ONTARIO COURT OF JUSTICE
DATE: April 8, 2025
COURT FILE No.: 24-11100040
BETWEEN:
HIS MAJESTY THE KING
— AND —
DALTON POWELL
Before Justice Robert S. Gee
Heard on March 18 and 25, 2025
Reasons for Judgment released on April 8, 2025
X. Ruan — counsel for the Crown
N. Pawlowski and N. Arski — counsel for the Accused
INTRODUCTION
1Dalton Powell is charged with operating his motor vehicle while his ability to do so was impaired by a drug on December 22, 2023, contrary to s. 320.14(1)(a) of the Criminal Code.
2On December 22, 2023, a civilian witness flagged down an OPP cruiser as it sat at the side of a road in Dunnville, Ontario. The witness advised the officers that he had just called 911 because he had been following a suspected impaired driver who was at that moment directly behind him.
3At about 10:23 pm, the officers exited their cruiser and directed the vehicle pointed out by the witness to stop. Officer Taylor Accursi had some brief conversation with the driver, Mr. Powell, and asked him to step out of his motor vehicle, that being a blue Ford pick up truck.
4When he exited she directed Mr. Powell to the front of the truck. She continued to speak to him and based on the information provided by the witness and her observations, at 10:26 pm she arrested Mr. Powell for impaired operation, placed him in her cruiser and advised him of his rights to counsel, caution and made a demand that he submit to an evaluation by a drug recognition expert (DRE).
5Officer Accursi transported the accused to the Cayuga detachment where he spoke to counsel, then transported him to the Simcoe detachment as that’s where the nearest DRE, Officer Janelle Sinclair, was located. The DRE concluded Mr. Powell was impaired by a drug and made a demand for a urine sample. After he provided that sample he was turned back over to Officer Accursi who returned him to the Cayuga detachment and lodged him in a cell at 2:39 am. The accused was later released on an undertaking at about 8:50 am on December 23, 2023.
6Mr. Powell has alleged the police violated his s. 8 and 9 Charter rights in two ways and seeks exclusion of the DRE evidence and urine test results pursuant to s. 24(2) of the Charter. If that is not successful, the accused argues the evidence falls short of proving the accused was impaired at the time.
7The issues to be decided then are threefold. The first Charter based issue is that Officer Accursi lacked reasonable and probable grounds (RPG) to arrest the accused and make a demand. The second Charter based issue is an overholding argument. The accused states he should have been released by 2:39 am upon his return to the Cayuga detachment and not held until the morning. The last issue is if the Charter arguments fail, whether the Crown has proven the accused was impaired.
ISSUE ONE – GROUNDS
8In order to make an arrest without a warrant, police need to have reasonable and probable grounds to believe the accused has committed an offence. That means they must subjectively believe the accused has committed the offence and that subjective belief must be objectively reasonable. See: R. v. Storrey, [1990] 1 S.C.R. 241 at para 17 and R. v. Canary, 2018 ONCA 304 at para 21.
9In a case such as this when assessing the appropriateness of the arrest and demand, what must be assessed is the facts known to the officer at the time. That other explanations for her observations may come to light later, or that the observations are based on incomplete facts is not necessarily fatal to a determination of whether the officer had RPG. What needs to be assessed are the facts known to the officer at the time. See: R. v. Bush, 2010 ONCA 554 at para 66.
10In this case Officer Accursi testified she relied on several factors to come to the belief the accused was impaired. First, was the information from the civilian witness who stated he had observed the accused driving and swerving and had just called 911 to report it. She also stated when she approached the accused while he was still in the truck, he failed to maintain eye contact with her. She expanded on that to say she meant he kept turning his face away from her and would not stay facing her while she spoke to him while in his vehicle. Next, she said when she asked him to get out of the truck, he kind of slid out and nearly fell when his feet came in contact with the roadway. She then asked him to walk to the front of the truck and in the 6 to 7 steps it took for him to reach the front, he walked stiff-legged and with a wide gait.
11Based on all these observations, and the lack of evidence pointing to any consumption of alcohol, she felt the accused was impaired by drugs and arrested him.
12The accused has argued that Officer Accursi’s investigation was not thorough and she rushed to her conclusion. The accused points out from the time Officer Accursi approached the truck until she arrested the accused was only approximately three minutes. It is also pointed out there may be other explanations for the observations made. The exiting of the truck in the manner the accused did could be because the truck was lifted or higher than average, his gait could have been caused by wearing work boots that were untied and he asked for a roadside screening test, presumably an ASD to be given to him. It was also pointed out after initially getting out of the truck, the accused never fell or struggled to stand. The defence also argued Officer Accursi’s opinion was coloured by the fact she had prior drug related dealings with the accused and because of those dealings, she leapt too quickly to presuming he was impaired by drugs.
13The defence also argues there could be other explanations for the driving behaviour observed by the witness. The accused it is argued may have been on his phone or been aware he was being followed by the civilian so his driving was impacted by that. Additionally, there was no accident or near accident reported by the witness.
14At best the defence argues, Officer Accursi had grounds to demand a standard field sobriety test (SFST), but there were insufficient grounds for an arrest. I was provided with several cases by the defence where courts held the officer’s grounds were insufficient. Comparing those cases to this one, I'm urged, ought to lead to the same conclusion. See for instance: R. v. Cartier, 2015 ONCJ 731, R. v. Embry, [2000] O.J. No. 4020, and R. v. Knight, 2013 ONCJ 478.
15All cases need to be decided on their own facts, based on an assessment of the evidence as a whole as available to the officer at the time. Based on the evidence as a whole as presented to Officer Accursi I find she had a subjective belief the accused was at least slightly impaired by a drug and that this belief was objectively reasonable.
16The observations made by Officer Accursi are not in dispute. It is what can be made of those observations that is challenged. As noted, the defence points out that for most of the observations, other non-drug related explanations are available for them. The truck was lifted, his boots were untied, he may have been on his phone. When these factors are kept in mind all it adds up to at best is a suspicion about drug impairment. Then what lead Officer Accursi to believe the accused was impaired, was her prior dealings with him which caused her to improperly fill in the gap between suspicion and reasonable and probable grounds.
17I find that Officer Accursi’s prior dealings with the accused did not improperly influence her in this manner. She denied that it did so and I accept her testimony in this regard. I found she testified in a very careful and measured manner. She was well aware of her obligations and the different foundational requirements needed to proceed with an arrest in these circumstances as compared to only having a reasonable suspicion which would allow her to make a demand for an SFST. She stated she had approximately two prior dealings with the accused, and she was adamant that these prior dealings did not influence her assessment of the situation on this night. In the end, I believed her when she stated this.
18Overall, I find she had a subjective belief the accused was impaired by a drug and this belief was objectively reasonable. I would first point out that RPG is not an onerous test. It is more than suspicion but not proof beyond a reasonable doubt. As well it is not necessary that the accused be in an extreme state of impairment before RPG exists, there is no minimum time required before RPG can be formed nor are there a minimum number of indicia that must be present. It is the totality of the circumstances that must be assessed. Again see, R. v. Bush, paras 54 to 58.
19In this case I find when the totality of the circumstances are examined, Officer Accursi’s conclusion she had RPG is objectively reasonable. It was helpful in this case that her observations of the accused were captured on her body worn camera. Video evidence such as this can be a very valuable tool in assessing such cases, but it cannot fully replace the live, on the scene observations made in close proximity to the accused by those involved. I have viewed the video here and should note I am not using it to assess whether I can come to the same conclusion about the accused’s state as Officer Accursi, did on the scene that night. She was in a better position, that night than I am in now, when I view the video. I am viewing the video to determine whether her assessment of her grounds that night is objectively reasonable. I find it is.
20The video does corroborate the observations she testified to making. When approaching the vehicle, the accused consistently turned his head away from her. When asked to exit the vehicle as Officer Accursi stated, the accused seemed to struggle to get out and slid from the seat to the road. His gait as he walked to the front was stiff legged and wide and appeared unnatural. When these factors are assessed holistically and combined with the information received from the civilian witness about the accused’s driving, I find that the arrest of the accused and demand made by Officer Accursi was objectively reasonable and proper. The other explanations proffered for these observations do not undermine Officer Accursi’s RPG. Even assuming some of the observations may have other explanations, does not require their elimination from consideration of the totality of the circumstances presented to the officer. See R. v. Bush, para 57.
21As such, I find the accused has failed to demonstrate his s. 8 Charter rights were violated by the police in making the arrest and the demand.
ISSUE TWO – OVERHOLDING
22When a person is arrested without a warrant and the police have determined they are releasable without a bail hearing, s. 498 of the Criminal Code requires them to release the person as soon as practicable. Not releasing them as soon as practicable can lead to an arbitrary detention and a s. 9 Charter breach. See: R. v. Iseler, [2004] OJ No 4332. This is what the accused is alleging here.
23After Officer Sinclair completed her evaluation and turned the accused over to Officer Accursi, she returned him to the Cayuga detachment, arriving at 2:39 am. The accused alleges he should have been released immediately upon his return. He was not. He wasn’t released until the morning. At 8:51 am, Officer Whitall, attended the cell the accused was in, woke him from his sleep and arranged for his release. Since the accused’s truck had been impounded, the impound yard had his keys to the truck which also contained the keys to his house. As a courtesy, since he had no other ride, Officer Whitall drove the accused to the impound yard in Dunnville, where the accused was able to get his house keys and from there, they departed company.
24The period of overholding alleged by the accused then is just over 6 hours, from 2:39 am to 8:51 am.
25The accused referred me to the decision of Justice Durno in R. v. Price, 2010 ONSC 1898. In that case Justice Durno suggested a list of non-exhaustive factors to consider in an alleged overholding case. That was an alcohol related case, but the accused suggests the same considerations should be applied in a case of impairment by drug.
26In R. v. Price, Justice Durno held it would be inappropriate to focus too narrowly on the accused’s BAC. All the circumstances must be considered. The list of factors Justice Durno suggested be considered were found at paragraph 93 as follows:
- The accused’s blood alcohol level;
- Whether the accused was charged with impaired operation;
- The accused’s level of comprehension;
- Whether the accused was prohibited by statute from driving a motor vehicle, including the administrative drivers’ licence suspension;
- Whether the accused’s vehicle was impounded;
- Whether a responsible person was available to pick up the accused;
- Whether the accused had a criminal record and if so, its contents;
- Whether the accused had outstanding charges; and
- The accused’s attitude and that by drinking and driving the accused has recently exhibited poor judgment.
27That the entirety of the circumstances must be considered, almost goes without saying, but the helpfulness of this list created by Justice Durno, does have its limitations. I find the comments by Justice Heeney in R. v. Kavanagh, [2017] O.J. No. 430 at para 41 are apt. In that case he had this to say about Justice Durno’s comments in Price and the overholding analysis in general:
The comments of Durno J. are interesting, although perhaps not quite as helpful as they appear at first blush. Several of the factors cited -- the administrative license suspension, the impounding of the accused's car, and the poor judgment exhibited by drinking and driving -- are present in virtually every case of "over 80", and are not a variable factor, like a blood alcohol reading, that demands active consideration by the officer-in-charge. Furthermore, the suggestion that an accused with a high blood alcohol content can simply be off-loaded by the police to a civilian is open to valid debate. The comments of Sgt. MacDonald, that once the individual is in custody she is "on the hook" to look out for his safety, are compelling. If an accused with a high blood alcohol content were released to a friend or family member, and then fell and seriously injured himself due to his alcohol consumption, the police should have a valid concern as to whether they might be held liable for his injuries. Even worse would be the situation where the accused chose to get behind the wheel of a different vehicle after his release, notwithstanding the efforts of his chaperone.
28I find these comments of Justice Heeney convincing. Additionally, the licence suspension, vehicle impoundment and the exhibition of poor judgment apply equally to cases of impairment by a drug, as they do in cases of alcohol impairment. The off-loading as he calls it, of a drug impaired accused to a civilian would prompt the same if not a more compelling debate. I say more compelling because I find there is an important distinction between cases of impairment by alcohol and impairment by drugs in one respect. The science underlining impairment by alcohol, its effect on the body and especially the elimination of alcohol from the blood, and consequently the eliminating of its impairing effects on a person, is better understood. Alcohol is eliminated from the blood at a very predictable and known rate. The same is not true of drugs. The wide variety of drugs a person may ingest, how they effect a person and the rate at which those effects dissipate is not as nearly as predictable and well understood. To a great extent, the police are flying much more blind in this regard when it comes to impairment by drugs as they are when dealing with impairment by alcohol.
29In assessing the overall circumstances of this case, the Crown engaged in a risky trial strategy. It was Officer Accursi as the officer in charge, who made the decision that the accused was to be released, but it was also her decision to delay that release and not do it immediately upon return to the Cayuga detachment at 2:39 am. Officer Accursi went off shift at 6:00 am and the accused was released as noted by Officer Whitall at 8:49 am on instructions from the Staff Sergeant. The risk the Crown took was not calling the Staff Sergeant to testify why the decision to release was made when it was.
30As risky as that was, I find in the overall circumstances of this case, it was not fatal to the Crown case. When the circumstances are viewed in their entirety, I find the decision to release the accused when they did in the morning, was reasonable and did not amount to an arbitrary detention of the accused.
31The circumstances to be considered are as follows. Officer Accursi was presented with a person who a civilian had seen operating a vehicle and according to him, swerving all over the road. When she dealt with the accused, he was displaying signs that lead her to the conclusion the accused was impaired by a drug. While transporting the accused from Cayuga to Simcoe for examination by the DRE, the accused fell asleep in her cruiser. Upon arrival in Simcoe, the accused was turned over to the DRE, Officer Sinclair who conducted her examination after which she concluded the accused was impaired by a central nervous system stimulant. Upon coming to that conclusion, she made a demand for a urine sample from the accused and instead of providing one, he was put in a cell and immediately fell asleep. Officer Sinclair had to wake him several times to encourage him to provide a sample. She went as far as warning him if he did not provide a sample, he would be taken to the hospital for a blood sample or be charged with refuse. After more than an hour, the accused eventually provided the sample of urine.
32Upon completion of her investigation, Officer Sinclair turned the accused back over to Officer Accursi and advised her of the results of her examination and her opinion that the accused was impaired by a drug. Upon return to Cayuga, Officer Accursi advised the Staff Sergeant that the accused could be released when determined appropriate to do so.
33In determining when it would be appropriate to release the accused, in addition to his state of impairment as observed by the officers involved, it is important to keep in mind the context under which this arrest took place. First, it was late at night, in December when cold temperatures can be expected in Canada. Next, it was in Cayuga, a small town in a rural part of the province. There are no buses or other form of public transit available in the area. The OPP detachment is on the outskirts of town, on a main road with limited to no artificial lighting and, limited to no sidewalks in the area.
34Further, there was no evidence there was anyone available to pick the accused up and take responsibility for him. The defence suggest his grandmother could be such a person as the police has phoned her earlier in the night to get from her contact information for the accused’s counsel. However, despite this, there is no evidence before me the accused ever suggested she could pick him up, nor did he suggest anyone else. I would also note when he was released in the morning, he didn’t suggest anyone to pick him up then and in fact was agitated he was without assistance, so Officer Whitall as a courtesy not often done, drove him to Dunnville to retrieve his keys to his house. This also demonstrates if he had been released at 2:39 am as suggested by the defence, he would have been without the keys to his house and without the means to recover them.
35Last, even though the Staff Sergeant did not testify, the prisoner security check log demonstrated the accused was monitored frequently in the cell, usually at no more than 15 minute intervals, and he was asleep practically the entire time. The amount he was sleeping itself, both prior to being lodged in the cell at 2:39 am and after, Officer Sinclair stated could be a sign of the effects of the drugs on his system. She stated it was unusual for a person, even a person genuinely tired and not under the influence of drugs, to continually fall asleep like the accused was while they were engaged in an active investigation and interaction with the police.
36Keeping all these factors in mind, I am unable to say the decision to hold him to be released in the morning was unreasonable. Keeping him until then, to be released after getting the sleep he clearly needed, when further time had passed to lessen the effects of the drugs on him, and when it was daylight, I find was reasonable. For these reasons I find the accused has failed to demonstrate his detention until the morning was arbitrary and this alleged s. 9 Charter breach fails as well.
ISSUE THREE – IMPAIRMENT
37Having dismissed the accused’s Charter application, the remaining issue to decide is if the Crown has proven the accused was impaired while operating his motor vehicle. In this regard the Crown need only prove any degree of impairment ranging from slight to great. See: R. v. Stellato, (1993) 12 O.R. (3d) 90 (ON CA).
38Evidence of the accused’s impairment came from a variety of sources. First were the observations made at the time of the stop by Officer Accursi. At that time the accused when asked to exit his truck seemed to struggle, then slid from the driver’s seat on to the roadway and nearly lost his balance. He then displayed an unnatural, wide stance and gait as he walked to the front of the truck.
39Next, the DRE, Officer Sinclair examined the accused by putting him through a variety of procedures. On several of these, the accused performed in the average range but on several others, he did poorly. On the walk and turn test he had to raise his arms several times to maintain balance and he did not follow the DRE’s instructions when turning around. He had to put his foot down when doing the standing on one foot test. He probably did most poorly on the touching of the tip of the nose test, where once he touched his nostril, once he touched the bridge of his nose and once he missed his nose altogether and touched his cheek. Based on these results and others, Officer Sinclair believed the accused was impaired by a drug, likely a central nervous system stimulant.
40There are also the results of the urinalysis. Methamphetamine, amphetamine and cocaine were all detected in the accused’s urine. Even though finding the presence of drugs in a person’s urine only confirms past consumption and not impairment, this evidence does corroborate the evidence of both Officer Accursi and Sinclair.
41The accused has argued given the other explanations for some of Officer Accursi’s observations mentioned earlier, the fact that the accused fell within the average range on some of the procedures Officer Sinclair put him through, and keeping in mind the presence of drugs in his urine does not equate to impairment, the evidence overall is too equivocal for me to be satisfied beyond a reasonable doubt.
42In assessing this evidence in its totality, I have cautioned myself not to simply defer to the opinion of Officer Sinclair, the DRE. When the evidence is viewed in its entirety, I am satisfied the accused’s ability to operate his motor vehicle that night was at least slightly impaired by drugs. His lack of coordination and balance and his fine motor skills were compromised that night as demonstrated in Officer Sinclair’s testing and Officer Accursi’s observations. I am satisfied this would have reduced his ability to perform the complex motor functions necessary to operate a motor vehicle.
CONCLUSION
43Based on all the foregoing reasons, I find the accused’s Charter rights were not violated as alleged and that the Crown has proven the accused was impaired by a drug while operating his motor vehicle. As such, the accused will be found guilty as charged.
Released: April 8, 2025
Signed: Justice Robert S. Gee