Ontario Court of Justice
Between:
Her Majesty the Queen
— AND —
John Phillip Benoit
Before: Justice David A. Fairgrieve
Heard on: June 3 and 4, 2019
Reasons for Judgment released on: June 20, 2019
Counsel:
- Samuel Walker, for the Crown
- G.J. Partington, for the defendant
FAIRGRIEVE J.:
Introduction and Overview
1John Benoit is charged with impaired driving and over 80 under the Criminal Code, as well as driving while suspended under the Highway Traffic Act, offences allegedly committed by him in Scarborough at around 2:00 a.m. on October 6, 2017.
2A week prior to trial, an amended Charter application was filed by the defence seeking, under s. 24(2), the exclusion of the Intoxilyzer breath test results that had been obtained. The application did not include any supporting material or legal argument and can, I think, be regarded largely as boilerplate. Moreover, during the course of his submissions, Mr. Partington abandoned parts of his application and stated that he was pursuing only the claims that the arresting officer had infringed his client's rights guaranteed by ss. 8, 9 and 10(b) of the Charter. Specifically, he argued that an arbitrary detention occurred when P.C. Crocker stopped the vehicle being driven by the defendant, that the subsequent arrest and approved instrument breath demand were made in the absence of the requisite reasonable and probable grounds, and that Mr. Benoit's right to counsel was violated when the breath tests were administered after consultation only with duty counsel, rather than the defendant's counsel of choice.
3I think it fair to observe at the outset that Mr. Walker, on behalf of the Crown, filed a careful response to the issues apparently raised by the Charter application and provided a helpful casebook that included appellate decisions relevant to those issues.
4The trial proceeded as a so-called blended hearing on June 3 and 4, 2019, with a single day of evidence, followed by a full day of submissions.
5At the commencement of the trial, the Crown filed as Ex. 1, on consent, the Ministry of Transportation documents relating to the suspension of Mr. Benoit's driver's licence that started in 1992 for an unpaid fine. The suspension was still in effect on October 6, 2017. It was not disputed that, as disclosed by the attachments to the certificate of suspension, the defendant was notified of this suspension by the York Regional Police in 1993, the Peel Regional Police in 2004, and the Toronto Police in 2005 and 2009. During the course of his later submissions, Mr. Partington agreed that the Charter application did not have any bearing on the evidence in relation to the Highway Traffic Act charge and that the drive under suspension charge had been proved beyond a reasonable doubt. I accept that concession by defence counsel.
6In relation to the Criminal Code charges, the Crown's case consisted almost entirely of the evidence of P.C. Jason Crocker, the officer who arrested the defendant and made the now impugned s. 254(3) approved instrument breath demand. During the officer's evidence, video and audio recordings were played that had been obtained from the camera system inside the police car at the scene of the arrest, then the defendant's entry from the sallyport into the police station at 41 Division, then the booking process before Sgt. Hansard, and finally a brief excerpt from the start of Mr. Benoit's dealings in the breath room. Mr. Walker filed the certificate of analysis as an exhibit, without objection, and called the qualified technician, P.C. Shaun McConnell, to supplement the contents of his certificate with oral testimony concerning the current requirements permitting reliance by the Crown on the so-called presumption of accuracy. It might be noted that Mr. Partington did not challenge any of the evidence relating to the Intoxilyzer breath tests that were conducted. He limited his submissions concerning the use that could be made of the Intoxilyzer results to reliance on a single decision, R. v. Shaikh, 2019 ONCJ 157, although there are now many Ontario Court judgments that have declined to follow it.
7Mr. Benoit gave evidence himself only with respect to the notional voir dire concerning the Charter application, and not on the trial proper. Mr. Partington stated that the defence was calling no evidence on the trial itself.
8The submissions by both counsel, then, focused primarily on the Charter complaints, but also of course included argument as to the ultimate question of whether, if the Intoxilyzer results were excluded because of a constitutional violation, either one of the Criminal Code drinking and driving charges - which must be considered separately - had been proved beyond a reasonable doubt by the evidence that had been admitted.
9At this point, I think it should be observed that the recordings produced by the police during the investigation and identified by P.C. Crocker when he testified are important parts of the evidence, both on the Charter application and the trial proper, even if their contents might not be fully reflected in the record of the trial proceedings that would be produced by a transcriptionist. Transcriptionists are not expected to interpret or record what is seen or heard in the courtroom when such recordings are played, particularly since there is often a dispute as to precisely what the video or audio shows and what its evidentiary significance might be.
10In relation to the Charter application, the recordings made by the police camera and audio systems, first in the cruiser and then later at the station, provide evidence as to the nature of the defendant's interactions with P.C. Crocker and the other officers with whom he had dealings. The recording from the roadside assists in assessing the grounds P.C. Crocker testified he relied on in making the arrest and breath demand. Similarly, the recordings are helpful in understanding at least part of the chronology of what was said or done concerning the exercise of the defendant's s. 10(b) right to counsel.
11On the trial proper, both counsel made reference to the recordings during their submissions. Mr. Partington argued that Mr. Benoit's condition, as shown in the videos, appeared to be normal and unimpaired. On the other hand, Mr. Walker submitted that particularly the audio recording of the defendant's utterances while in the rear of the cruiser, which Crown counsel described as a belligerent, racist and drunken rant, provided confirmatory evidence of the defendant's significant level of impairment at the relevant time.
12While the subject of no disagreement, it might also be useful at this stage to state explicitly the various burdens of proof that applied to the different aspects of this blended Charter application and trial.
13Concerning the Charter issues, it was accepted that a balance of probabilities was the relevant standard of proof. While the defendant's position was not necessarily always clear in relation to the alleged infringement of s. 9, in the end it seemed to be agreed that the claim was limited to an argument, which Mr. Partington declined to abandon, that the detention that resulted from stopping the vehicle in the first place was arbitrary and constituted a s. 9 violation. It was not suggested that the defendant did not have the onus of establishing this alleged breach.
14With respect to the s. 8 claim, Mr. Walker accepted that since there was a warrantless seizure of breath samples, the Crown had the burden of proving that P.C. Crocker had the necessary reasonable and probable grounds to justify the breath demand that was made. Since the s. 254(3) demand was a concomitant of the officer's alleged belief that the defendant had committed the offence of impaired driving, the purported reason for the arrest, it was not suggested by either party that any useful purpose would be served by a separate determination of whether the arrest itself was a lawful one in compliance with s.9: see R. v. Shepherd, 2009 SCC 35 at para. 14; R. v. Bush, 2010 ONCA 554 at para. 79. In order to avoid a finding that s. 8 was breached, the Crown clearly had the burden of establishing on a balance of probabilities that P.C. Crocker had the reasonable and probable grounds required for a valid approved instrument breath demand.
15The defendant bore the onus of establishing the alleged violation of s. 10(b).
16In the event of any finding that there had been a constitutional violation, the defendant then had the burden of establishing that the exclusion of evidence under s. 24(2) should result.
17Finally, with respect to the trial proper, it was of course accepted that Mr. Benoit was entitled to rely on the presumption of innocence. The Crown had the burden of proving all of the essential elements of either alleged offence beyond a reasonable doubt, with each count considered separately, before there could be a finding of guilt on the particular charge.
18Notwithstanding the risk of unnecessary repetition and prolixity, in the present circumstances, although the analysis and reasoning obviously proceeded through a consideration of the evidence and the credibility assessments prior to the factual findings (on either the balance of probabilities standard in relation to the Charter issues or proof beyond a reasonable doubt on the trial) and then to the necessary legal determinations, I think it would be preferable to state my conclusions first and then set out the reasons that led to them.
19Those conclusions, which admittedly require explanation, include the following:
P.C. Crocker was a credible witness who provided reliable evidence, and findings of fact (on either standard of proof) can safely be based on his evidence;
Mr. Benoit was not, in general, an honest or truthful witness, although I accept his evidence on the s. 10(b) issue that his preference at the time was to have consulted with his own lawyer rather than duty counsel prior to the breath tests;
P.C. Crocker was authorized by s. 48 of the Highway Traffic Act to have stopped the vehicle being driven by the defendant for the purpose of determining whether a breath demand (for either an approved screening device roadside test or Intoxilyzer tests at the station) was justified;
P.C. Crocker then formed a belief based on reasonable and probable grounds, assessed both subjectively and objectively, that Mr. Benoit's ability to drive was impaired by alcohol, and he made a valid s. 254(3) breath demand;
No infringement of s. 9 of the Charter has been made out;
Since the Crown established that there were reasonable and probable grounds for the approved instrument breath demand made by P.C. Crocker, no s. 8 Charter violation occurred;
While further efforts might conceivably have been made by P.C. Crocker to facilitate contact between Mr. Benoit and his counsel of choice, the defendant did not exercise appropriate diligence in conveying to the officer either his initial intentions or any later dissatisfaction with the consultation with duty counsel that took place. As a result, in my opinion, it has not been established that there was a s. 10(b) violation;
If I am wrong in that finding and a s. 10(b) breach did occur, I am satisfied that the defendant did not demonstrate that, having regard to the necessary Grant lines of inquiry, the breach should lead to the exclusion of the evidence of the Intoxilyzer test results. Indeed, the exclusion of such evidence in the circumstances of this case would likely bring the administration of justice into disrepute;
The contents of the certificate of the qualified technician, supplemented by P.C. McConnell's oral testimony, establishes the accuracy of the breath test results;
The presumption of identity, relating the breath test readings back to the time of driving, even without the expert evidence of a toxicologist, should continue to apply in post-amendment transitional cases such as this. The summary conviction trial court decisions that have reached this conclusion are persuasive and should be followed;
The defendant's blood alcohol concentration at the time of driving was, accordingly, 148 milligrams of alcohol per 100 millilitres of blood;
As was immediately apparent from listening to the audio recording of Mr. Benoit in the back seat of the police cruiser after his arrest, even in the absence of the breath test results, one could only conclude that his ability to drive was significantly impaired by alcohol at the time he drove the vehicle;
His blood alcohol concentration established that his impairment was due to his consumption of alcohol;
The evidence proves both the impaired driving and over 80 charges against Mr. Benoit beyond a reasonable doubt, and findings of guilt are required.
20What follows is intended to be the explanation of the reasons for why, in my view, the Charter application must be dismissed, and for why the evidence permits no other conclusion except that the Crown has proved the charges beyond a reasonable doubt.
The Evidence
(i) P.C. Jason Crocker
21P.C. Crocker, an officer with the Toronto Police Service who at the time had about three years' experience, testified that during the early morning of October 6, 2017, he was on duty in uniform driving a marked police cruiser with his escort, P.C. Martin, in Scarborough. At 1:49 a.m., according to P.C. Crocker's evidence, as he was driving southbound on Birchmount Rd, he observed a silver pick-up truck proceeding towards the exit of the parking lot of the strip plaza located at the southeast corner of the intersection of Birchmount and Lawrence Avenue. The officer testified that the vehicle "hesitated" at the roadway "upon seeing the police car" before turning left to go south. It was apparent that P.C. Crocker did not actually know what the driver of the vehicle saw or why he "hesitated," stopping once or twice (according to his evidence-in-chief) before pulling forward and making the turn.
22In cross-examination, P.C. Crocker agreed that his notes did not explicitly refer to one or more abrupt or jerky stops before pulling out to make the turn, and that it was normal for a vehicle to stop at a sidewalk before making a safe turn onto the road of the kind he described in his evidence. P.C. Crocker added that it was not unusual for drivers to react in some way when a marked police car becomes visible, but that the vehicle's movements were nonetheless what initially drew his attention to it. He agreed that the defendant turned safely into the southbound passing lane ahead of the police cruiser that was behind it in the curb lane.
23P.C. Crocker testified that, to his knowledge, the only business in the strip plaza that was still open at that time of night was a bar called Winners.
24In terms of the route the pick-up truck took after leaving the plaza, P.C. Crocker testified that the vehicle first went southbound on Birchmount, then made a left turn at a street called Flintridge and then an immediate right turn into the parking lot of another strip plaza, before proceeding through the plaza lot, without stopping, and then turning left back onto Birchmount again and proceeding further south. P.C. Crocker, who had slowed to watch it, then continued to follow it. P.C. testified that he regarded the vehicle's route as "unusual," although he agreed with Mr. Partington's suggestion that there were no problems or safety issues concerning the multiple turns made by the vehicle to get back on to the southbound passing lane of Birchmount.
25With P.C. Crocker still following, the pick-up truck made a left turn onto a street called Flora Drive, and the officers followed three or four car lengths behind. The roadway went straight for a short distance, then to the right and then to a sharp 90 degree curve to the left. P.C. Crocker testified that the vehicle signalled a left turn, even though it was just the direction the roadway took, with no other choice except to go to the left. P.C. Crocker testified that at this point he had concerns about the sobriety of the driver and decided to stop the truck. He activated his emergency equipment, which involved flashing lights and a siren. It also had the effect of turning on the in-car camera on the dash which faced forward through the windshield of the police cruiser. In cross-examination, defence counsel produced a makeshift map (Ex. 6) showing the route the officer had described, and P.C. Crocker agreed that it was accurate.
26P.C. Crocker testified that the vehicle did not immediately pull over when it was signalled to do so, but proceeded another 250 metres or so before stopping at the side of the road. The video from the in-car camera showed both that there were some parked cars on the right side of the road after the police had signalled the defendant to pull over (as suggested by defence counsel in cross-examination), but also that there were places where Mr. Benoit could have safely stopped before he actually did.
27P.C. Crocker approached the driver's side of the pick-up with a flashlight and focused on the driver, Mr. Benoit, rather than the woman passenger. He testified that he observed that when he first spoke to the defendant, explaining the reason for stopping him, pointing out the microphone he was using and asking for the usual documents, the defendant initially avoided making eye contact. When P.C. Crocker was able to see his eyes, he observed that they were watery, glassy, red and bloodshot. The officer detected the odour of alcohol on his breath when he spoke. When he asked Mr. Benoit for his identification, P.C. Crocker testified that his speech was slurred, and that he "started and stopped" as he orally provided his name and birthdate. In cross-examination, P.C. Crocker agreed that Mr. Benoit was responsive to his questions, but that he was not always able to understand what he was saying. The recording from the in-car system was included in the computer disc that was filed as Ex. 2 and provided a record, although not of uniformly high quality, of Mr. Benoit's manner of speech during the initial interaction with P.C. Crocker after the vehicle was stopped.
28P.C. Crocker testified that it was at this time that he formed the belief that Mr. Benoit had been operating the motor vehicle while he was impaired by alcohol. The officer summarized the grounds he took into account in forming his belief. They included (i) the "hesitation" by the vehicle when it was exiting from the plaza, a location where the Winners Bar was apparently the only business open at that hour, when the marked police cruiser would have become visible and noticed by the driver; (ii) the unusual route taken by the vehicle, including driving through another plaza parking lot, for no apparent reason, without stopping, perhaps suggesting an effort to evade the attention of the police; (iii) the unnecessary left turn signal when driving on Flora Drive; (iv) the failure to stop immediately when signalled by the police to do so, but instead continuing for an unusual time and distance; (v) the odour of alcohol on Mr. Benoit's breath; (vi) the observation that his eyes were watery, glassy, red and bloodshot; (vii) his slurred speech; and (viii) his halting, hesitant manner of speech even when merely stating his name and date of birth.
29In cross-examination, P.C. Crocker agreed that other possible explanations for the manner of driving and the individual observations he made of the defendant might be available, but he testified that his belief that Mr. Benoit had been driving while impaired by alcohol was based on his assessment of the totality of the observations he had made.
30The defendant complied with the officer's request to turn off the motor, to take out the key and to exit the vehicle. At 1:57 a.m., P.C. Crocker informed him that he was under arrest for impaired driving, handcuffed him and placed him in the rear of the police car. Although the in-car camera appeared to be operational, when P.C. Crocker activated it to switch to the backseat of the cruiser, the camera continued to be directed only at the stopped pick-up truck ahead of the police car. The microphone inside the cruiser nonetheless provided a mostly, although not completely, audible recording of what was said by both P.C. Crocker and Mr. Benoit as the investigation progressed.
31At 1:59 a.m., P.C. Crocker read Mr. Benoit his rights to counsel, using the standard wording in the officer's memo book. It included the usual language as to the person's right to call "any lawyer you wish", as well as the information concerning Legal Aid and duty counsel. When the officer asked if he understood, the defendant said he did.
32Following the caution about making any statements, which repeated that the reason for his arrest was that he was charged with impaired operation, P.C. Crocker proceeded to read the standard approved instrument breath demand that tracked the language of s. 254(3). Although the officer did not note Mr. Benoit's response when he asked if he understood, it was part of what was captured on the audio recording, and no issue concerning the wording of the demand or the defendant's understanding of it was raised at trial.
33While P.C. Crocker continued to make computer checks and arrange for another police unit to attend to look after the impounded vehicle and to assist the passenger in getting a taxi, the camera system continued to record what Mr. Benoit was saying in the back seat. The audio recording captured protracted profane, heavily-slurred, sometimes very loud utterances made by Mr. Benoit. It was not always clear precisely what he was saying, or to whom his comments were directed, but at 2:06 a.m., evidently in relation to the impounding of the truck, the defendant commenced yelling "Fucking asshole!" He continued yelling for some time, stating at 2:10 a.m. (according to the time on the video monitor), "Fucking assholes… let's go… I'm a criminal, right? Fucking assholes… bunch of fucking idiots… Go catch the bank robbers… get the fucking niggers… bullshit!..."
34At 2:11 a.m., the officers and Mr. Benoit left the scene of the arrest and arrived at 41 Division at 2:17 a.m.. The defendant was escorted into the station at 2:26 a.m., with separate video recordings played in court both from the area of the sallyport and then a video, lasting nine minutes, of the booking process before the officer in charge of the station, Sgt. Hansard, and a male officer who assisted her by conducting what was referred to as a "level 2" search.
35With respect to moving Mr. Benoit from the sallyport to the booking room, Mr. Partington suggested, in cross-examination, that there was nothing remarkable in the defendant's movements as shown on the video (Ex. 5). P.C. Crocker testified that he observed some unsteadiness and recalled having to tighten his grip on the defendant's arm to assist him as they entered the station.
36During the booking procedure, reference was again made to Mr. Benoit's understanding of his s. 10(b) right to counsel. The video discloses that P.C. Crocker, standing beside Mr. Benoit, told Sgt. Hansard that he had been informed of his right to counsel and that he understood. P.C. Crocker repeated that he could speak to a lawyer when they had the opportunity to place the call. Sgt. Hansard then had the following exchange with Mr. Benoit:
Q.: You understand your right to counsel?
A.: Yeah.
Q.: The officer will put you in touch with your lawyer if you have one. If you don't, he'll put you in in touch with free Legal Aid advice.
A.: Yeah, yeah [repeated throughout Sgt. Hansard's statement to him]
Mr. Benoit did not say anything further in response to the sergeant's statements.
37The booking video shows that Sgt. Hansard went on to tell Mr. Benoit, mistakenly, that he had been arrested for "over 80," which caused Mr. Benoit to express some confusion. It was not suggested that the error was of any significance. However, in relation to what became the s. 10(b) issue at trial, the recording shows that when the defendant's property, including his money, belt, shoelaces and earrings were taken and placed in a property bag, he was then asked if he wanted to access any numbers from his cellphone before it was placed in the bag as well. At this point, Mr. Benoit asked them to retrieve the number for his wife Lorna (presumably under "L" in his contacts list) and also the number for "John Dennis." The video documents that the officer looked first under "J" and then under "D" and then recited the phone number "(416) 652-8788". The sergeant wrote the two phone numbers on a blue piece of paper, according to the video, which P.C. Crocker then placed in Mr. Benoit's pocket. Mr. Benoit did not say anything to indicate who John Dennis might be, and P.C. Crocker testified that he did not learn until later that he was a lawyer.
38P.C. Crocker agreed during cross-examination that the audio recording from the booking was probably the clearest record of Mr. Benoit's manner of speech. The officer testified that he was still able to discern slurred speech and that Mr. Benoit appeared frustrated and continually "spoke over" the sergeant.
39After the booking was complete, at 2:38 a.m., P.C. Crocker and Mr. Benoit moved to what was described as the "report room" that had a bench and a "privacy booth" where a phone could be used by people in custody to speak to lawyers. There was no camera there to record events in the report room. P.C. Crocker testified that since another detainee was already using the phone, they had to wait for a period of time. At 2:48 a.m., Mr. Benoit asked to use the washroom, and P.C. Martin took him to the cell area for that purpose. P.C. Crocker noted that around the same time, P.C. McConnell, the qualified technician, had arrived at the station.
40P.C. Crocker testified that it would have been his normal practice to have asked a person in Mr. Benoit's position if he had a lawyer or if he wanted to speak to duty counsel, but that he had no specific recollection of what occurred in this case. He testified that he might have asked Mr. Benoit before he left for the washroom if he wanted him to call duty counsel, but he agreed that he had no specific notes in that regard and that he could not recall (about 20 months later) the details of the conversation that occurred.
41At 2:52 a.m., P.C. Crocker placed a call to duty counsel and left a message to call back.
42At 2:58 a.m., Mr. Benoit, having returned from the washroom, advised him for the first time, P.C. Crocker testified, that he did have his own lawyer, a person named John Dennis. The officer recognized the name as one of the people whose numbers the defendant had asked to be retrieved from his phone earlier in the booking hall. P.C. Crocker also testified that until then he had not known that Mr. Benoit was a lawyer.
43At 3:00 a.m., according to his evidence, P.C. Crocker then called the number that had been written down and his call "went to voicemail," identifying itself as John Dennis's line. P.C. Crocker testified that he did not leave a message.
44It might be added, since defence counsel made an issue of it in his submissions, that P.C. Crocker also testified that, after watching the booking video that was played in court during his evidence, he had noticed a single-digit discrepancy between what he had recorded in his notes as the number he called and to which he had earlier testified, and what had been written on the piece of paper that was heard being recited in the booking hall video. He testified that he had made an error with one of the digits in his memo book, and that he in fact called the number that had been written down. He testified that he knew that he had called the right number because he recalled that the voicemail recording indicated that it was the number for Mr. Dennis.
45Again, while acknowledging that he did not include any reference in his notes to what he told Mr. Benoit at that point, he testified that he would have told Mr. Benoit that he had attempted to call Mr. Dennis, but that his call had gone to voicemail. He testified, however, that he no longer had a specific recollection of this part of the conversation he had with Mr. Benoit. The officer testified that he would have told him the outcome of the call, i.e., that it was not answered and that he had not left a message, but did not recall the rest of what was said. P.C. Crocker testified that he did not recall that the defendant ever expressed any displeasure at not having spoken to Mr. Dennis.
46At 3:04 a.m., Duty Counsel named Mr. Johnston returned the call that P.C. Crocker had placed 12 minutes earlier, and Mr. Benoit then spoke to him in the privacy booth. P.C. Crocker did not note the time the call ended, but at 3:11 a.m., he testified, he took the defendant into the breath room where the breath tests were conducted.
47P.C. testified that after the breath tests, he escorted Mr. Benoit to the cell area at 3:48 a.m. and, at 4:25 a.m., he served him with a number of documents, including a copy of the certificate of a qualified technician, P.C. McConnell.
(ii) P.C. Shaun McConnell
48The Crown called P.C. McConnell, the qualified technician from Traffic Services who conducted the breath tests, to supplement the contents of his certificate (Ex. 4) with further evidence concerning the checks he made to ensure that the Intoxilyzer was operating properly. The test record card produced by the machine, recording the system blank checks, the calibration check and the diagnostic test before the analysis of each of the two breath samples from Mr. Benoit, was filed, on consent, as Ex. 7.
49P.C. McConnell testified that, as indicated in Ex. 7, Mr. Benoit's breath samples, provided at 3:19 a.m. and 3:41 a.m., were analyzed and both produced readings of 148 milligrams of alcohol per 100 millilitres of blood.
50Only the first part of the video recording of the events in the breath room was played during the qualified technician's evidence. The focus was on the following question asked by P.C. McConnell and Mr. Benoit's response, shortly after the defendant entered the room:
Q. I understand you spoke with duty counsel?
A. Yeah, yeah.
P.C. McConnell testified that he did not recall any further conversation concerning the defendant's right to counsel, and if there had been, it would be have been recorded on the video. Both Mr. Walker and Mr. Partington agreed that there were no other references relevant to the s. 10(b) issue in the recording from the breath room.
51When asked what observations he made of Mr. Benoit's condition, P.C. McConnell testified that he detected a strong odour of alcohol on his breath, that his eyes were bloodshot and glassy, that his face was flushed, with very red cheeks and complexion, and that he noted his speech to be slightly slurred at the end of taking the second sample, but that it was otherwise good. In cross-examination, P.C. McConnell testified that he did not see any other indicia of impairment, apart from the observations he had already described in his evidence.
(iii) John Benoit [with respect to the Charter application only]
52Mr. Benoit testified that when he was being booked at the police station and was asked if he wanted any of the numbers from his cellphone, he told them he wanted his wife Lorna's number and John Dennis's number. He testified that Mr. Dennis had acted for him before and that he intended to call him to let him know what was going on. Mr. Benoit added that he had been arrested late at night on previous occasions and been permitted to speak to his lawyer, so he expected that the same would happen this time as well.
53Mr. Benoit also testified that when he was sitting in the office, an apparent reference to the report room at the station, he asked the officer to call his lawyer. He testified that P.C. Crocker said he would call duty counsel, but that he replied something like "But what about my lawyer?" or "Any chance of calling my lawyer for me?" According to Mr. Benoit's evidence, P.C. Crocker said he would call his lawyer, but then immediately said that he had duty counsel on the line. When Mr. Benoit then said, "What about my lawyer?", the officer didn't answer and "kind of brushed [him] off," stating that he had duty counsel on the phone and that he could talk to him. Mr. Benoit testified that he figured, at that point, that he had no other choice.
54In answer to Mr. Partington's question, Mr. Benoit testified that if P.C. Crocker had told him that he didn't have to speak to duty counsel, he would have waited to speak to his own lawyer. He testified further that he was not really satisfied with duty counsel, who didn't give him much advice. If he had spoken to his own lawyer, he stated, he would have asked him if it was okay to take the breathalyzer test or not take it, and what his choices would have been.
55In cross-examination, Mr. Benoit admitted he had a lengthy criminal record that included numerous convictions between 1985 and 2009, mainly for thefts, several assaults, and failing to appear, many of which had led to short jail terms or probation. He testified that John Dennis had represented him since the 1980's and as recently as a couple of year ago. Although he could not recall specifically when he called Mr. Dennis late at night, he testified that he recalled at least one such occasion, about 20 years ago. Mr. Benoit testified that he had never been to Mr. Dennis's office, but only talked to him on the phone or saw him in court. He testified that he did not know whether the number P.C. Crocker had was for Mr. Dennis's office or cellphone, but he agreed that, at 3:00 a.m., he assumed that he would be asleep and that reaching him would be unlikely.
56Mr. Benoit again testified that when he asked P.C. Crocker whether he had called his lawyer, the officer did not answer him, but simply told him duty counsel was on the phone. Although his evidence was not always clear, Mr. Benoit agreed that the first time he indicated to P.C. Crocker that Mr. Dennis was his lawyer was "pretty much" during the conversation in which the officer told him that duty counsel was on the phone. Mr. Benoit also agreed that he had been told earlier that he could call any lawyer he wished. He similarly agreed with Mr. Walker's suggestion that he never protested or complained to P.C. Crocker about having to speak to duty counsel, nor did he say anything about being dissatisfied with the advice duty counsel had provided to him.
57With respect to the s. 8 "reasonable and probable grounds" issue, Mr. Benoit initially testified that he could not recall if he was drunk that night, but that he had had only two or three beers and that that was "pretty much" all he had. When Mr. Walker suggested that he had had a lot more than a couple of beers, he stated that he didn't know, but repeated that it was no more than two or three. Mr. Benoit also agreed that in the recording from the police cruiser (following the arrest and breath demand) he sounded angry, belligerent and combative, but he testified that he sometimes acts that way even when he has not been drinking.
The Assessment of Credibility and Reliability
58In my opinion, P.C. Crocker was an obviously honest and truthful witness who gave reliable evidence that compels acceptance. His evidence persuasively demonstrated that he was an intelligent, competent and conscientious officer whose testimony was both believable and trustworthy, even acknowledging the lapses in his recollection and notes concerning exactly what he and Mr. Benoit said to each other concerning the defendant's delayed request to speak to his counsel of choice.
59P.C. Crocker's testimony concerning the reasons why the vehicle being driven by the defendant attracted his attention not only explained in a sensible, coherent way why he took the actions he took, but remained uncontradicted and in accordance with the inherent probability that events occurred as he described them.
60Despite, for example, Mr. Partington's suggestion that there could have been other businesses still open at that time of night in the plaza apart from Winners Bar, there was no evidence that such was the case, nor was there any reason to think that the officer, with three years' experience at 41 Division, lacked the familiarity with the area that he claimed and that one would have expected. Similarly, there was no other apparent reason, in my view, to account for P.C. Crocker and his escort P.C. Martin (who was not called as a witness) abandoning their response to another unrelated call and instead noticing and then following the vehicle being driven by Mr. Benoit.
61Moreover, the accuracy of virtually all of P.C. Crocker's testimony, with the exception of the circumstances surrounding the alleged s. 10(b) infringement, was confirmed by other evidence led at trial. For example, defence counsel prepared a handwritten diagram based on a Google map of the area that confirmed the accuracy of the officer's verbal description of the route taken by Mr. Benoit when the police followed him. Likewise, I think it is significant that almost all of the interactions between Mr. Benoit and P.C. Crocker, again with the exception of the events in the report room, were captured on video. The recordings that were played in court during the officer's evidence confirmed the accuracy of essentially all his testimony concerning the observations he made and the chronology he provided.
62With respect to the unrecorded interactions between P.C. Crocker and Mr. Benoit in the report room dealing with the call to duty counsel and the request to call Mr. Dennis, the officer fairly acknowledged that he had failed to make notes of the details of their conversation. He conceded that his arguably inadequate effort to facilitate contact with Mr. Dennis left him open to criticism of the kind Mr. Partington suggested during cross-examination. That said, I do not think that the admitted frailties of the officer's testimony concerning this one issue have the effect of casting doubt on his credibility generally or bringing into question the overall reliability of his account of what occurred. As I will explain, Mr. Benoit's differing narrative concerning the events in the report room made little sense and does not detract from my acceptance of the officer's evidence as to what occurred, acknowledging the uncertainty concerning the precise conversation that P.C. Crocker himself admitted.
63It might be noted as well that in relation to confirming the reliability of the grounds P.C. Crocker stated for believing Mr. Benoit to be impaired by alcohol, P.C. McConnell, the breath technician, testified that he too observed the odour of alcohol on Mr. Benoit's breath, as well as his red and glassy eyes. While P.C. McConnell's testimony that he only detected slightly slurred speech at the end of the second breath test and that the defendant's speech was otherwise good was not totally consistent with P. C. Crocker's earlier observations at the roadside, the audio recording of how Mr. Benoit spoke when he was still in the driver's seat of the pick-up truck, prior to the officer's forming the belief that led to the arrest and breath demand, clearly confirmed the accuracy of P.C. Crocker's testimony that the defendant's speech was noticeably slurred and hesitant.
64In contrast to my favourable assessment of P.C. Crocker's credibility and my finding that his evidence was accurate and convincing, I must state my conclusion that Mr. Benoit was not a credible witness and that his testimony - called only with respect to the Charter issues, it is worth repeating – should be rejected where it conflicts with that given by P.C. Crocker.
65With respect to the s. 10(b) issue, I accept that Mr. Benoit must have had in his own mind an intention to consult with Mr. Dennis, after he had been told more than once that he could speak to any lawyer he wanted, and that must have been the reason why he asked the officers in the booking hall to retrieve the number for John Dennis from his phone. He agreed, however, that he never told P.C. Crocker or anyone else who Mr. Dennis was until, according to his evidence, he was told duty counsel was already on the phone ready to speak to him. The defendant's chronology is not consistent with what was inherently likely in the circumstances and ascribed to the officer conduct that struck me as quite inconsistent with the impression that the officer conveyed as a witness who understood his constitutional obligations and made efforts to comply with them.
66Mr. Benoit's evidence that the officer merely "brushed off" his request and failed to answer his question about calling Mr. Dennis is contradicted by the more reliable evidence given by P.C. Crocker, which I accept, that he told Mr. Benoit that he called Mr. Dennis's number, but that it went to voicemail and that he did not leave a message. It seemed undisputed that Mr. Benoit only told the officer who Mr. Dennis was after P.C. Crocker had already placed the call to duty counsel. Twelve minutes then elapsed before duty counsel called back. Despite defence counsel's submission that P.C. Crocker could have fabricated his evidence about calling Mr. Dennis's number and then telling Mr. Benoit that his attempt to reach him had been unsuccessful, I accept that the officer's version is far more likely. To be fair, it is possible that the defendant's consumption of alcohol on the night in question, disclosed by the breath test results and admitted by him in cross-examination on the Charter application, might have affected his perception at the time and his memory of the precise details of what occurred in the report room. P.C. Crocker was also unable to remember exactly what was said, but at least the officer's narrative made sense and accounted for the chronology. While it may be that Mr. Benoit's testimony was not intentionally misleading on the point, I think that his version remains quite improbable and should be rejected.
67In the circumstances, I do not think it is necessary to make any additional comments or findings concerning Mr. Benoit's character or general credibility as a witness. Neither the references to his prior criminal record nor his admittedly offensive language did not end up having any impact on the factual determinations in this case.
The s. 9 "Arbitrary Detention" Claim
68Mr. Partington did not make any argument concerning the alleged s. 9 violation, apart from submitting that P.C. Crocker's evidence should not be accepted. Nonetheless, Mr. Partington stated expressly that he was not abandoning his position.
69I am satisfied that there is no merit to a claim, disingenuous or not, that s. 9 was breached when P.C. Crocker stopped the vehicle driven by the defendant. The application based on this complaint should be summarily dismissed.
70As was held in R. v. Wilson, 1990 CanLII 109 (SCC), stopping a motorist, as authorized by provincial legislation on grounds which are reasonable and can be clearly expressed, is not random and does not violate s. 9 of the Charter.
71In this case, P.C. Crocker articulated the reasons why he stopped the vehicle. I accept his evidence that he had concerns about the sobriety of the driver after observing that it was coming from the location of a bar late at night, that it followed an unusual route, possibly in an attempt to evade notice by officers in a visible marked cruiser, and that the manner of driving, otherwise normal, involved some hesitation and then an unnecessary left turn signal where the roadway simply curved to the left.
72I accept Mr. Walker's submission that s. 48 of the Highway Traffic Act authorized P.C. Crocker to stop the vehicle to determine whether a breath demand under s. 254 of the Criminal Code might be justified. The resulting detention of Mr. Benoit was, accordingly, not arbitrary.
73The s. 9 claim, not abandoned but also not meaningfully pursued, must be rejected.
The s. 8 "Reasonable and Probable Grounds" Issue
74In R. v. Shepherd, 2009 SCC 35, McLachlin C.J.C. and Charron J. stated, in a unanimous judgment, the following:
[16] … The onus is on the Crown to prove that the officer had reasonable and probable grounds to make the [s. 254(3)] demand because the Crown seeks to rely on breath samples obtained as a result of a warrantless search. ...
[17] As this Court noted in Bernshaw, there is both a subjective and an objective component to establishing reasonable and probable grounds; that is, the officer must have an honest belief that the suspect committed an offence under s. 253 of the Criminal Code, and there must be reasonable grounds for this belief (Bernshaw at para. 48). …
[23] With respect, it is our view that the trial judge erred in finding that the officer's subjective belief in impairment was not objectively supported by the facts. The officer's belief was based not only on the accused's erratic driving pattern but also on the various indicia of impairment which he observed after he arrested Mr. Shepherd [for failing to stop for police]… it is important to note that the officer need not have anything more than reasonable and probable grounds to believe that the driver committed the offence of impaired driving or driving "over 80" before making the demand. He need not demonstrate a prima facie case for conviction before pursuing his investigation. In our view, there was ample evidence to support the officer's subjective belief that Mr. Shepherd had committed an offence under s. 253 of the Criminal Code. We therefore conclude that the officer had reasonable and probable grounds to make the breath demand, and that Mr. Shepherd's Charter claim must fail.
See also R. v. Bush, 2010 ONCA 554 at paras. 46-48.
75In my view, the application of the law stated in Shepherd produces the same result in this this case that was reached there. While the applicable standard of proof is merely on a balance of probabilities, I am satisfied that the evidence adduced by the Crown here meets a considerably more exacting standard.
76Despite defence counsel's submissions suggesting that P.C. Crocker fabricated his evidence in order to advance the Crown's case, I am satisfied, as already stated, that P.C. Crocker was a credible and truthful witness, and that he did in fact honestly form the belief he described in his evidence. He explained that he took into account not only his observations of the location and manner of driving that gave rise to his concerns that led him to stop the vehicle in the first place, but that he also based his belief on the failure of Mr. Benoit to pull over immediately when directed to do so, and then his observations of the condition of the defendant and the indicia of impairment he displayed. These included the odour of alcohol on his breath when he spoke; his watery, glassy, red and bloodshot eyes; and his slurred speech and hesitant manner of speaking. The officer clearly took into account the totality of his observations in making his assessment and forming his belief.
77Moreover, I am satisfied that P.C. Crocker's belief was not only genuine and sincerely held by him, but that it was based on grounds that, viewed objectively, established reasonable and probable grounds for believing that Mr. Benoit was impaired by alcohol at the time and that the s. 254(3) breath demand was justified.
78The audio recording of Mr. Benoit's slurred speech and spluttering answers to the officer's straightforward questions at the roadside, prior to the decision to arrest him and make the breath demand, amply supports the opinion formed by P.C. Crocker then. The immediate impression conveyed by the defendant's manner of speech was that he was quite intoxicated. While it might also be noted from having listened to Mr. Benoit's testimony on the Charter application that he seems to speak naturally in an exceptionally slurred manner (and Mr. Partington fairly conceded that elocution was not one of his client's skills), P.C. Crocker had no reason to think that that might be the case when he was dealing with him. I am sure that the officer's factoring Mr. Benoit's manner of speech into the opinion he reached at the relevant time was completely warranted.
79Mr. Benoit's testimony in relation to the Charter issues, it should be noted, made no attempt to contradict P.C. Crocker's observations as to his manner of driving or his condition when he was stopped.
80Since the Crown has discharged its burden of establishing that P.C. Crocker had the requisite reasonable and probable grounds for believing then that Mr. Benoit was impaired by alcohol, it was not necessary for the officer to have administered a roadside screening test. I find that the subsequent arrest and breath demand were lawful. The Crown has proved that the breath demand was authorized by s. 254(3) and that no infringement of s. 8 breach occurred.
The Alleged s. 10(b) Charter Breach
81Although potentially more troubling than the other Charter complaints, I am also not satisfied that Mr. Benoit has established, on a balance of probabilities, any infringement of his s. 10(b) right to counsel.
82The evidence which I accept establishes the following probable facts:
At 1:59 a.m., when he was arrested, P.C. Crocker properly informed Mr. Benoit of his right to call any lawyer he wanted, as well as informing him that advice from duty counsel would be available. Mr. Benoit said that he understood, but said nothing about wanting to call a particular lawyer;
When he was booked into 41 Division at 2:28 a.m., P.C. Crocker told the sergeant, in Mr. Benoit's presence, that he had been informed of his right to counsel, that he understood, and that he had said he would speak to a lawyer when he had the opportunity. Sgt. Hansard then asked Mr. Benoit if he understood his right to counsel, and he said he did. She then explained to Mr. Benoit again that "the officer will put you in touch with your lawyer if you have one" and "if you don't have one, he'll put you in touch with free Legal Aid advice." She asked if he understood, and Mr. Benoit said he did. Mr. Benoit again said nothing about having a particular lawyer in mind;
Near the end of the booking process, at about 2:36 a.m., Mr. Benoit was asked if he wanted the officers to retrieve any numbers from his cellphone before it was placed in his property bag. Mr. Benoit said he wanted the numbers for his wife and John Dennis. The officer retrieved the numbers, Sgt. Hansard wrote them down on a piece of paper, and P.C. Crocker put the paper in Mr. Benoit's pocket. Again, Mr. Benoit said nothing about who John Dennis was. P.C. Crocker did not know he was a lawyer, and there is no reason to think the officer should have drawn that inference;
At 2:48 a.m., while in the report room where the privacy booth was located, Mr. Benoit asked to use the washroom and P.C. Martin took him to the cell area for that purpose. At 2:52 a.m., when Mr. Benoit was apparently off in the washroom and the phone became available, P.C. Crocker phoned duty counsel and left a message to call back;
At 2:58 a.m., it was only after Mr. Benoit was back in the report room that he advised P.C. Crocker for the first time that he did have his own lawyer, a person named John Dennis. P.C. Crocker immediately realized that that was the name of the person whose number had been written down when they were in the booking hall, so the officer called the number. The call went to voicemail, confirming that it was John Dennis's line. The officer decided not to leave a message because it was the middle of the night and, he reasonably assumed, the lawyer would not receive it until much later;
P.C. Crocker explained to Mr. Benoit that his call to Mr. Dennis had been unsuccessful and that he had not left a message. Mr. Benoit accepted, as he himself implied in his evidence, that Mr. Dennis was probably asleep and that the chances of reaching him at three o'clock in the morning were minimal;
A couple of minutes later, at 3:04 a.m., when duty counsel phoned the police station to offer the defendant legal advice, Mr. Benoit spoke to him for several minutes in the privacy booth. Mr. Benoit made no complaint to P.C. Crocker before he spoke to duty counsel, nor did he express any dissatisfaction to the officer after he consulted with duty counsel;
Just after being taken, at 3:11 a.m., into the breath room for the Intoxilyzer tests, P.C. McConnell confirmed that Mr. Benoit had spoken to duty counsel. Again, Mr. Benoit said nothing further concerning any complaints he might have had in relation to his inability to speak to his counsel of choice or complaining about the adequacy of the consultation with duty counsel that had taken place.
83In my view, these facts do not establish a s. 10(b) breach. Mr. Partington referred to a few decisions from the Ontario Court of Justice suggesting that P.C. Crocker was obliged to do more than he did, but it is far from clear, at least in my opinion, what exactly he should have done when his call to Mr. Dennis went to voicemail. Assuming that the officer ought to have left a message about Mr. Benoit being at 41 Division for the purpose of breath testing, I am not at all certain how long the breath tests should have been delayed awaiting an objectively unlikely return call. I am also not able to identify the point at which consultation with duty counsel, which seemed agreeable to the defendant at the time, should not have been regarded as an acceptable alternative. In my view, after Mr. Benoit spoke to duty counsel, it was reasonable for P.C. Crocker to then take him to the breath room for the Intoxilyzer tests. These conclusions, in my opinion, accord with the principles stated in R. v. Willier, 2010 SCC 37.
84Although I have read and considered the cases cited by Mr. Partington, I do not regard it as unreasonable for P.C. Crocker to have initially believed, in the absence of any information provided by Mr. Benoit, that the defendant did not have a specific lawyer he wanted to call. Mr. Benoit was not diligent in informing P.C. Crocker that he did have his own lawyer, Mr. Dennis, and when he did inform the officer of his preference, P.C. Crocker immediately placed the call to Mr. Dennis's number and made the admittedly unsuccessful attempt to facilitate contact with him. While the effects of alcohol could very well explain the delay in Mr. Benoit's identifying his lawyer or making his request to P.C. Crocker, I do not think the officer can be faulted for failing to intuit the defendant's unspoken intention. Further, I do not think the officer can be criticized for regarding the leaving of a voicemail message as apparently pointless. The course he adopted, facilitating contact with duty counsel to whom the earlier call had been placed, substantially increased the likelihood that Mr. Benoit would in fact receive legal advice before the breath tests were conducted.
85If I am wrong in that conclusion, I am still of the view that the s. 10(b) breach claimed by Mr. Benoit would not lead to the exclusion of any of the evidence already obtained prior to the Charter infringement, nor would it result in the exclusion of the breath test results.
86As stated by Durno J. (ad hoc) in Bush, supra at para. 88, "… the alleged breach occurred at the station after the respondent's arrest and would not have resulted in the exclusion of the pre-breach evidence, the evidence upon which he was convicted of impaired operation." It was not suggested here that the reasons given by Laskin J.A. in R. v. Edwards (appeal by Pino), 2016 ONCA 389 had any application to the evidence already obtained, particularly in a drinking and driving case like this, where there was no causal, temporal or contextual connection between the evidence obtained prior to the breach and what occurred afterwards: see, for example, R. v. Do, 2019 ONCA 482 at para. 11.
87While the breath test results are in a different category because they were obtained without Mr. Benoit being able to speak to Mr. Dennis, s. 24(2) requires the Court to follow the instructions given by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32 at para. 71:
When 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. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.
88In my view, none of the considerations here favours exclusion of the Intoxilyzer test results.
89P.C. Crocker's failure to leave a voicemail message, particularly since there is no reason to think Mr. Dennis would have received it in a timely fashion, can hardly be regarded as a serious breach. The evidence supports the conclusion that the officer was concerned with compliance with s. 10(b) and followed what he regarded as the better course to allow Mr. Benoit to consult with a lawyer promptly. As observed at para. 75 of Grant, "extenuating circumstances," including the need to prevent the loss of evidence, attenuate the seriousness of the police conduct that resulted in the breach. In my view, the relative urgency of conducting breath tests make an officer's decision to press on without waiting for an unlikely consultation with a belatedly-requested counsel of choice does not amount to a serious constitutional violation.
90Similarly, the breach appeared to have no real impact on Mr. Benoit's Charter-protected interests, since he was given the opportunity to consult with duty counsel prior to the breath tests. He made no complaint at the time that he was dissatisfied with the advice he received, and no evidence was called to suggest that the advice provided by duty counsel was erroneous or inadequate: Willier, supra at para. 43.
91The reliability of the Intoxilyzer results was not challenged, nor was there any issue as to the importance of the evidence with respect to proving the serious drinking and driving charges. The public interest in having such cases decided on their merits cannot be denied.
92In the circumstances, even if one were to accept that P.C. Crocker did not do as much as he was required to do by s. 10(b) in order to facilitate contact with Mr. Dennis, the resulting Charter breach, in my view, should not lead to the exclusion of the Intoxilyzer readings. The application to exclude the evidence would necessarily be dismissed.
The Presumption of Accuracy Issue
93The viva voce evidence of P.C. McConnell as to his testing of the approved instrument to ensure that it was operating properly, as now required by s. 320.31(1) of the Criminal Code, as well as the Intoxilyzer test record that was admitted without objection, supplemented the contents of the certificate of the qualified technician which met the earlier requirements of s. 258(1)(g).
94Mr. Walker cited R. v. Porchetta, 2019 ONCJ 244, and argued that the reasoning and conclusion reached by D.S. Rose J. on the point should be followed here. Mr. Partington made no submissions otherwise.
95I agree with Justice Rose's statement at para. 47 of his reasons. The evidence in this case also supports, indeed compels, the finding that that the Intoxilyzer accurately measured Mr. Benoit's blood alcohol level at the time of the breath tests, both of which, at 3:19 and 3:41 a.m., disclosed readings of 148 milligrams of alcohol in 100 millilitres of blood.
The Presumption of Identity Issue and the "Over 80" Charge
96Mr. Partington relied on the judgment of Burstein J. in R. v. Shaikh, 2019 ONCJ 157, and stated that he had no submissions to add to the reasons stated in that decision.
97Mr. Walker argued that the weight of authority, none of which is currently binding, has persuasively rejected the position that was taken in Shaikh. The Crown referred to Porchetta, supra at paras 38-39 (Rose J.), R. v. McAlorum, 2019 ONCJ 259 (Latimer J.), and R. v. Sivangilam, 2019 ONCJ 239 (Schwarzl J.). Mr. Walker's assertion that Renwick J. later reversed the opinion he expressed in R. v. Jagernauth, 2019 ONCJ 231, was not disputed. After submissions were made in this case, the judgment of Duncan J. in R. v. Yip-Chuck, 2019 ONCA 367, released only a couple of days earlier, provided another example of a judge of the Ontario Court declining to follow the decision in Shaikh.
98I am persuaded by the reasoning and conclusions reached by Latimer J. in McAlorum and by Duncan J. in Yip-Chuck that Shaikh was wrongly decided and should not be followed. I do not find it necessary or of any interest to anyone to add to my colleagues' analysis and legal determinations.
99The evidence called by the Crown here proves beyond a reasonable doubt that Mr. Benoit's blood alcohol concentration at the time he was pulled over by P.C. Crocker was 148 milligrams of alcohol per 100 millilitres of blood.
Whether Impairment by Alcohol Has Been Proved Beyond a Reasonable Doubt
100In addition to the evidence of the indicia of impairment observed by P.C. Crocker and supported by the video and audio recordings played in the courtroom during the officer's testimony, Mr. Walker submitted that the court should take judicial notice of what he described as the inescapable "common sense" inference that a person with a blood alcohol concentration of 148, approaching almost twice the legal limit, must have been impaired.
101Despite Mr. Walker's submissions, I am not convinced that a trial judge can properly regard a particular blood alcohol concentration as establishing impairment, as opposed to merely accounting for the cause of the impairment that was otherwise proved. Traditionally, I think, R. v. Ostrowski (1958), 1958 CanLII 102 (ON SC) was relied on as authority for the proposition that a court could not take judicial notice that a certain blood alcohol level proved impairment. See also R. v. Hamm, 1976 CanLII 177 (SCC), [1977] 2 S.C.R. 85 at p. 90, where it was held that a very high blood alcohol level provided no evidence of intoxication or an inability to understand documents that were served. In this Century as well, in R. v. Letford, 2000 CanLII 17024 (ON CA), the Court stated, at para. 22, "With respect to the impaired count, the trial judge was wrong in law in proceeding on the basis that he could use the results of the breath test in support of the finding of the degree of impairment."
102As recently as June 17, 2019, in R. v. Ballantine, 2019 ONCA 498, the Court apparently proceeded on the basis that it would have been an error in law for the trial judge to have based his finding of impairment simply on the "retrograde extrapolation," i.e., a toxicologist's evidence of what the blood alcohol level would have been at the time of driving.
103(Similarly, while a slight digression, I do not agree with Mr. Walker's submission that Mr. Benoit's evidence that he had consumed only two or three beers, which was admitted only on the Charter application and could not be considered on the trial proper, should be rejected simply on the basis it was inconsistent with the Intoxilyzer results that were obtained.)
104In any event, Mr. Partington made no submissions on the point, and I am prepared to assume that trial judges should not consider themselves capable of drawing inferences as to sobriety or impairment simply from the evidence of a person's blood alcohol concentration at the time he was driving.
105In the present case, however, I am satisfied beyond a reasonable doubt that Mr. Benoit's ability to drive was indeed impaired by alcohol when he was stopped by P.C. Crocker.
106The evidence must be assessed in its entirety, not simply in a piecemeal way, in determining whether the Crown has discharged its burden of proof. I accept that the observations made by the officer concerning the defendant's manner of driving could have had the other "innocent" explanations that P.C. Crocker himself acknowledged. The defendant's hesitation before turning on to Birchmount Road could have reflected, as Mr. Partington suggested, not Mr. Benoit's seeing the marked police car, but simply care in making a safe turn. Similarly, it is possible that the reason Mr. Benoit turned into another strip mall and drove through its parking lot without stopping was not to evade the police, but for some other unknown reason. It is also possible that Mr. Benoit's reason for wanting to avoid the police, if that was his intention, could have been because his driver's licence was suspended, not because he had had too much to drink. Likewise, as the officer conceded, the unusual left turn signal was consistent with a distracted driver and not only with someone impaired by alcohol.
107The evidence obtained after Mr. Benoit was stopped, however, clearly established that his ability to drive was impaired by alcohol at the time. The evidence to be considered includes the odour of alcohol on his breath when he spoke, his bloodshot and glassy eyes, and his slurred and hesitant speech. Even making allowance for the possibility of a natural tendency to slur one's words (bearing in mind as well that the defendant's testimony was heard only on the Charter voir dire and not on the trial itself), Mr. Benoit sounded obviously intoxicated when he first spoke to the officer.
108The clearest evidence of the degree of the defendant's impairment, it seems to me, was the audio recording of Mr. Benoit's utterances while he was in the back seat of the cruiser after his arrest. Without suggesting that unimpaired people cannot also be vulgar and obnoxious, the defendant here unwittingly demonstrated that he was under the influence of alcohol, yelling in a completely disinhibited and incoherent manner, with slurred speech and an abusive and angry tone. The only reasonable conclusion, I am satisfied, is that he was significantly affected by the alcohol he had consumed and that his ability to drive was clearly impaired as a result.
109The recordings of Mr. Benoit at the police station do not leave me in a state of reasonable doubt concerning his impairment by alcohol that he had already conclusively shown.
110Since the Crown has proved all of the elements of the impaired driving charge beyond a reasonable doubt, there will be finding of guilt on that charge as well.
Disposition
111A conviction will be entered on either the impaired driving or the over 80 charge, as the Crown directs. A conditional stay will be entered on the other charge.
112A conviction for driving under suspension, contrary to the Highway Traffic Act, will also be registered.
Released: June 20, 2019
Signed: Justice David A. Fairgrieve