His Majesty the King v. Mario Mendonca, 2024 ONCJ 216
DATE: January 10, 2024 ONTARIO COURT OF JUSTICE
HIS MAJESTY THE KING
v.
MARIO MENDONCA
BEFORE THE HONOURABLE JUSTICE B. BROWN on January 10, 2024, at TORONTO, Ontario Courtroom 806
APPEARANCES: M. Goldenberg, Counsel for the Crown Ms. L. Adler, Counsel for Mario Mendonca
Reasons for Judgment
BROWN, J: (Orally)
Mr. Mario Mendonca stands charged with on Sunday, November 14th, 2021, operating a conveyance while his ability to operate it was impaired, to any degree, by alcohol or a drug, or both, contrary to section 320.14(1)(a); and within two hours of operating a conveyance, having a blood alcohol content in excess of 80 milligrams of alcohol in 100 millilitres of blood, contrary to section 320.14(1)(b) of the Criminal Code.
The Crown proceeded summarily. The defence filed a Charter application arguing that there were breaches of sections 10(a) and 10(b) and requesting a 24(2) exclusion of evidence. The defence also argued that there had been breaches of section 7 and 11(d), related to a breach of the Toronto Police Service directive. There were other Charter issues raised along the way as well.
The court held a blended voir dire in the midst of the trial. Other Charter issues were alluded to by the defence after the conclusion of evidence. Identity was not an issue, nor was the working of the intoxilyzer in this case. The Crown called Sergeant Len Nicholson (the investigating officer), PC Jordan Brooks (the arresting officer) and his partner PC Braden McKellar, together with Officer John Long (the qualified technician). The defence called no evidence on the blended voir dire, nor on the trial proper.
The issues in this case relate predominantly to the Charter, sections 7, 8, 9, 10 and 11(d) on the over 80. The defence argued that the demand that was made, argued to be the first demand by the qualified technician, did not meet the requirements of the Criminal Code.
There was later a realization by the court that that was not the first breath demand that was made in this case. The defence made no other arguments regarding the over 80 charge, other than the Charter arguments. On the impaired charge there were no submissions but the court considers whether the Crown has proven that charge beyond a reasonable doubt.
In the course of the defence there was also an argument that the police had failed to comply with the Toronto Police Service directive regarding taking notes, particularly with respect to signs of impaired ability, in their notebooks. This argument is considered below in the section related to the consideration of evidence of Sergeant Nicholson and Officer McKellar.
Uncontradicted Evidence
At approximately 2:18 a.m., on Sunday, November 14th, 2021, Sergeant Nicholson was driving his marked scout car eastbound on College Street towards Bathurst Street, in the City of Toronto. On the southwest corner of College and Bathurst is a Green P parking lot, with an entrance on the west side of Bathurst, south of College.
At approximately 2:18 a.m., as Sergeant Nicholson turned right on Bathurst, he noticed a small silver car traveling eastbound through the parking lot, which was later indicated to be operated by Mr. Mendonca. This vehicle then came out of the parking lot and turned right to go southbound on Bathurst. After the vehicle pulled over and stopped, Sergeant Nicholson ran the license plate for the vehicle. The vehicle was owned by a woman who lives in the Woodbridge area. The officer noted that the vehicle did not have any rear taillights turned on.
Sergeant Nicholson was wearing a body worn camera and his video footage was played in court and put in evidence, together with the video clip from his in-car camera, which show the driving prior to the vehicle stop. This court has watched the in-car camera video very closely and multiple times. It was played in evidence. The court would note that the in-car camera showed Mr. Mendonca's vehicle come out of the parking lot and almost hit a vehicle coming from the opposite direction. There was no contact as there was a correction to avoid a collision.
The body worn camera footage of Sergeant Nicholson shows him approach Mr. Mendonca, who had left his vehicle and was standing on the roadway as the officer approached. Mr. Mendonca started the conversation by saying to the Sergeant"How are you" and Sergeant Nicholson saying"Are you okay." Other portions of the evidence of Sergeant Nicholson are noted below.
After Sergeant Nicholson was chasing Mr. Mendonca but was unable to catch him, he put out a radio call for being in pursuit. This radio transmission was transmitted to all officers in 14 Division. Sergeant Nicholson said in the radio transmission"Male, white, it's going to be an impaired driver."
PC Jordan Brooks heard this call, advising Sergeant Nicholson was in foot pursuit. He was in the area with his partner, PC McKellar, around the corner on Euclid Street. The two officers then got in their police vehicle and proceeded towards College and Bathurst, where they saw Sergeant Nicholson pointing in a direction towards Mr. Mendonca with a flashlight, which was shown in video in evidence. As Sergeant Nicholson ran through the laneway he said"right there" as he was on the radio, pointing out Mr. Mendonca by pointing his flashlight where Mr. Mendonca was located. Mr. Mendonca ran across College Street, east of Bathurst, and then went down an alleyway and then down another alcove off the alleyway.
PC Brooks drove the police cruiser with PC McKellar, as the front seat passenger, down a laneway where they located Mr. Mendonca. This was in the area of Croft, 20 feet north of College but east of Bathurst. PC Brooks arrived first to grab Mr. Mendonca before PC McKellar. The defence has argued that PC Brooks' omission to turn on his body worn camera as he left the police cruiser in foot pursuit of Mr. Mendonca was a Charter breach. Both officers grabbed him, took him down to the ground and handcuffed him. It was 2:22 a.m.
PC Brooks had information regarding Mr. Mendonca. First, as a matter of coincidence, PC Brooks had been investigating a break and enter in relation to a call at 2:01 a.m., on Euclid, and the accused had driven up in his vehicle, honking and yelling out the window of his vehicle. Mr. Mendonca was yelling at the driver in front of him on Euclid. He was approximately 10 feet from PC Brooks. PC Brooks told Mr. Mendonca to stop because it was so noisy, he told him they were trying to do an investigation.
In cross-examination, PC Brooks testified that Mr. Mendonca's behaviour on Euclid was peculiar, since there were many police officers on the street and that is why the car in front of Mr. Mendonca was slowing down. PC Brooks did not believe that Mr. Mendonca responded to that comment. Mr. Mendonca did not really speak to the officer. PC Brooks did not notice anything about his eyes. After that, PC Brooks had information that Mr. Mendonca had been driving erratically and had gotten out of his car and that there was a foot pursuit. He doesn’t remember the exact specifics of what had been put over the air.
Mr. Mendonca was searched when he was down on the ground. He was placed under arrest for impaired driving at 2:24 a.m., by PC Jordan Brooks. The arrest was recorded on the body worn camera of PC Brooks. Shortly after, PC Brooks read Mr. Mendonca rights to counsel. Mr. Mendonca was very upset at the time. He made a comment about reporting PC Brooks for hurting him.
It seems from the evidence that Sergeant Nicholson arrived shortly after Mr. Mendonca was apprehended and arrested. When he arrived in the area, Sergeant Nicholson said he's going to be under arrest or he's under arrest for impaired. He later clarified he said that he's going to be under arrest for impaired, however Sergeant Nicholson testified that the officers actually told him that he was under arrest at that time for impaired.
PC Brooks testified he is the officer that arrested Mr. Mendonca for that charge. PC McKellar is the officer who cuffed him. Shortly after PC Brooks and PC McKellar walked Mr. Mendonca to the police cruiser. The body worn camera of Officer 4813, which the court believes is PC Brooks, depicts that at 2:24:35, Mr. Mendonca was advised he was under arrest for impaired operation of a motor vehicle. Mr. Mendonca responded by saying"Hey Bryan Adams, how are you doing", seemingly referring to PC Brooks. The officer said"I’m going to read something to you now, the time is 2:25." He repeated that "you are under arrest for impaired operation of a motor vehicle" and he advised him of rights to counsel. Officer Brooks then asked if he understood that. The accused, Mr. Mendonca said"No, I don’t understand one word that you said. Can you repeat that again?" Rights to counsel were then repeated by the officer. The officer then again asked Mr. Mendonca if he understood and Mr. Mendonca said no. The officer then read the primary caution and asked do you understand. Mr. Mendonca said"No, I don’t." The officer said"I do believe you understand", it was at that point 2:27 a.m. Mr. Mendonca then responded"What are you, a psychic?"
At 2:31 a.m., PC Brooks read the proper breath demand for an intoxilyzer sample to Mr. Mendonca. Mr. Mendonca was asked if he understood and at that point Mr. Mendonca responded"Of course." There was an exchange of Mr. Mendonca going back and forth asking the officer questions. Mr. Mendonca agreed to go with the officers to provide the breath sample. The officers left the scene at 2:34 a.m. The court would note that the body worn camera evidence of the officers shows Mr. Mendonca was slurring his words.
PC Brooks and PC McKellar left the scene of the arrest with Mr. Mendonca at 2:35 a.m. and proceeded to 41 Division, arriving there at 3:02 a.m. for the purpose of breath tests. The dispatcher advised that the nearest available technician that night was at 41 Division. The booking officer advised that the Scarborough qualified technician, located at 41 Division, was the only qualified technician working in the city at that time.
When they arrived, there was one scout car ahead of them in the sallyport area. The officers had to wait for the parade, which began at 3:38 a.m. and finished at 3:49 a.m.
PC Brooks and PC McKellar presented Mr. Mendonca to the booking officer and the video depicts advising the booking officer that he was under arrest for impaired, had been read the rights to counsel a few times but there was a belief that he might be too intoxicated to understand. The body worn camera video shows that Mr. Mendonca was read rights to counsel a number of times, as indicated, and each time Mr. Mendonca stated he did not understand, although he did not appear, to this court, to properly listen to what the officers were saying to him.
Mr. Mendonca, at the police station, spoke to his lawyer for rights to counsel and at 3:55 a.m., he was escorted to the breath room by PC McKellar for breath tests. The video of the breath room started at 4:14 a.m. The video shows PC McKellar advise the qualified technician, Officer Long, that his partner, which the court would note would be Officer Brooks, read the breath demand to Mr. Mendonca. Officer Long said he was going to read the breath demand again anyway, which he did at 4:15 a.m.
It took several attempts before Mr. Mendonca provided a suitable sample. Officer Long testified that the reading of the first sample was 182 milligrams of alcohol in 100 millilitres of blood at 4:21 a.m. and at 4:41 a.m., the second reading was 183 milligrams of alcohol in 100 millilitres of blood. A certificate was filed in evidence reflecting truncated readings for the two samples of 180 milligrams each, at 4:21 and 4:43 a.m. After the tests were completed, Mr. Mendonca was taken from 41 Division to 14 Division, arriving there at 5:50 a.m.
Analysis
Mr. Mendonca is presumed to be innocent. The Crown must prove his guilt beyond a reasonable doubt. The defendant has no burden to prove anything, to explain anything, or to persuade the court of anything. The principle of reasonable doubt also applies to the issue of credibility. The assessment of credibility is not a matter of choosing between competing versions or determining which is more credible or to be preferred. Where the defendant has testified or called evidence from other defence witnesses, or where there is exculpatory evidence that has been elicited from other witnesses in the trial, that evidence is entitled to the benefit of the application of reasonable doubt in the assessment of credibility and the fact finding that follows. If that evidence is believed and it affords a defence, the defendant is entitled to an acquittal. Even if that evidence is not believed, in the sense of believing it to be true, if it nonetheless raises a reasonable doubt, the defendant is entitled to that doubt and an acquittal will follow. Even if that evidence is rejected, the Crown must still prove guilt beyond a reasonable doubt, based on all of the evidence in the trial. A determination of guilt or innocence must not turn into a credibility contest between two witnesses, or a bipolar choice between competing evidence called by the Crown and by the defence. This approach would erode the presumption of innocence and the burden on the Crown of proving guilt beyond a reasonable doubt. The court applies the law as set out by the Supreme Court of Canada in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.) and other appellate case law dealing with credibility and the consideration of evidence.
It is to be noted that there was no defence evidence called in the blended voir dire, which evidence is to be considered on the trial proper if the relevant blood alcohol content readings and evidence regarding impaired ability are ruled admissible in the trial. Nonetheless, the court does consider exculpatory evidence arising from other sources in the trial.
Evidence of Sergeant Len Nicholson
Sergeant Nicholson was a road sergeant, working in a marked scout car, in uniform, out of 14 Division of the Toronto Police Service. He had been a police officer for 25 years. On Sunday, November 14th, 2021, he was working a night shift. He started at six p.m. the previous night and the shift ended at six a.m. on November 14th. He saw the small silver car, later identified as having been driven by Mr. Mendonca, at a high rate of speed and testified that it bounced a little bit as he was driving it. He testified that after the vehicle came out of the parking lot; it barely avoided a collision with a vehicle driving northbound on Bathurst, then Mr. Mendonca's car kind of gained control. It proceeded in the southbound lanes at Bathurst.
Sergeant Nicholson decided to stop this vehicle due to the reckless driving out of the parking lot and onto Bathurst Street. Sergeant Nicholson turned on his lights to indicate he was behind. He did not believe he activated his siren. He did this after seeing what he described as the reckless driving and he pulled over approximately 100 metres south of the parking lot, on the right side of Bathurst and stopped.
The purpose of stopping Mr. Mendonca was to see why he was driving in such a reckless manner. Sergeant Nicholson was investigating him for impaired driving. He testified that he made observations of Mr. Mendonca after he left his vehicle. He noted that Mr. Mendonca was unsteady on his feet as he was getting out of his vehicle. Mr. Mendonca looked kind of confused and to Sergeant Nicholson, in his experience, those are clear signs of intoxication.
He estimated he has dealt with approximately 100 impaired drivers over his 25 years of experience, it might be more, it might be less. He has also dealt with people who were drunk from clubs, domestic incidents and has observed signs of impairment from alcohol and drugs.
He also noted a quick whiff of him, that is a smell of a bit of alcohol off of Mr. Mendonca's breath, as he was close to him near the car. It is to be noted that after Sergeant Nicholson stopped his vehicle and before he approached Mr. Mendonca, the sergeant put on a Covid facemask over his face, which would have compromised the ability to pick up any odour, such as an alcoholic beverage.
In the exchange with Mr. Mendonca, as Sergeant Nicholson stood on the roadway, he told Mr. Mendonca that he was investigating him because of the way he exited the parking lot. The officer did not ask for driver's license, registration and insurance. He did not note the odour of alcohol in his notes. He did note in his book that there were signs of impairment. He noted that he felt he was impaired.
It is interesting that Mr. Mendonca, after leaving his vehicle before the arrival of the police officer, was near his vehicle. Mr. Mendonca then locked his vehicle, which he had parked and stopped only ten seconds into the conversation with the officer. As the officer asked him where he lives, Mr. Mendonca spoke with his head down, in a way difficult to understand the court would note from the video clips. The officer told him he was on body camera and Mr. Mendonca said okay. Sergeant Nicholson then repeated the same question about where Mr. Mendonca lived. As indicated, Mr. Mendonca locked his vehicle remotely with his keys as the officer was speaking with him. Mr. Mendonca told the officer to watch his back as a streetcar went by and then, in what the court would describe was a continuous motion, Mr. Mendonca turned and left the officer. In under 30 seconds Mr. Mendonca went from stepping out of his car, to turning his back on the officer and walking away from the uniformed officer. The officer told him to "come here". Mr. Mendonca responded by proceeding across Bathurst Street. Sergeant Nicholson went after him and said"Hang on. I'm not finished with you. Hold on for a second." The officer reached out to grab Mr. Mendonca and Mr. Mendonca raised his arm away from Sergeant Nicholson and proceeded to run away. Mr. Mendonca was in full flight from Sergeant Nicholson at 40 seconds after he had originally left his car.
At 2:20:23, Mr. Mendonca turned and left and Sergeant Nicholson said"I'm not finished with you." He did not tell Mr. Mendonca that he was in investigative detention, nor that he was requesting paperwork pursuant to the Highway Traffic Act. As Mr. Mendonca started to leave, Sergeant Nicholson grabbed his elbow. It was at that point 2:20:25.
Although this was never asked in cross-examination, the defence submission at the end of the trial was that Sergeant Nicholson, as the streetcar went by on Bathurst, pushed Mr. Mendonca into his car. The body worn camera captures this portion of the exchange and the court would note that there was no push of Mr. Mendonca. If anything, the officer touched Mr. Mendonca's chest gently with his finger while Mr. Mendonca moved back towards his car and then turned to walk away.
Although this was never asked in cross-examination, the defence submission at the end of the trial was that Sergeant Nicholson hit Mr. Mendonca in the head with his flashlight. The defence relies on body worn camera video for this submission. The court would note that the body worn camera does not show the officer striking Mr. Mendonca in the head with the flashlight. It shows Sergeant Nicholson use his left hand to grab Mr. Mendonca's upper arm and to raise his right hand as Mr. Mendonca broke off physical contact and started to run away. There is no evidence to support the defence submission that Sergeant Nicholson struck Mr. Mendonca in the head with a flashlight.
Defence counsel submitted that Mr. Mendonca ran away as a result of these assaults by Sergeant Nicholson on Mr. Mendonca. In final submissions, defence made an application for a mistrial, arising from his failure to cross-examine Sergeant Nicholson about these two allegations of assault, which was denied by the court. Submissions then continued from defence counsel.
Sergeant Nicholson testified that if Mr. Mendonca had not run away, he would have asked questions with respect to whether he consumed any alcohol, told him he could smell alcohol, and told him he was investigating him for impaired or that he was under arrest for impaired. He would have asked him for his license and registration. (It is to be noted that Mr. Mendonca left the scene of the investigation in under 30 seconds after he got out of his vehicle and then began to run from Sergeant Nicholson ten seconds after that.)
In cross-examination, Sergeant Nicholson agreed that he did not ask Mr. Mendonca if he had been drinking, nor any questions about drinking, nor did Sergeant Nicholson say to him that he smells alcohol. In cross-examination he was asked about not stating in the radio transmission the earlier driving he had observed, nor the time of the driving, nor his specific observations. He indicated he didn’t have time to do this.
Sergeant Nicholson told PC Brooks and PC McKellar, whomever of the two officers was not driving, in a cell phone call, as they drove to 41 Division for breath tests, a quick rundown of what had happened, a Cole's notes version according to Sergeant Nicholson. He indicated that he observed Mr. Mendonca in the car driving and he believed that Mr. Mendonca was impaired based on his observations when he stopped him. He told the officer that Mr. Mendonca was under arrest for impaired and that he had almost smashed into a car and that he ran off from him. He told him what he thought his level of impairment was at the time. He did not note that he had called them on their cell phone, nor what he had told them.
Sergeant Nicholson did not arrest Mr. Mendonca for impaired. He explained in cross-examination that the other officers had arrested him based on the information he had given them. He told the officers he was under arrest for impaired, in cross-examination, although his evidence was somewhat confusing as to who he was referring to as telling them he was under arrest. This arises from the playing of video where four officers had arrived on scene to catch and restrain Mr. Mendonca at the time. Sergeant Nicholson did not give Mr. Mendonca rights to counsel and he did not hear another officer give him rights to counsel on the way to the cruiser.
Sergeant Nicholson was cross-examined about not noting in his memo book that he had noted any odour of alcohol on Mr. Mendonca. He was asked about the mandatory requirement to do so, pursuant to the Toronto Police Service procedure for vehicle investigations, described as 0706 - Ability Impaired Over 80 Milligrams Objective, marked as Exhibit 4, page two. He explained that he wrote the other signs of impairment; unsteady on his feet, confused. It is to be noted that this was a very dynamic situation arising from the behaviour of Mr. Mendonca running from the officer as he was just starting the impaired investigation.
PC Jordan Brooks
PC Brooks has been a police officer for nine years. He was in full uniform on November 14th, 2021, driving a marked police car, with PC McKellar as his partner and passenger. He heard the radio call for Sergeant Nicholson, advising he was in foot pursuit of a male and he was right around the corner from him on Euclid. He and his partner got in their vehicle and proceeded towards College and Bathurst and then down a laneway.
PC Brooks testified he arrested Mr. Mendonca based upon what Sergeant Nicholson had put over the air, that this was an impaired driver and he had ran. PC Brooks did not testify as to giving Mr. Mendonca the breath demand. However, the in-car camera video evidence in this trial shows that he did read the proper breath demand to Mr. Mendonca after placing him under arrest for impaired and reading rights to counsel. PC Brooks did not remember if he gave any information to the qualified technician. The court notes that the breath video shows PC McKellar telling qualified technician Long that Brooks had read the breath demand earlier and also shows PC McKellar providing the background information to qualified technician Long. The rest of the evidence of PC Brooks is noted above in the uncontradicted evidence section of the reasons.
PC Braden McKellar
PC McKellar had worked as a police officer in 14 Division for three years. Judging from the day he gave evidence, he would have had approximately one and a half years experience when he was involved in this investigation. He assisted his partner, Officer Brooks, in arresting Mr. Mendonca. He had been a passenger in the cruiser driven by PC Brooks. After the vehicle stopped, PC Brooks parked the car and made it to the area of Mr. Mendonca slightly before PC McKellar, the passenger, made it there.
His evidence was that Mr. Mendonca appeared to be intoxicated. He wrote in his notes"2:22 a.m., arrest male behind 398 College Street. Extremely intoxicated." Later he crossed that out in his notes and wrote the same thing again. He could not recall why he had done that.
PC McKellar had the least experience of all of the police officers giving evidence in this trial. He testified that Mr. Mendonca was slurring his words, appeared to be confused, was unsteady on his feet and somewhat readily aggressive. In cross-examination, he explained that Mr. Mendonca was unsteady on his feet when he was walked to the police car. The officer could not recall if he was wearing a Covid-19 facemask.
He and PC Brooks were cross-examined about various comments they made to Mr. Mendonca, including "If you move your hands, it will go very bad for you", meaning that he would be arrested and they would defend themselves and use the appropriate force necessary if he posed a threat. At one point, Officer McKellar told Mr. Mendonca to shut up, a comment he acknowledged was made with adrenaline after the chase and was not necessary.
He was cross-examined about not making any note regarding any odour of alcohol and he did not recall why he did not make notations of that. The court considered the defence argument that he did not comply with the TPS directive that officers are required to make notes of observations of impaired ability in their notes.
This court finds after considering all of this officer's evidence, with the video evidence, and the evidence of the other officers, that Officer McKellar was somewhat of a junior officer. He did not write his notes properly, perhaps related to all that was going on at the time, including the pursuit, his sergeant attending for the arrest, and the behaviour of Mr. Mendonca being somewhat challenging on scene. The court finds that Officer McKellar was not sufficiently organized and experienced to take proper and fulsome notes of his observations. The court would note though, as noted below, that many portions of the time were recorded on body worn camera or in-car camera video clips in evidence, such that the deficiency of taking some of the notes was mitigated to a degree. That would not however include smells, which are not recorded on video.
En route to the police station, Mr. Mendonca's behaviour changed from very angry to stating that he respected the two officers, what they do, and respects their jobs. He was saying God bless everybody and he was very happy. He was speaking about his family and other information, being repetitive and in a cycle with his behaviour.
At the police station Mr. Mendonca was unable to keep track of time properly and believed that PC McKellar had been away for an hour when it had only been five or ten minutes. Mr. Mendonca gave him a phone number for his lawyer, which was 416-5161. This was not a correct full Toronto phone number, nor was it the number for his lawyer. As it turned out, Mr. Mendonca's phone number was 416-887-5161. PC McKellar did call Mr. Adler, the correct phone number, for his consultation with counsel.
After that consultation, PC McKellar took Mr. Mendonca to the breath room. PC McKellar could not recall if he spoke to the qualified technician, providing him with any information. However, as noted above, the breath video shows that PC McKellar did speak with qualified technician Officer Long and related information to him. It does not appear that he told Officer Long that Mr. Mendonca had glossy bloodshot eyes. This is an inconsistency, however one might find to be relatively minor relative to the rest of the observations in evidence. The rest of his evidence is, as noted above, under the uncontradicted evidence section of the reasons.
Qualified Technician Officer John Long
Officer Long has been a police officer for 35 years. He became a qualified technician on June 17th, 2015. He testified that Officers Brooks and McKellar brought Mr. Mendonca to the interview room and he had a conversation with one of the officers regarding the arrest, but he could not recall which officer. He received information that the officer stopped the accused in a motor vehicle. He had committed a Highway Traffic Act offence. The vehicle was stopped. The accused exited the vehicle and ran from his vehicle. The officers chased him for a short distance and then arrested him. They noticed he had glassy, bloodshot eyes and when they conversed with him, he had slurred speech. He was arrested for impaired operation and advised of his rights to counsel and the breath demand for the approved instrument. He was also advised that he had spoken to his lawyer of choice.
At approximately 4:15 a.m., Officer Long read to Mr. Mendonca the breath demand. He does this in case there is a mistake in reading the demand or the subject did not understand it earlier in the investigation. In his dealings with Mr. Mendonca, both he and Mr. Mendonca were wearing a facemask, however Officer Long detected a strong odour of an alcoholic beverage coming from Mr. Mendonca's breath. At the time Mr. Mendonca also had glassy, bloodshot eyes. His speech was slightly slurred and fast. Officer Long did not pay attention to his walking as he entered or exited the breath room. He was cooperative and polite. Officer Long gave evidence of his opinion that the overall effect of alcohol on Mr. Mendonca was a noticeable effect and that he believed that Mr. Mendonca's ability to operate a motor vehicle was impaired by the consumption of an alcoholic beverage.
For the first sample, Mr. Mendonca made three or four unsuccessful attempts to provide a suitable sample because he was not blowing long or hard enough. For the second sample, he provided a suitable sample on the first attempt. While Officer Long related to the court the information provided by Officer McKellar, it does appear that there is an error in referencing Officer McKellar telling him that Mr. Mendonca had glossy, bloodshot eyes. That was an observation made by Officer Long and not one which was related by Officer McKellar in stating grounds, one which the court has considered in the overall assessment of credibility.
A portion of the evidence of Officer Long, including the blood alcohol reading evidence is noted elsewhere in the reasons of the court. The court will also allude to, later in the reasons, reference to the grounds as far as the driving and the accuracy of that as it was conveyed to Officer Long.
Consideration of Evidence and Findings of Fact
Sergeant Len Nicholson's evidence is considered by the court in light of two independent sources of evidence, being the in-car camera video and the body worn camera video clips showing portions of his dealings with Mr. Mendonca. This is of great assistance to the court.
Sergeant Nicholson gave his evidence in a forthright manner and he was consistent in giving his testimony, both within itself and as compared to the video evidence. He made admissions against interest, including the failure to make more detailed notes as to the symptoms of impaired ability and his failure to note his cell phone call to the uniformed officers who were transporting Mr. Mendonca for breath tests.
In terms of observation of impaired ability, he noted signs of impairment, the unsteadiness on his feet and the look of confusion, but did not specify the odour of alcohol. The apparent confusion of Mr. Mendonca was shown on the video evidence at the roadside, as seen by the court. However the court bears in mind the unique circumstances of this case and the clear fact that Sergeant Nicholson interacted with Mr. Mendonca a very short period of time before Mr. Mendonca ran away from him. As a result, Sergeant Nicholson had to engage in a pursuit, while getting on his radio, and providing brief information on the radio for assistance. There is no doubt that his attention was divided in the minutes that followed this short interaction.
After he continued his pursuit and saw that Officers McKellar and Brooks had arrested Mr. Mendonca, he had to leave the scene to attend to another call. Sergeant Nicholson was the uniformed sergeant for the team of uniform officers working in that division that night. He left the two officers to continue the investigation, which would have included any breath tests.
The court would note that Sergeant Nicholson did not exaggerate matters and that his evidence made sense. Firstly, the court would note that he was wearing a Covid-19 facemask when he interacted with Mr. Mendonca. This would have affected his ability to detect the smell of an odour of an alcoholic beverage emanating from Mr. Mendonca when they spoke. Sergeant Nicholson testified that he noticed a quick whiff of him, a smell of a bit of alcohol off his breath. He noticed the smell near the car and as Mr. Mendonca left.
The court would also note that other officers noted the odour of an alcoholic beverage in the minutes that followed. Officer Braden McKellar gave evidence regarding the odour of alcohol on Mr. Mendonca, but he did not put that in his notes. Officer John Long, the qualified technician, testified that he detected the strong odour of an alcoholic beverage coming from Mr. Mendonca's breath and that was while both parties were wearing Covid-19 facemasks. He dealt with Mr. Mendonca before and after 4:15 a.m. In that respect, there is consistency in the evidence of witnesses that Mr. Mendonca's breath did emit the odour of an alcoholic beverage.
Secondly, the court would note that Sergeant Nicholson testified he telephoned the uniformed officers as they drove Mr. Mendonca to the police station for breath tests. He did not record that phone call in his notebook. He spoke to the officer who was not driving. The officer who was not driving was Officer McKellar. Later, Officer McKellar was the officer who took Mr. Mendonca into the breath room and spoke to Officer Long. It is evident from the information provided by Officer McKellar back to the qualified technician that Officer McKellar had information in addition to what Sergeant Nicholson had said on scene and in the radio transmission for the foot pursuit.
From the video clips at the scene, it appears that Sergeant Nicholson did tell the officers that Mr. Mendonca was or would be placed under arrest for impaired and that he had almost smashed into a car. It did not seem that he told PC Brooks or PC McKellar anything else on the scene of the arrest. It is to be noted that PC McKellar was the officer who had an exchange with the qualified technician, as shown on the breath room video.
Officer Long noted the information he had been provided as Mr. Mendonca had been stopped in a vehicle and that he exited the vehicle and then ran from the vehicle. He was also told about glassy bloodshot eyes and slurred speech. The information he relayed in his evidence was that the officers had stopped Mr. Mendonca, not that Sergeant Nicholson had stopped Mr. Mendonca and made the observations regarding Mr. Mendonca involved in a Highway Traffic Act offence. In that respect, there is somewhat of an inconsistency in terms of which police officers made the observations of prior driving and initial physical observations as related to the qualified technician.
While the defence challenged his evidence that Mr. Mendonca barely avoided a collision with a vehicle driving northbound on Bathurst, the court would note that this is a matter of perspective. While the parties in court had a video that was played, replayed and replayed again showing driving in the dark, Sergeant Nicholson made the observations in the moment, in the dark. There is no doubt this court would find that Mr. Mendonca's vehicle swerved towards the vehicle in the oncoming direction and then corrected.
The court would note that Sergeant Nicholson was not able to view the in-car camera video evidence until he had already given his viva voce testimony as to the driving. The court finds that he did not overstate or exaggerate the nature of the driving and the court would note that the defence did not challenge his observations as forming a proper basis for making the vehicle stop. The court finds the in-car camera video of the driving largely consistent with the testimony of Sergeant Nicholson on this point. His testimony was also consistent with the audio of the radio dispatch he made while starting the pursuit of Mr. Mendonca.
The court finds that despite a penetrating cross-examination, Sergeant Nicholson was not shaken. In all material respects, the testimony of Sergeant Nicholson was credible and reliable and confirmed by the video clips and evidence of the other officers. The court accepts the evidence of Sergeant Nicholson as credible and reliable and the basis of facts found by the court arising from his evidence.
Officer Brooks was challenged in cross-examination but withstood that challenge. Most of his evidence was confirmed by video clips and evidence. His evidence was not contradicted in any material way by other witnesses or evidence in this trial. He did not appear to exaggerate evidence potentially damaging to Mr. Mendonca's case, particularly with respect to the earlier encounter when he saw Mr. Mendonca drive by a scene where he was doing another investigation and the appearance and behaviour of Mr. Mendonca at that time. He did not overstate events. If he did not remember something, he said so. This included that he did not recall giving to Mr. Mendonca the breath demand. The in-car camera video, however, assists the court in that regard, showing that he did read Mr. Mendonca the breath demand. After reading rights to counsel to Mr. Mendonca many times, Officer Brooks made an admission against interest by admitting that he had said that Mr. Mendonca was a dumb criminal and was not able to talk properly. All of this was shown in video clips in evidence. The court finds that his evidence was credible and reliable and the court accepts his evidence.
Officer McKellar was the most junior officer, having only about one and a half years experience as a police officer before being involved in this case. His notes were somewhat deficient in terms of detail. In terms of observations of impaired ability to drive, he testified that Mr. Mendonca slurred his words, appeared confused, was unsteady on his feet and somewhat verbally aggressive. He did not make a note of odour of alcohol on his breath, although he did give that in evidence. It is notable, this court would find, that Mr. Mendonca was slurring his words on the video evidence in this trial, before he was taken for breath tests. It is difficult to detect on the video due to the angle of the recording whether there was any unsteadiness while he was walking with the police to the cruiser following the arrest. As noted elsewhere in the reasons, the qualified technician noted the strong odour of an alcoholic beverage coming from his breath.
Officer McKellar also made admissions against interest, not only in terms of items that he did but had not recorded in his notes, but also in relation to saying inappropriate things as he and PC Brooks arrested Mr. Mendonca. The court would also note that it appeared, as stated by the two uniformed officers, that as they chased Mr. Mendonca, both in the cruiser and on foot leading up to cuffing him, there was a lot of adrenaline. They were concerned about safety in that challenging situation and the court understands how that could affect what they said to Mr. Mendonca at the time. Overall, the evidence of PC McKellar was confirmed by other witnesses and the video evidence. The court found his evidence to be credible and reliable and the court accepts his evidence.
The qualified technician, Officer Long, was not challenged to any great extent in terms of credibility and reliability, however the court is mindful of the fact that there appears to be an error in his recollection that Officer McKellar told him that Mr. Mendonca had glossy and bloodshot eyes. It does not appear that happened. It does appear that Officer Long independently observed the glossy and bloodshot eyes. While this potentially impacts the credibility or reliability of Officer Long, the balance of his evidence was corroborated by the video evidence in the case. The court found his evidence, as supported by his notes and the video in the breath room, to be an accurate recording of events. The court accepts his evidence.
There is one separate issue which relates to portions of evidence where the defence submitted long after the evidence in the trial ended that the court should make adverse inferences from video clips without having asked the relevant officers questions about that evidence and the suggestion the defence would make in the future. The Crown has argued that pieces of material evidence that were not put to Crown witnesses as noted in Browne v. Dunn should have been put to the witnesses. That will be dealt with below. The defence has argued that the evidence as to blood alcohol readings and observations of impairment should be excluded arising from various Charter breaches noted below.
Browne v. Dunn Issue
The witnesses in this trial gave all of their evidence on April 3rd and 4th of 2023. The case was put over for submissions of counsel to July 14th, 2023, due to the schedules of counsel. The defence first raised the issues of objection by the Crown in these submissions over three months after the trial witnesses had testified. Then the matter was put over to September 8th, 2023, for final submissions. Again, in the intervening period and on September 8th, there was no request by the defence that the relevant Crown witnesses be recalled for further cross-examination. The Crown opposed recalling them given the lengthy passage of time and the overall time that this trial has been taking place, some five months at that point from the beginning of the trial. The Crown has argued that the defence should have put to the police officers questions in cross-examination related to subsequent defence submissions as to Sergeant Nicholson being alleged to have pushed Mr. Mendonca into the car and Sergeant Nicholson being alleged to have hit Mr. Mendonca in the head with the flashlight. The court would note later that the defence did not question the officers regarding the grounds that they had given to the qualified technician, Officer Long, as far as far as the subsequent defence submission that the information was intentionally misleading.
In considering this issue, the court notes that the defence had disclosure of all relevant evidence for this trial in advance, including numerous video clips from body worn camera and in-car camera videos taken relating to this investigation. As well, all of those clips were played in evidence during the testimony of the relevant officers while they were on the stand. There was no logical reason the court can see for the defence failure to ask the relevant questions related to subsequent submissions. The Crown raised an objection to the Browne v. Dunn issue as soon as the issue arose during defence submissions at the end of the trial, months after the conclusion of evidence. The case was put over for submissions from Crown and defence on the issue and counsel made submissions on the issue.
The rule of Browne v. Dunn (1893), 6 R. 67 (U.K. H.L.) . The rule stated in that case is as follows:
"Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue; but it seems to me that a cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards to suggest that he is not a witness of truth, I mean upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling."
The Supreme Court of Canada in R. v. Lyttle, 2002 SCC 9, [2002] S.C.J. No. 8, confirmed the application of the rule in Browne v. Dunn. The rule is grounded in commonsense and it is not an absolute rule. It is based upon fairness to the witnesses and the parties. Where counsel fails to confront a witness in cross-examination before impeaching the witness by contradictory evidence, the trial judge must consider the way in which the matter should be handled. In considering the matter, it is clear that the rule does not require that counsel go through every single minor detail on which a witness' testimony may differ from that of the accused. The rule dictates that the witness should be confronted with matters of substance upon which the accused seeks to impeach his or her credibility and upon which the witness has not been given an opportunity to comment. Where that does not take place, the judge must consider an appropriate response. The response of the judge to the failure to comply with this rule is a matter for the discretion of the trial judge. Various options have been considered by courts, including permitting counsel to recall the witness whose evidence was impeached to respond to the subsequent evidence. Another option gives lesser weight for the subsequent evidence which challenges that evidence. The rule is not triggered where the subsequent contrary evidence arose only in cross-examination of the subsequent witness.
In McWilliams' Canadian Criminal Evidence, 5th Edition, 21:113, the rule is summarized:
"Simply put, the witness should be confronted in cross-examination with any material point on which his or her credibility is to be challenged. A failure to do so may detract from the strength of the party's case or entitle the party who called the witness to a remedy. This, in a nutshell, encapsulates the nature and impact of the so-called rule in Browne v. Dunn as it operates today."
The court would note in R. v. Dexter, 2013 ONCA 744, Justice Weiler highlighted the rationale to prevent the witness from being "ambushed", at paragraph 19:
"The rule is also a rule of common sense. By enabling the trial judge to observe and assess the witness when he or she is confronted with contradictory evidence and given an opportunity to explain his or her position, the rule promotes the accuracy of the fact-finding process. In doing so, it enhances public confidence in the justice system."
In R. v. Quansah, 2015 ONCA 237, [2015] O.J. No. 1774 (Ont. C.A.), leave to appeal refused [2016] S.C.C.A. No. 203 (S.C.C.), Watt J.A. emphasized that the rule in Browne v. Dunn is rooted in fairness. He summarized the fairness considerations as follows, at paragraph 77:
i. Fairness to the witness whose credibility is attacked:
The witness is alerted that the cross-examiner intends to impeach his or her evidence and given a chance to explain why the contradictory evidence, or any inferences to be drawn from it, should not be accepted: R. v. Dexter, 2013 ONCA 744, 313 O.A.C. 226, at paragraph 17; Browne v. Dunn, at pp. 70-71.
ii. Fairness to the party whose witness is impeached:
The party calling the witness has notice of the precise aspects of that witness' testimony that are being contested so that the party can decide whether or what confirmatory evidence to call; and
iii. Fairness to the trier of fact:
Without the rule, the trier of fact would be deprived of information that might show the credibility impeachment to be unfounded and thus compromise the accuracy of the verdict.
As the case law has evolved, courts have also noted that the failure to provide the witness with an opportunity to respond leaves the judge without information to assess whether the credibility attack is founded or not and thus impact undermining the truth finding function of the court. Unwarranted harm may result with a party whose witness was not confronted is denied the opportunity for a proper response. Moreover, and most appropriately in this day and age, it can interfere with the orderly calling of witnesses if the remedy is to be recalling witnesses and this causes the waste of court resources and unduly complicates issues.
One of the factors that a trial judge can consider when this issue is raised is whether the subjects not touched on in cross-examination are of little significance given the issues in the case and the resolution of critical issues. If the matter is of minor importance, the harm done might be considered less by the trial judge. The rule requires confrontation on important significant or essential matters. The exercise is fact driven in each case. The factors to be considered by the trial judge, as set out in R. v. Dexter, supra, at paragraph 20, and R. v. Quansah, at paragraph 77, include the following:
- The seriousness of the breach;
- The context in which the breach occurred;
- The stage in the proceedings when an objection to the breach was raised;
- The response by counsel, if any, to the objection;
- Any request by counsel to re-open its case so that the witness whose evidence has been impugned can offer an explanation;
- The availability of the witness to be recalled; and
- In the case of a jury trial, whether a correcting instruction and explanation of the rule is sufficient or whether trial fairness has been so impaired that a motion for a mistrial should be entertained.
Typically, counsel in cross-examination pose questions to witnesses where they expect the witnesses to be called in their case might give a contrary version of events. Clearly the scenario raised first by the defence counsel, months after the evidence in the trial was concluded, should have been put to the Crown witnesses and the defence chose not to do so, denying the Crown witness the opportunity to respond to that scenario.
Given the considerable delay that has arisen in hearing this trial, the court finds that it would not be appropriate to further delay the case to recall Crown witnesses. If the contrary position emanated from the testimony of a witness, the court would have as a remedy potentially giving less weight to that evidence. However, in this case, there is no evidence, other than the video evidence upon which the defence suggests certain inferences should be made.
The court reviews very carefully the video evidence, together with the testimony of Sergeant Nicholson, to consider the defence suggestion that firstly, Sergeant Nicholson pushed Mr. Mendonca into a car and secondly, that he struck Mr. Mendonca in the head with a flashlight. The court has reviewed the relevant video evidence, which was played in court and provided to the defence much earlier as disclosure, and reviewed by the court after it was put in evidence.
The court finds, firstly, that Mr. Mendonca was not pushed by Sergeant Nicholson into the car. If anything, as indicated above, he touched Mr. Mendonca, it was not a push. Secondly, although Sergeant Nicholson raised his arm as he was in the process of trying to grab Mr. Mendonca as Mr. Mendonca was running away, the Sergeant did not hit him in the head with a flashlight, that is simply not shown in the video, it is a suggestion, a submission this court would find which is the nature of speculation by the defence, without proper evidence to support that speculative inference. There is no evidence whatsoever in the course of viva voce testimony to suggest that could have happened. Accordingly, the court specifically finds as a fact that Sergeant Nicholson did not push or strike Mr. Mendonca in this case.
Charter Issues
Initially, the Charter application related to section 9 for an improper arrest, sections 10(a) and 10(b) for not being given the informational component of rights to counsel and then a delay in exercising rights to counsel. The defence had submitted there was a section 7 breach arising from not recording everything on video the way Mr. Mendonca was handled and section 11(d) for failure to note all the signs of impairment in a notebook.
As often happens, the situation regarding Charter applications can change over the course of a trial. As a result, the court considers the Charter arguments as they are made at the end of the trial. The court would note that some of the submissions made by the defence as to possible breaches of the Charter are understood by the court. Unfortunately, it is not clear from what the court has found fairly confusing submissions the defence has made regarding complaints generally, various Charter breaches and then just general criticism, just what the Charter concern is in various regards. The court has tried to clarify with defence counsel on numerous occasions the arguments and will at this time just try to endeavour the arguments as best it can.
The court notes that the process of considering the arguments raised by counsel has also been complicated by the lengthy delays and broken up opportunities to consider submissions. Defence submissions were started on July 14th. The defence also filed written submissions at the same time, which he titled speaking notes. On that date, the Crown identified what it characterized as the Browne v. Dunn issue. The defence continued with its submissions, which included Charter issues raised by the defence. The defence completed its submissions in relation to the case. The case was then put over for the Crown to make submissions, including the Browne v. Dunn submissions.
In the intervening period, defence counsel sent to the court the paragraphs for cases on which to rely upon for the court. The case was then put over to September 8th for the Crown to make submissions for the case. The Crown made its submissions, which it concluded. The defence sought to make reply submissions, which it commenced at that time.
At the conclusion of oral submissions that day, the defence sought to have an additional opportunity to make what it referred to as completing its submissions, which was sought to be done in writing. The court agreed to give defence counsel this opportunity, with a deadline to provide the written submissions to the court by the beginning of November, which the defence indicated was its wish. The case was scheduled to be back before the court on November 8th to confirm that those submissions had been filed.
In the meantime, very shortly before that date, the court reached out to both counsel in relation to the court's discovery of critical evidence regarding the breath demand by PC Brooks at the scene, as shown in an in-car camera video clip in evidence. The court asked counsel to appear before the court for this video clip to be played, arising from the defence having argued that no breath demand had been made by either of the officers on scene as part of the Charter argument.
November 27th was scheduled as the date to play the video. On that date the court asked defence counsel why it had not filed its submissions pursuant to the deadline at the beginning of the month; the beginning of November, more than three weeks earlier. After an exchange, the court indicated its desire to complete this case given the multiple and lengthy delays. Defence counsel agreed to provide to the court its final submissions on Friday December 1.
No such submissions were received by the judicial assistants for this court, nor the trial coordinator office when the court reached out to all of those parties looking for the defence submissions. No court representative received any of the defence submissions until December 18th, 2023. It appears that defence counsel sent the submissions to an email address for the former Old City Hall Court Trial Coordinator. Old City Hall has of course been merged with all other Toronto courts as of the end of May 2023, at this new Toronto courthouse. Today's date has been selected for this court to release its reasons for judgment as the earliest date on which that could be done, given counsel's and the court's availability following the late arrival of defence counsel's submissions in December.
1. Sections 7 and 11(d)
It seems that the defence initially argued that there had been a section 7 breach, not from losing evidence but of failing to turn on the body worn camera earlier. As it relates to Officer Brooks, this court would note that he had been driving the vehicle, they were in hot pursuit of an escaping suspect and that the officer jumped out and ran after Mr. Mendonca in a dark alley. The court would understand that the officer failed to push the button to start recording in what was described as an adrenaline-producing event in pursuit of Mr. Mendonca.
The court would also note that there is no constitutional requirement to record this portion of evidence. This is not a situation where the officers deliberately chose to not record certain events, nor where it was recorded and not maintained to be given as disclosure. It simply was not recorded. The court finds accepting the reasoning in R. v. Kurmoza, 2017 ONCJ 139, at paragraph 17 that a police directive that recommends recording exchanges does not elevate the creation of the video as a constitutionally protected right.
As well, the court considers the Summary Conviction Appeal Court judgment in R. v. Khan, 2010 ONSC 3818, in that the failure to create evidence cannot be equated for constitutional purposes with the failure to preserve evidence.
In addition, this is not a situation of an expected interrogation of the accused, where courts have commented upon the advisability of recording such exchanges. There is no duty to create body worn camera evidence, such as in the case at bar, immediately in the course of the pursuit, when an officer is running down a laneway in the dark, endeavoring to catch a suspect.
While the defence relied upon the case of R. v. Azfar, 2023 ONCJ 241, that case considered an entirely different scenario where the officers had their body worn cameras running and they consciously decided to mute the video so as to not record an exchange they had with the accused about the investigation. The selective muting in Azfar denied the defence the opportunity to have disclosure of the nature of the exchange between the officers regarding the investigation. That is not the situation in the case at bar.
The onus is on the applicant on a balance of probabilities to prove a section 7 breach and the court finds that it is not made out in this case. There was no argument related to excessive use of force by the police officers in detaining and arresting Mr. Mendonca on the scene. While there is evidence that Officers Brooks and McKellar used force to get him on the ground, hold him there and place handcuffs on him, that was immediately after a police chase. There is also no indication of any injuries in the course of those events. The court does not understand the defence to be making any Charter claim in that regard.
Then the defence later made the submission that an officer had improperly put his knee on Mr. Mendonca's back after they took him down on the ground following the pursuit. The court disagrees that this would constitute a Charter breach, although it is not even clear if the defence is taking that position. Mr. Mendonca had just fled; they were holding him there by the knee on the back. The court would find that there was not undue violence or brutality in moments after putting on cuffs or immediately before, not anything close to the George Floyd killing scenario argued by the defence. If the defence is seeking to expand a Charter claim pursuant to section 7 in this regard, the court finds that there was no excessive force used to hold Mr. Mendonca on the ground after the pursuit in the circumstances following the pursuit.
In summary, the defence has failed to prove, on a balance of probabilities, any section 7 Charter breach in this case.
Section 9 - Arbitrary Detention
The defence submitted that there was a Charter breach in detaining Mr. Mendonca at the roadside. The Crown argues that it was not arbitrary, as it arose from a Highway Traffic Act offence. Sergeant Nicholson was in the process of speaking with Mr. Mendonca, asking first where he lives, after having run the vehicle in the police computer and finding it was owned by a woman north of Toronto and Mr. Mendonca indicating an entirely different area. Sergeant Nicholson was entitled to continue questioning him in that regard. The stop was first for a Highway Traffic Act offence and to potentially investigate impaired ability to drive. Sergeant Nicholson, in fact, advised Mr. Mendonca of the initial reason for the detention being the nature of his driving before the stop, an HTA offence.
The exchange between Sergeant Nicholson and Mr. Mendonca was very brief, being 30 seconds in length, before Mr. Mendonca started to run. Sergeant Nicholson made it clear that he was not free to leave, that he was not done with him. Clearly there was a detention but this court would find that it was not arbitrary. Sergeant Nicholson had detected the odour of alcohol, the prior driving which was of concern, that Mr. Mendonca was unsteady on his feet and he appeared confused. Mr. Mendonca ran away so quickly the court would find there was insufficient time for the officer to have been required to advise him of the reason for continued detention being in addition to the first reason related to his driving conduct and if he was okay, that being the additional reason being an impaired investigation.
Following the pursuit, Officers Brooks and McKellar had grounds to detain Mr. Mendonca and Sergeant Nicholson had advised them on the radio that it was an impaired driver, stating: "Male white, it's going to be impaired driver." Officer Brooks did not arbitrarily detain Mr. Mendonca, as he had the information from the radio transmission, the earlier evidence from seeing him minutes earlier in the evening on another street, and the information Officer Brooks and McKellar gathered in the minutes after they took Mr. Mendonca down on the ground. The court finds that the defence has failed to show that there was any arbitrary detention of Mr. Mendonca.
Arrest - Insufficient Grounds to Arrest for Impaired Driving
The defence has argued that the police had insufficient grounds to arrest Mr. Mendonca for impaired driving. However it is important to bear in mind that a police officer can rely upon hearsay information, such as from another officer, in forming the grounds for arrest. In this case, Officer Brooks placed Mr. Mendonca under arrest after being told by Sergeant Nicholson over the audio transmission requesting assistance in the police pursuit that "male, white, it's going to be impaired driver." The evidence of the officers is that they relied upon this transmission that it was an impaired driver emanating from Sergeant Nicholson. Mr. Mendonca had been pointed out as the person by Sergeant Nicholson prior to the officers taking him down to the ground. Added to that information, Officer Brooks had a prior interaction with Mr. Mendonca minutes before Sergeant Nicholson observed Mr. Mendonca. In that prior interaction, Mr. Mendonca had been driving and was honking his horn and yelling at another driver, acting in a peculiar way, as outlined in the reasons.
Officer McKellar testified Mr. Mendonca slurred his words, was confused, he did not make sense, and he was unsteady on his feet as he walked to the police car. He also noted that Mr. Mendonca's moods went from aggressive to friendly, which is depicted on the video clips. The officers can rely on the information from Sergeant Nicholson following the principles in the often quoted and followed Summary Conviction Appeal of R. v. Censoni. The court finds that the officer had sufficient grounds to arrest Mr. Mendonca for impaired driving and that there is no Charter breach in this regard.
Section 7 - Bad words used by each officer and by the accused
The defence submits that the comments made by Officers Brooks and McKellar constituted misconduct. It is unclear as to whether the defence argues that this is a section 7 breach of the Charter, arising from abusive comments of the police officers, or something else. One comment of the officers was "you're one of the dumbest criminals I've ever met". Officer Brooks explained that tensions were high and Mr. Mendonca had put their lives in danger, this court would note, by running from Sergeant Nicholson and causing the pursuit. Officer McKellar at one point told Mr. Mendonca to "shut up" and Officer McKellar agreed that was stated because of Adrenaline and that it was not necessary. Then at one point Mr. Mendonca said something, which is not able to be deciphered or understood on video by the court and Officer Brooks responded to that by saying "you can’t even talk." Then Mr. Mendonca said to him"you're an idiot."
It is apparent that there was an ongoing exchange at the time with Mr. Mendonca. The court considers a case provided by the defence and Crown of R. v. MJX, 2020 MBQB 184, which sets out at paragraph 12 the nature of the comments. There, the officer engaged in far more egregious language.
The court also considers the case of R. v. Marchildon, 2013 ONCJ 121 and in particular paragraph 16. A consideration of language in these circumstances is one of degree. In this case, while the officers were sober and should have acted professionally and not made these comments, they are far from a section 7 Charter breach, if that is the argument of defence counsel. The conduct was "too trivial to engage the fundamental values prescribed in the Charter." The court finds that there is no section 7 Charter breach arising from this defence submission.
Sections 10(a) and 10(b) - Giving and timing of rights to counsel
The court finds that Sergeant Nicholson, as set out above, properly advised Mr. Mendonca initially of the reason for the vehicle stop arising from his driving conduct prior to the stop, which was an HTA based ground. There was insufficient time, this court finds, for Sergeant Nicholson to properly identify Mr. Mendonca and advise him that the investigation was also for impaired driving, as Mr. Mendonca ran away from Sergeant Nicholson seconds after the stop.
The court considers R. v. Kumarasamy, 2011 ONSC 2114, a Summary Conviction Appeal Court judgment. The basis for the stop was proper as noted in paragraph 34 of the judgment. There is no doubt that Mr. Mendonca was detained in this stop. The Supreme Court of Canada noted in R. v. Orbanski; R. v. Elias, 2005 SCC 37 that the officer is permitted time to check the sobriety of the driver through various means without being required to comply with section 10(b). As noted by the Supreme Court of Canada, delay in providing rights to counsel in the context of this type of vehicle stop is justified by section 1 of the Charter.
The court also considers paragraph 38 of Kumarasamy that the officer stopping a vehicle for the screening process permitted by section 216 of the Highway Traffic Act can make those observations without giving rights to counsel as being justified by section 1 of the Charter.
The court considers what the accused is told is sufficient to permit a detainee to make a reasonable decision to decline to submit to arrest. The accused also knew he had come close to hitting a vehicle coming in the opposite direction on Bathurst, just prior to the stop. He knew he had ingested alcohol. In this case, Mr. Mendonca was told very early that the officer was investigating his driving. He ran away before the officer could pursue the proper screening for the vehicle stop. If there was any potential doubt as to whether he had to remain, Sergeant Nicholson very clearly told him he was not done with him, effectively telling him he had to stay there.
Subsequently, after Officer Brooks and McKellar caught up to Mr. Mendonca and took him down to the ground to stop him, at 2:21 a.m. they cuffed him, searched him for any weapons and placed him under arrest at 2:23 a.m. Mr. Mendonca was taken to the police car by the officers, at which time Mr. Mendonca was loud and aggressive. At 2:25 a.m. he was read rights to counsel. Mr. Mendonca kept talking loudly and interrupting. He was stating he did not understand. It was quite apparent, this court would note in reviewing the video, that Mr. Mendonca was trying to be difficult, stating he did not understand when it appeared he was not even listening on purpose. This caused the officer to have to read rights to counsel again. At times Mr. Mendonca was yelling. There was a delay of approximately two minutes and 24 seconds in giving rights to counsel. The court has considered R. v. Balatoni, [2003] OJ No. 5787 (Sup. Ct.), R. v. Debot, [1989] 2 SCR 1140, R. v. Strachan, [1988] 2 SCR 980, and R. v. Manninen, [1987] 1 SCR 1233.
The brief delay in this case, given that Mr. Mendonca had previously run from Sergeant Nicholson and the way he was acting justified some delay. It was necessary to stabilize the scene. It was also important to determine if Mr. Mendonca had any weapons on his person given that he had previously run from the sergeant. Police safety was at risk and this justified, this court would find, a short delay in giving rights to counsel. This was a situation where the officers had to act in the heat of the moment, after chasing Mr. Mendonca and taking him to the ground to subdue him and deal with him properly. The delay in this case was minimal and justified. There was no breach of sections 10(a) or 10(b) in this case arising from the timing of the arrest or rights to counsel.
Section 8 - Insufficient grounds for the breath demand
A section 320.28 Criminal Code breath demand requires an officer to subjectively have an honest belief that the suspect has committed an offence, in this case this would be impaired driving, and objectively there must be reasonable grounds for this belief. Sergeant Nicholson observed the driving of speeding as he exited the parking lot, his car bouncing as a result of the speed and almost hitting and needing to correct the position to avoid a vehicle coming from the opposite direction. The vehicle had no nighttime running lights. Mr. Mendonca was unsteady as he exited his vehicle and he looked confused. Sergeant Nicholson detected an odour of alcohol on his breath. Mr. Mendonca ran away and Sergeant Nicholson communicated through a radio dispatch that the male, white he was pursuing was going to be an impaired driver. Officer Brooks observed Mr. Mendonca minutes earlier, in another location, driving his vehicle and honking his horn, acting in a peculiar fashion.
Mr. Mendonca was slurring his speech and did not make sense. He had the odour of alcohol on his breath and later the qualified technician noted that it was strong. The Crown's submission was that Sergeant Nicholson had more than sufficient grounds for making the breath demand. He conveyed information to the officers over the radio and then he attended the scene with Officer Brooks, who in fact made the breath demand. Officer Brooks could rely on information provided to him by his uniformed sergeant, Sergeant Nicholson, following Censoni.
The court finds that there was a proper basis for the demand, with Officer Brooks subjectively and honestly believing the offence of impaired driving had been committed, relying largely on information from Sergeant Nicholson and that there were reasonable grounds for that belief. In considering this and related arguments, the court has considered R. v. Stipo, 2020 ONSC 3302; R v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453; R. v. Wang, 2010 ONCA 435; R. v. Censoni and R. v. Guenter, 2016 ONCA 3857.
It is to be noted that there was also a second breath demand made by qualified technician Long, which the Crown submits was lawfully made. Even if Officer Long misunderstood what PC McKellar told him about distinguishing the observations of Sergeant Nicholson from his observations as PC McKellar, it was in the nature of an innocent or a mistaken apprehension. It was not intentionally misleading. Officer Long was permitted to rely upon information Officer McKellar had given to him, which he perceived to be credible in making what this court finds as a second lawful breath demand.
The court finds that Officer Brooks had proper grounds to arrest Mr. Mendonca for impaired operation and to also make the breath demand. The court also finds that Officer Long had proper grounds to make a second breath demand, relying upon information from PC McKellar, which was credible, and supplemented by his own personal observations of Mr. Mendonca.
The court has come to this belief after carefully considering all the defence arguments on this issue. Those arguments include the following:
The defence did not challenge that the accused exited from the parking lot onto Bathurst at a high rate of speed and kind of bounced a bit as he drove out. The court notes the uncontradicted evidence in this trial that the rear taillights were not on and were not working properly. As a result, the court would find that any showing of the brake lights as Mr. Mendonca drove out of the parking lot at a high rate of speed doesn’t necessarily mean that the brakes were applied. There is no indication in evidence from any witness that as Mr. Mendonca drove out of the parking lot at a high rate of speed that he was braking. If he was increasing speed while braking, one might wonder, hypothetically, if his judgment and driving skills were affected by something. In any event, the court finds the brake lights being on to be neutral in the assessment of evidence.
The court does not take judicial notice of a balance that happens as submitted by the defence when one drives out of a parking lot. There is simply no evidence of that arising from different levels of surfaces being driven over by the vehicle. The evidence was that the vehicle was driven at a high rate of speed.
The court would note again, much like the Browne v. Dunn issue raised by the Crown, that the defence raises for the first time in submissions without questioning Sergeant Nicholson on this point that Mr. Mendonca had to drive around the southbound parked vehicle on Bathurst Street and this was the explanation for his vehicle driving towards the northbound lane.
None of this was explored in evidence in cross-examination, notwithstanding the video played in court depicting what the defence relies upon for this submission. The defence submits that Mr. Mendonca skirted the northbound street lanes is one that can be considered by playing the video showing the driving.
The court finds that the video depicts Mr. Mendonca driving too close to the northbound vehicle approaching him and then correcting his position to avoid a collision with the northbound vehicle. The court would also note that the defence, in oral submissions, did not challenge Sergeant Nicholson's perception of this during the investigation as an observation he might have made as to events that transpired.
It is obvious that police witnesses do not have body worn camera or in-car camera videos to play and replay in the seconds they need to make split-second decisions as to whether to investigate drivers for what they perceive in the moment. It is interesting that the defence submits and it is uncontradicted that Mr. Mendonca corrected his vehicle position and then pulled over to the right when the officer signaled for him to stop.
Oddly, defence counsel submits that Mr. Mendonca acted appropriately by getting out of the car while Sergeant Nicholson approached. The court would note that it is not appropriate conduct for a driver. A driver is to remain in the vehicle while the officer approaches the vehicle, yet that is not something defence counsel explored in evidence but rather simply made a submission on the point.
The officer started questioning Mr. Mendonca after observing Mr. Mendonca's driving by telling him he was stopped for the way he exited the lot and asking if he was okay, to which Mr. Mendonca responded "of course." The court would note that asking a driver a question related to why they might be driving in the way observed is entirely a proper question to potentially rule out medical or other issues contributing to odd driving, as to be distinguished from impaired driving situations.
Secondly, it is to be noted that Sergeant Nicholson, before approaching the vehicle, ran the vehicle in the police computer, as is often done before approaching a vehicle and learned that it was registered to a woman living outside that area of Toronto where he was stopped. Sergeant Nicholson asked Mr. Mendonca where he lived. The first time Mr. Mendonca answered it was difficult to hear his response as he put his head down and his words were difficult to understand the court would note. As a result the officer asked him again where he lives. The officer also told him that he understood that he was on camera, which is the body worn camera that records events. In that period a loud streetcar drove by and Mr. Mendonca touched the officer to suggest that the officer move over from his position.
The position of the defence is implicitly that the officer should have, in the 30 seconds he had to make observations, asked questions and pursued an investigation potentially for impaired driving, that the order of questions should have been different. The defence suggests that the officer should have asked for paperwork and asked Mr. Mendonca if he had anything to drink. While that would have been appropriate, there is no law to direct that the officer must ask these questions first. Again the court is dealing with only 30 seconds before Mr. Mendonca started to flee the scene.
Further, the defence argues that Sergeant Nicholson pushed Mr. Mendonca into the police cruiser or into a vehicle after the exchange about the streetcar. The court has watched the video clip numerous times and found, as indicated earlier, Sergeant Nicholson did not push Mr. Mendonca into a vehicle. It simply did not happen. Again, this was the subject of a Browne v. Dunn issue, noted above.
The defence has also argued that Sergeant Nicholson forcefully grabbed Mr. Mendonca's arm or elbow. The evidence of Sergeant Nicholson is that he tried to grab his arm but missed. The court would note that this was not asked of Sergeant Nicholson and the video does not show a forceful grabbing, nor striking Mr. Mendonca on the head with a flashlight, as was recently submitted by the defence as part of the Browne v. Dunn issue above. The court finds, as indicated, Sergeant Nicholson did not strike Mr. Mendonca in the head with a flashlight.
The defence seemed to suggest that police brutality or violence, which is newly raised in defence submissions, is implicitly an excuse for Mr. Mendonca leaving the presence of Sergeant Nicholson as the officer told him to remain and that he was not done with him. The court would find that was sufficient instruction to Mr. Mendonca to indicate in plain language he was required to remain on scene in what was essentially an investigative detention. There is no legal requirement that an officer state to a detainee "you are in investigative detention" as seems to be suggested by the defence. The court would note that to this point Mr. Mendonca had not identified himself by name or with any paperwork as Sergeant Nicholson had not got to the point of asking those questions before Mr. Mendonca fled.
The defence submitted prior to the court attendance requested by the court for November 27th, 2023, to play the ICC video, showing the breath demand by PC Brooks that there had been no breath demand made on the scene, nor prior to the demand by the qualified technician at the police station. (That is of course not consistent with the evidence and the facts found in this trial.)
The defence argued that the breath demand first made by the qualified technician was problematic. The defence relied on R. v S.S., 2023 ONCA 130. The court would note that in S.S. the court found that the technician was deliberately misled by the uniformed officer in terms of the grounds for the demand. In this case, the court found that there was no evidence of deliberate misleading by Officer McKellar to Officer Long. The court would note that even if Officer McKellar, who turned over Mr. Mendonca to the qualified technician and gave grounds, gave information that created confusion or an error in understanding as far as which officers saw Mr. Mendonca drive, it was not a case of deliberate misleading as done by the officer in R. v. S.S.
The court relies upon and follows R. v. Stipo, 2020 ONSC 3302. The officer gave a summary of what he understood to be the grounds in terms of driving. The court would note, as referred to earlier in the reasons, this was another example of the Browne v. Dunn problem where defence counsel did not cross-examine the officers regarding the exchange as to prior grounds prior to the breath test being taken. Either way, Sergeant Nicholson observed the earlier problematic driving.
The court has found, accepting the evidence of the officers, that the substance of the information was that there had been information as to problematic earlier driving related by Sergeant Nicholson to Officer McKellar and from Officer McKellar to the qualified technician Long. Other observations made by Officer McKellar could properly be related to Officer Long in terms of physical signs of impairment.
In this case, the evidence is that the second time the breath demand was read to Mr. Mendonca was by the qualified technician. Prior to that, Mr. Mendonca had been properly placed under arrest for impaired operation of a vehicle and given rights to counsel and the breath demand. Body worn camera evidence shows that Officer Brooks read the rights to counsel to Mr. Mendonca a few times arising from Mr. Mendonca's responses and behaviour.
The court finds that PC McKellar took Mr. Mendonca to the breath room after PC McKellar had the cell phone call from Sergeant Nicholson en route to the police station, when Sergeant Nicholson gave what he described was the Cole's notes version of what had happened before they arrested Mr. Mendonca.
Officer Long, the qualified technician, was told that Mr. Mendonca had committed a Highway Traffic Act offence. The vehicle was stopped. Mr. Mendonca exited the vehicle and then ran from the vehicle. He was also told that officers chased him for a short distance and then arrested him. PC McKellar advised Officer Long that Mr. Mendonca had slurred speech, had been arrested for impaired operation and advised of his rights to counsel and the breath demand for the approved instrument.
Officer Long testified he also read Mr. Mendonca the breath demand and explained the reason for doing this procedure. He testified that part of their training advises them to read the breath demand, just in case the arresting officer reads the incorrect demand or perhaps the subject didn’t understand it on the road, a whole myriad of different reasons why the accused might not receive the proper demand.
The defence has argued that the uniformed officer intentionally misled the qualified technician, Officer Long, about the basis upon which the arrest and breath demand had been made.
The court considers R. v. Musurichan, 1990 ABCA 170, that what is important is whether the officer, in this case the qualified technician Officer Long, believed the information he was given and if it was reasonable to do so. In this case, the court agrees with the Crown's submissions that there was no intentional misleading of Officer Long by the uniformed officer in conveying the information that caused Officer Long to believe that the uniformed officers at the station had in fact observed the earlier driving and the observations made by Sergeant Nicholson. It was reasonable for Officer Long to believe that the officers had made those observations, rather than stating more accurately and clearly the observations that had been made by Sergeant Nicholson, rather than the two uniformed officers.
Unlike the case in R. v. S.S., referred to by the defence, there is no evidence to support that the uniformed officer intentionally misled the qualified technician, Officer Long. In addition, similar to Browne v. Dunn raised earlier regarding the interaction between Sergeant Nicholson and Mr. Mendonca and allegations of assault not asked of Sergeant Nicholson, the same Browne v. Dunn issue arises.
The defence asked Officer Brooks if he spoke with the qualified technician and he did not remember if he gave any information. As it turns out, the court would note, the video shows that it was Officer McKellar who provided information to the qualified technician and Officer McKellar, when asked, could not remember speaking with the qualified technician. Nonetheless, there was no question put to Officer McKellar with respect to whether he intentionally provided misleading information to Officer Long.
There is simply no evidence before this court that there was an intentionally misleading situation in providing information to Officer Long by PC McKellar. The court finds that there is no evidence to support the defence submission and accordingly the court does not find that there was any potential misleading of the qualified technician, Officer Long, regarding the grounds, arrest or demand.
Conclusions regarding Charter issues
In summary, based on the findings of fact by the court in this case, as outlined above, and based upon the court's analysis of the issues, the court finds that there was no breach of sections 7, 8, 9, 10 or 11(d) of the Charter. As a result of there being no breaches of any of the sections of the Charter raised by the defence, the evidence, including the blood alcohol readings, will be admitted in evidence.
The defence had made no arguments with respect to proof of the ultimate issue on the over 80 charge. The defence has essentially conceded proof of that charge, should the blood alcohol readings be admitted in evidence, after consideration of the many Charter applications and if the demand was in compliance with the Criminal Code requirements in terms of time. As noted above, the defence was of the view that the demand was not made until the qualified technician made the demand. This was in error. The court finds as a fact that the demand was made much earlier on the scene by PC Brooks and was in keeping with the requirements of the Criminal Code.
The court also finds that although there was a delay in this case, it was properly explained both on the scene, travel to the police station for the intoxilyzer tests and while at the police station. The court finds that the breath tests were taken as soon as practicable. There were no issues that were raised in relation to this charge should the readings be admitted in evidence after consideration of the multiple Charter breach applications argued by the defence.
Accordingly, the court finds Mr. Mendonca guilty on the over 80 charge before the court.
Impaired Driving
As it relates to the charge of impaired operation of a motor vehicle or conveyance, there were no issues or arguments raised by the defence. Nonetheless, the court considers the following regarding this charge. The court considers R. v. Stellato (1993), 78 CCC (3d) 380, and that the Crown is required to prove beyond a reasonable doubt impaired ability by alcohol to operate a motor vehicle. Any degree of impairment ranging from slight to great is sufficient.
The court has considered R. v. Censoni, and in particular paragraph 47 where Justice Hill stated:
"Furthermore, it must be remembered 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, regard for the rules of the road, and the like."
In addition, the court has considered another Summary Conviction Appeal Court judgment in R. v. Linstead, [1998] OJ No. 2950, paragraphs 13 to 16. In paragraph 13 the court stated:
"In making these distinctions, however, one must bear in mind that the driving of a motor vehicle is a far more complex task than walking, standing or maintaining balance. True, it requires gross motor skills similar to those involved in such activities, but it requires in addition much more refined in complex mental capabilities such as estimating the relative speed and position of motor vehicles, traveling in different directions, depth and distance perception, the ability to judge accurately and quickly whether one may in an infinite variety of circumstances proceed or whether one must stop or turn. It requires a complete range of peripheral vision. It requires the ability to judge the relative intensity of light so as to distinguish, for instance, whether at night an auto in front is stopping or merely has rear lights in the "on position". It requires alertness; it requires the maintenance of that judgment amounting to consciousness, which cautions a prudent driver not to take risks, which might imperil himself or other users on the highway. It is no secret that the ingestion of alcohol affects not only gross motor functions, the impairment of which may be relatively easy to observe and describe, but also the mental capacity to perform the myriad subtle, refined, instantaneous, and complex mental functions that are comprised in the responsible operation of a motor vehicle in situations of potentially great speed and in almost every condition of road, weather, and traffic..."
As stated by the Court of Appeal for Ontario in R. v. Bush, (2010), 2010 ONCA 554, 101 O.R. (3d) 641, the court considers what the court stated at paragraph 47.
"Impairment may be established where the prosecution proves any degree of impairment from slight to great: R. v. Stellato (1993), 12 O.R. (3d) 90, [1993] O.J. No. 18 (C.A.), affd (1994), 1994 94 (SCC), 18 O.R. (3d) 800, [1994] 2 S.C.R. 478, [1994] S.C.J. No. 51. 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: Censoni, at paragraph 47.
Similarly, the court considers R. v. Stennett, [2021] O.J. No. 2156 (C.A.). As held by the Supreme Court of Canada in R. v. Orbanski; R. v. Elias, which was cited above, and at paragraph 58, the court noted that observations made by police officers made while officers are carrying out their authorized duties can be considered such as signs of impaired ability and are admissible to prove the charge of impaired.
The court distinguished those physical observations from observations resulting from compelled participation at the roadside, such as physical sobriety tests. In this case there were no compelled tests at the roadside. There is no doubt that the court can infer impairment from observations made of an accused person subsequent to the allegations, including at the police station. (See R. v. Maharaj, [2007] OJ No. 1184, at paragraph 29.)
All observations of impaired ability made by the four police officers in this case (Sergeant Nicholson, PC Brooks, PC McKellar and PC Long, the qualified technician) were made in the course of their observations of Mr. Mendonca, while dealing with him and are properly admissible in this case. The court has made findings of fact with respect to the following pieces of evidence related to Mr. Mendonca's impaired ability to operate a motor vehicle.
- Mr. Mendonca drove through a parking lot west of Bathurst at an excessive rate of speed and his vehicle appeared to bounce as he was exiting the lot at this speed.
- As he entered southbound Bathurst, his vehicle was traveling at a speed and position where he was described as almost hitting a vehicle coming from the opposite direction and he had to take corrective action to avoid hitting this vehicle.
- He was unsteady on his feet as he got out of his vehicle.
- He appeared kind of confused as he was speaking with Sergeant Nicholson.
- Although Sergeant Nicholson was wearing a Covid facemask, the sergeant detected an odour of an alcoholic beverage on the breath of Mr. Mendonca.
- Approximately 20 minutes prior to these driving observations, Officer Brooks observed Mr. Mendonca to act in a peculiar fashion. He and other officers were investigating a matter in the neighbourhood and cars had to slow down. Mr. Mendonca reacted to the situation by honking his horn and yelling out the window to people. Officer Brooks had to come over to tell Mr. Mendonca to stop because it was so noisy and he told Mr. Mendonca they were trying to do an investigation.
- After Officer Brooks and Officer McKellar apprehended Mr. Mendonca, Officer McKellar noted that Mr. Mendonca was slurring his words, appeared to be confused, was somewhat unsteady on his feet and was somewhat readily aggressive.
- Over the time he was in the presence of Officers Brooks and McKellar, the behaviour of Mr. Mendonca changed quite dramatically. It ranged from quite angry to very nice, saying he respected the two officers, what they do, and that he respects their jobs and saying God bless everybody. He was repetitive in relating information to the officers regarding his family and other matters he mentioned to them.
- He had difficulty keeping track of time.
- The court has ultimately admitted the evidence on the blended Charter voir dire, and this included a portion of evidence where there was an indication that Mr. Mendonca gave to the officers his lawyers phone number, which was an incomplete number being 416-5161. This was actually a portion of Mr. Mendonca's own phone number but was not a complete Toronto phone number.
- The qualified technician noted the strong odour of an alcoholic beverage on his breath, glassy bloodshot eyes and slightly slurred and fast speech.
- The presentation of Mr. Mendonca on the video clips depicts his slurred speech at various portions in time.
The court finds in light of the findings of fact made by the court in this case, including those noted above and applying Stellato and other relevant case law regarding this offence, the Crown has proven beyond a reasonable doubt that Mr. Mendonca was operating a conveyance while his ability to operate a motor vehicle or conveyance was impaired by the consumption of alcohol. Mr. Mendonca is also found guilty of that charge.
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2)) Evidence Act
I, TARA BROWN, certify that this document is a true and accurate transcript of the recording of R. v. Mario Mendonca, in the Ontario Court of Justice, held at 10 Armoury Street, Toronto, Ontario, taken from recording 4810_806_20240110_091613__6_BROWNBE, which has been certified in Form 1.
(Signature of Authorized Person) ACT ID # 3083536071
(Date)
AUTHORIZED COURT TRANSCRIPTIONIST - MS. TARA BROWN