did not know what was going on in the booking area that caused this delay does not run afoul of the “as soon as practicable” requirement. They testified that they often have to wait in the sally port for the booking area to be cleared. This makes sense. There are many accused persons that are processed daily through police stations in Toronto. It is not unusual that the booking in area is occupied when officers arrive with a newly arrested person.
I find support for this finding in Code J.’s remarks in R. v. Furlong22 where regarding an 11 minute delay in the sally port he stated:
The officers were simply waiting their turn in the booking process and there was no requirement to call the booking sergeant to explain precisely why they were waiting at this time on this particular night. This is the kind of "detailed explanation" or "exact accounting" that the Court held to be unnecessary in Vanderbruggen.
- The nine minute delay between the completion of the parading of Mr. Perez Mejia and when they gave him the phone to speak to his lawyer. The defence objects to the officers taking off their coats and organizing themselves in the station to continue to do their work on the case.
I find that this delay was reasonable in all of the circumstances. One cannot fault the officers for taking off their coats and organizing themselves to do their work after an accused is paraded. The nine minutes that this took is a reasonable amount of time in which to do this and to also contact counsel.
185I grant that there is no evidence regarding the specific timeframe during which Mr. Perez Mejia spoke to his lawyer in the police station. However, the evidence is that he spoke to his lawyer sometime between 9:39 AM and 9:48 AM. Then they took him to the breath room.
186In case it is the new section that governs this trial, I find that it is reasonable that the case law decided under the old section would apply since both sections use the same words.
187R. v. Vanderbruggen23 held that “as soon as practicable” “means nothing more than that the tests were taken within a reasonably prompt time under the circumstances”. Further, “There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably”.24
188Vanderbruggen tells us that “ In deciding whether the tests were taken as soon as practicable, 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”.25
189After considering the defence arguments, I find that there are no significant gaps in time that would run afoul of the “as soon as practicable” requirement.
190Consequently, I find that the Crown proved beyond a reasonable doubt that the breath tests were taken as soon as practicable.
Was Mr. Perez Mejia’s ability to drive a motor vehicle impaired by alcohol?
191In R. v. Stellato26 the court held that “If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out."
192Mr. Perez Mejia’s BAC readings were 110 and 130 milligrams of alcohol in 100 millilitres of blood.
193Based on all of the circumstances, Officer Sanders’s opinion was that Mr. Perez Mejia’s ability to drive a motor vehicle was impaired by alcohol. However, he was not qualified as an expert in the effects of alcohol on a person’s ability to operate a motor vehicle. In addition, all of his observations of Mr. Perez Mejia occurred well after he was driving. There is no basis in his evidence on which I could infer that his opinion would apply to the time of driving.
194The Crown introduced a toxicology report on consent pursuant to s. 657.3 (1) of the Criminal Code. Ms. Tse, a forensic toxicologist, wrote the report. She states that based on Mr. Perez Mejia’s readings his ability to drive a motor vehicle would be impaired. Ms. Tse did not testify.
195Ms. Tse’s curriculum vitae shows that she has a Master of Science in applied bioscience (2010), a post-graduate certificate in forensic toxicology (2004), and a B.Sc. in toxicology (2001).
196Her curriculum vitae shows that she has much training, education and experience in matters involving the effects of alcohol and drugs on the human body. However, I noticed that her curriculum vitae does not list much experience specifically with drinking alcohol and driving.
197She states on page one of her “Statement Of Qualifications” under the heading Training and Experience that she has engaged in “Research, teaching duties, and experience in the pharmacological and toxicological effects of alcohol, drugs, and poisons on the central nervous system”. Further, she lists “Pharmacological and toxicological effects of alcohol and drugs on the human body”.
198Her training, education and experience may tangentially touch on the subject of the effects of alcohol on a person’s ability to drive a motor vehicle, but it is not clear to me from her curriculum vitae that she has much experience in this specific area.
199In paragraph four of her affidavit made pursuant to s. 673.3 of the Criminal Code, that she states that she has been “duly qualified as an expert in the absorption, distribution and elimination of alcohol in the human body, the effects of alcohol in the operation of the Intoxilyzer 8000C instrument and the approved screening device”.
200She does not state who qualified her as an expert. Furthermore, this paragraph says nothing about driving under the influence of alcohol.
201In her report, she states that she considered the following facts as a basis of her opinion in this matter:
An accident at or between approximately 8:30 AM and 8:33 AM.
Intoxilyzer readings of 135 and 111 mg of alcohol in 100 mL of blood obtained at approximately 10:19 AM and 10:42 AM, respectively.
202Next, she makes a general statement about the sensory, motor and intellectual faculties involved in driving a motor vehicle. She concludes that “based on a critical review of the relevant scientific literature (laboratory, closed-course driving, crash risk assessment) it is my opinion that impairment with respect to driving become significant at BAC of 50 mg/100mL and increases from then onward)”.
203She further states that “in my scientific opinion, an individual would be impaired in their ability to operate a motor vehicle at the detected blood alcohol concentrations”.
204I find myself in a similar position as did Schreck J. (as he then was) in R. v. Stennett.27 After considering a toxicologists report with regard to a charge of impaired driving Schreck J. stated that in his view, “her assertion, based on unidentified scientific literature”, is insufficient to make out the charge”.
205I grant that in Stennett the court could not make a finding with regard to the accused BAC. However, I do not think that this distinction affects the relevance of the court’s view on the quality of the toxicologist’s report in the case at bar. I note that as in Stennett, the scientific literature on which Ms. Tse relied is not identified.
206I find that for the above reasons that it would be unsafe to rely on Ms. Tse’s report.
207With regard to other evidence that Mr. Perez Mejia’s ability to drive a motor vehicle was impaired by alcohol I considered the following:
Mr. Perez Mejia was involved in an accident, immediately after which Ms. Muradofa found him sleeping at the wheel. She had trouble reviving him. He responded to her calls by telling her that he was okay and then put his head back down onto the steering wheel. However, I find that this behaviour could also be accounted for by the fact that he had just been in an accident. It does not necessarily point to his ability to drive a motor vehicle being impaired by alcohol.
Officer Anderson testified that Mr. Perez Mejia was not aware that he was in an accident. Given my findings regarding the lack of reliability of Officer Anderson’s evidence, I am doubtful about this evidence.
Mr. Perez Mejia located without a significant amount of difficulty all of the driving documents that Officer Anderson requested.
Officer Anderson testified that Mr. Perez Mejia’s eyes were red and glassy. Officer Sanders added that they were watery in the breath room.
Mr. Perez Mejia told Officer Anderson that he was sleepy because he had gone to a bar the night before and had spent the night in a building in which she was the caretaker rather than going home.
208I observed Mr. Perez Mejia’s behaviour in the booking in and breath room videos that the Crown introduced as evidence. I did not notice any behaviour on his part that would indicate that his ability to drive a motor vehicle was impaired by alcohol.
Disposition
209After considering all the circumstances I find that the Crown did not prove beyond a reasonable doubt that Mr. Perez Mejia’s ability to drive a motor vehicle was impaired by alcohol. Consequently, I find him not guilty. The charge is dismissed.
Released: March 8, 2019
Signed: Justice J.W. Bovard
Footnotes
- Although Ms. Muradofa did not identify the driver as being Mr. Perez Mejia, the defence admits identity, so for the purpose of Ms. Muradofa’s evidence I will refer to the driver as being Mr. Perez Mejia.
- 1993 3375 (ON CA), 12 O.R. (3d) 90 (C.A.)
- Para. 47
- Para. 48
- R. v. Bush, 2010 ONCA 554, para. 13
- See Shepherd at para. 21; R. v. Rhyason, 2007 SCC 39 (S.C.C.); R. v. Elvikis, [1997] O.J. No. 234 (Ont. Gen. Div.) at para. 26; Censoni at para. 47.
- Rhyason, supra at para. 19.
- 1988 9879 (ON CA), [1988] O.J. No. 1120 (C.A.), para. 38
- 2008 ONCA 49
- Para. 16
- 2014 ABQB 44, paras. 42 - 46
- [2015] O.J. No. 2907
- 2018 ONCA 411, para. 63
- 2005 SCC 37, paras. 56, 57
- Factum, para. 13
- 2018 ONCJ 121, para.31
- [2016] O.J. No. 6968, para. 40
- R. v. Taylor, 2014 SCC 50, para. 32
- 2009 SCC 32, [2009] S.C.J. No. 32
- 2015 ONSC 6025, para. 36
- R. v. Taylor, 2010 ONSC 4850, 1 M.V.R. (6th) 103, at para. 44, leave denied, 2011 ONCA 681, [2011] O.J. No. 4838; R. v. McDowell, 2012 ONSC 7028, 40 M.V.R. (6th) 317, at paras. 50-54.
- 2011 ONSC 6707, para. 13
- 2006 9039 (ON CA), [2006] O.J. No. 1138, para.12
- Para. 12
- Ibid., para. 13
- 1993 3375 (ON CA), 12 O.R. (3d) 90 @ 49, 95 (O.C.A.)
- 2016 ONCJ 288 para. 35