Court File and Parties

Court File No.: 12-13138 Date: 2014-01-31 Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Afeefa Khan

Before: Justice S. R. Clark

Ruling on Voir Dire

Charges: Impaired Operation and Refuse Breath Sample

Voir Dire Held: December 30, 2013

Ruling Released: January 31, 2014

Counsel:

• Mr. R. Levan for the Crown
• Mr. R. Posner for the Defendant Afeefa Khan

CLARK J.:

1.0 Introduction

[1] The defendant is charged with impaired operation and refuse breath sample on September 2, 2012.

[2] This is a case about whether the police had objective grounds to make an arrest.

[3] Cst. Williams received a radio call at 3:15 a.m. A civilian witness had reported concerns about an individual demonstrating bad driving on the Queen Elizabeth Way (QEW) and thought it was a possible impaired driver. The officer observed the vehicle himself at 3:19 a.m. while travelling northbound on Hurontario Street off the QEW. He saw it cross the right line of the lane in which it was travelling on two occasions. It then changed lanes without signalling and then stopped at a green light for approximately 4 seconds. After following the vehicle for approximately 2 to 3 minutes, he pulled it over and approached the driver's side. The interior was quite smoky. A male passenger had been smoking a cigar. The defendant, who was the operator, appeared to have glassy eyes. She was ordered out of the car. She had been wearing high-heeled shoes and had taken them off while driving. As she exited, standing barefoot on the side of the road, the officer noted she was unsteady on her feet. She was able to retrieve her shoes from the car. He noted she was having difficulty putting her left shoe on. He detected the odour of alcohol on her breath. She admitted having consumed one glass of wine approximately 2 hours earlier. After observing her walk, he then formed the opinion her ability to operate a motor vehicle was impaired by alcohol and arrested her. No roadside screening test was administered. She was then transported to the Port Credit OPP detachment, whereupon she subsequently refused to provide samples of her breath.

[4] Both counsel agreed the matter would first proceed as a voir dire on the Charter application filed by the defendant.

[5] She alleges there has been a breach of her ss. 8 and 9 rights, on the basis that she was subjected to an unlawful roadside arrest. The investigating officer did not have the reasonable and probable grounds necessary, based on all the circumstances, to do so. Her detention, therefore, was arbitrary. The subsequent demand for a sample of her breath constituted an unreasonable search.

[6] The Crown, on the other hand, submits the officer had the requisite grounds to make a lawful demand. Accordingly, there was no arbitrary detention. In the alternative, if there were Charter breaches, the evidence should be saved under a s. 24(2) analysis.

2.0 Summary of the Evidence

2.1 The Crown

2.1.1 Cst. Thomas Williams

He has been with the OPP since August 2008, in the traffic division and on the emergency response team. He received a radio call about a possible impaired driver travelling westbound on the Queen Elizabeth Way (QEW) from highway 427. The background information received was that the vehicle was weaving and travelling at varying speeds from 90 to 80 kilometres per hour. He positioned himself in his police vehicle so as to observe as it travelled by. He saw a grey Audi go by and exit northbound on Hurontario Street. He followed it. It stopped at a red light in the center lane. It then crossed the right lane twice approximately 1/3 of the way into the next lane. It then manoeuvred back to the center lane and then into the left lane without signalling. It then made a left turn, again without signalling onto Bronte College Court. It then stopped at a green light for approximately 6 seconds, even though there was no southbound traffic. He effected a traffic stop at 3:21 a.m. and approached the driver's side window. A male passenger was in the front seat beside her. She explained the reason for her poor driving was because she and the passenger were arguing. He noticed she had glassy eyes. She provided her driver's licence upon request. There was a significant amount of smoke in the car. The male passenger had been smoking a cigar. He asked her to exit. She was unsteady on her feet as she did so. He explained, "To be honest, I can't say if she was swaying back and forth or was leaning on the car." He then noted that she was not wearing shoes. She asked to obtain them from the car which he permitted. She had difficulty putting on her left shoe. He believed she made multiple efforts to do so. (It should be noted the shoes had approximate 6 inch heels. They were entered as an exhibit). At this time he detected an odour of an alcoholic beverage on her breath. She admitted she had consumed 1 glass of wine approximately 2 hours earlier. He then observed her walking "slow", to use his word, toward the back of her car and in the direction of the police vehicle. He described this was not a normal walking pace. At this time he formed the opinion he now had the grounds to arrest her for impaired operation, and did so at 3:24 a.m. She was subsequently given her rights to counsel, was cautioned, and issued a breath demand. She refused to provide a breath sample at the police station.

On cross-examination, he could not recall whether she volunteered the information about having an argument with the male passenger, or whether it was prompted by his asking questions. He acknowledged she gave him a clear and unambiguous answer. He agreed he had no reason to doubt the veracity of her statement. He made no notation of her having any difficulty with her speech. He did not disagree with counsel's suggestion she spoke the way a "sane and sober" person would have spoken. He acknowledged his observation of her glassy eyes could have been due to the dense cigar smoke. He hastened to add, however, that he knew it was his responsibility to consider the totality or constellation of factors. Regarding his observation of her being unsteady on her feet, he realized she was not wearing any shoes when she came out of the car. She had no difficulty putting on the right shoe, but had some trouble putting on the left. He agreed, however, she would have been balancing on one shoe at the time she was attempting to put on the other. He acknowledged, to a degree, it may have been a difficult manoeuvre, particularly since she was not leaning on anything. However, all he knew is she had trouble putting one of her shoes on. He acknowledged, however, even a sober person might have had difficulty doing this. He disagreed with counsel's suggestion he arrested her for impaired operation once she had put on her shoes. He explained it was only after she walked to the back of her car and in the direction of the police cruiser. To this point he acknowledged he had a suspicion she had alcohol in her body. He was considering administering an approved screening device demand. He also acknowledged that until he saw her walk he did not have the grounds to form the opinion of impairment. When asked if he thought a lady walking in 6 inch heels too slow was enough to form this opinion, he explained it was slower than he would have thought. Counsel suggested this was not reasonable to go from no opinion about impairment to formulating one just by virtue of her walking in heels, which would had been problematic for most anyone. He responded he did not think it was an unreasonable assumption to make. He did not know what her experience may have been walking in those shoes. He acknowledged she was wearing a very short skin-tight skirt, and did not disagree with counsel's characterization that it was "as short as it gets". Counsel also suggested it might be common sense to understand that she might not wish to expose her undergarments while putting on her shoes, and might have positioned herself in such a way to hide this. The officer could not comment on this because he did not see her underwear. He agreed with counsel's suggestion, however, that this would not be the most practical garment to run in, for example, and it could even slow her down while walking.

3.0 The Positions of the Parties

3.1 The Defence

[7] Counsel asks the Court to consider the following points:

1. There were insufficient grounds for the officer to have formed a reasonable basis for arresting the defendant for impaired operation.

2. Although the evidence is fairly straightforward, the Court should give careful consideration to the officer's inability to recall many important aspects of the investigation. This affects his reliability more than his credibility or veracity. For example, he did not know where he was at the time he received the radio call, although he believed he was in his office at the time and not on the road. Although this small point has little probative value, it is merely one of many important factors that may undermine the integrity of the arrest. Another example is that he did not recall what he may have said to the defendant which prompted her to tell him she had been arguing with the male passenger. This failure to recall is a relevant factor in the reliability calculus and the reasonableness of his grounds. Of more significance is the fact he had no recollection of any of the details supporting his observation of the defendant being unsteady on her feet. In fact, he would not even speculate if she was stumbling or leaning on anything. In fairness, however, he did concede that at that point he noticed she was barefoot and he may have "chalked" it up to that. However, he had little or no recall of whether she was leaning on anything when putting on her left shoe, or how she was positioned physically.

3. All of these failed recollections, cumulatively, militate against this being a reasonably-based arrest.

4. Counsel concedes the bad driving warranted initial investigation, however, when considering all of the circumstances, as the law requires him to do, the officer acknowledged the defendant provided a plausible explanation because she had been arguing with the male passenger. He acknowledged he ruled it out as being inaccurate.

5. Furthermore, there was no evidence the defendant was in any way fumbling when turning over her driver's licence. This is a common indicator which was conspicuously absent.

6. Up to the point where the defendant got out of the car, the officer indicated he had only formed a suspicion she had alcohol in her body. Otherwise, her speech was unremarkable. Her responsiveness was the same. She had already provided an explanation for the bad driving. Therefore, these could easily have been the actions and responses of a sober individual.

7. The next observation in sequence was her being unsteady on her feet. However, the officer provided no details and could not define what he meant by this. He then saw her barefoot. Counsel submits it would be logical to expect a person not wearing shoes to be cautious about her footing.

8. The officer conceded it might be difficult for one to put on high heels, particularly when wearing a skin-tight skirt.

9. Regarding his observation of glassy eyes, it is significant he did not note them to be bloodshot or that her pupils were dilated. He quite fairly acknowledged the smoke in the car could explain the condition of her eyes.

10. Up to and including all of the above, the officer had still not formed the opinion her ability to operate a motor vehicle was impaired by alcohol. This is why he walked her to the back of the car. While doing so, he detected the odour of alcohol on her breath. She then made an admission about a modest amount she had consumed some time earlier. He described her as walking "slow". Counsel asks, rhetorically, what changed to elevate his opinion above mere suspicion?

11. The officer had absolutely no reason to think it would have been easy for the defendant to walk in 6 inch high heels while wearing a tight skirt. Granted, he had no knowledge of her experience wearing shoes like this. Nonetheless, her merely walking "slow" should not elevate, or tip the scales from non-impairment to impairment. Although the officer may have considered this as significant, subjectively, it is not objectively tenable. Walking, in itself, is a particularly weak indicator of impairment, and cannot amount to an objectively discernable standard. Counsel submits the Court could almost take judicial notice that anyone wearing high heels would walk slowly.

12. Accordingly, counsel submits the officer took an impermissible shortcut. Quite frankly, the situation "cried out" for him to have used an approved screening device (ASD).

13. Although the case law supports the proposition that the police are often faced with situations where they must make quick decisions, there are certain scenarios, like the present one, where the decision can be made too quickly. The time from first observation to arrest was only 3 minutes. The decision made by the officer, therefore, constituted an impermissible shortcut. Frankly, there was no rush in this investigation. The officer acted precipitously.

[8] Counsel tendered 4 cases for the Court's consideration.

[9] In R. v. Cooper, [1993] O.J. No. 501, a decision of Justice MacDonnell of the Ontario Court of Justice (as he then was), the Court allowed an application for an order excluding breathalyzer results on the basis there was an absence of reasonable and probable grounds for making the demand. At the time of the defendant's arrest, the only evidence his ability to drive might be impaired included a strong odour of an alcoholic beverage coming from inside his vehicle, his eyes were glassy, and his speech appeared to be slurred. The officer admitted there was nothing unusual about the manner of driving, nor was there anything abnormal about the way in which he walked to the police cruiser. He was extremely cooperative. The Court held that a review of whether the officer's belief was based on reasonable and probable grounds involves more than a search for some circumstances which may offer support for this belief. Rather, it is the totality of the circumstances known to the officer, including those which undermine the belief, which must be assessed. Although none of the observations made, by themselves, indicated impairment, nonetheless, this did not rob them of value as circumstantial evidence. However, each of them had shortcomings as a badge of impairment. A strong odour of an alcoholic beverage, for example, may confirm consumption, but says nothing about the effect. The others, including glassy eyes and slurred speech require a subjective assumption as to the normal state of the subject's eyes and speech. These are inevitable in assessing suspected drinking drivers, and there is nothing wrong with making them. However, in a situation where the subject is a complete stranger, these are weak indicators of impairment. Considering all the circumstances, the Court found the officer could not have had more than a suspicion. Based on this, he might properly have required a roadside screening test, but by placing the defendant under arrest and proceeding directly to a breathalyzer demand, he took an impermissible shortcut. Furthermore, on a s. 24(2) analysis (pre-Grant), the evidence was not saved. Regarding the seriousness of the violation, while the officer did not act maliciously or with the intention of violating the defendant's s. 8 rights, he did not act in good faith either, since he had no more than a suspicion. His obligation, therefore, was to either proceed with a screening test, or to leave the defendant alone. To detain him and transport him in custody to a police station on a mere suspicion was a serious interference with his right to be left alone.

[10] In the case of R. v. Lin, 2007 ONCJ 312, a decision of Justice Lampkin, dated February 16, 2007, the defendant was involved in a motor vehicle accident. He told the investigating officer he had consumed 3 cups of wine at least an hour before. The officer noted his bloodshot eyes and the smell of alcohol. However, there was no unsteadiness or anything out of the ordinary about his walk. There were no balance problems and no slurred speech. The Court found the officer did not have reasonable and probable grounds to form the opinion of impairment. The Court recognized the officer was entitled to rely on the combination of his observations to form his opinion, however, this also includes factors which undermine the belief. There was no evidence of slurred speech, unsteadiness, no fumbling with papers, no difficulty getting in or out of the police cruiser, and no evidence of any impoliteness or inappropriate behaviour. The only indicia of impairment were the accident, the odour of alcohol, and the bloodshot eyes. The Court held that although the officer may have had subjective grounds, he lacked objective grounds to form the opinion.

[11] The case of R. v. Leonardo, 2009 ONCJ 507, a decision of Justice Gage, dated October 22, 2009, is also instructive. The officer noted the odour of alcohol on the defendant's breath, and his eyes were glassy. He asked him to step out of the bar where he was being questioned. On the way out, the officer noted unsteadiness, although there was no stumbling or leaning. The Court concluded the information available to the officer did not elevate it to a level above the threshold of suspicion, referred to in Cooper. In other words, his subjective belief was not objectively discernable, and a reasonable person standing in the shoes of the officer with the same information would not be justified making an arrest or demand. The taking of a breath sample pursuant to a warrantless search, therefore, was a breach of s. 8. Regarding the s. 24(2) Grant analysis, the breach was found to be serious. The requirement of reasonable and probable grounds is a long-standing and well-known standard. While the failure to properly apply it by failing to account for obvious facts that call the adequacy of the grounds into question may not constitute bad faith, it is not properly characterized as good faith either. The Court found the officer took an impermissible short cut. Although the police conduct was neither egregious or deliberately oppressive, nonetheless, the ease with which the grounds could have been shored up is indicative of a lack of care in applying the appropriate rigour to this important condition precedent to the arrest of a citizen. Accordingly, the police conduct fell somewhere just over the middle of the fault line continuum. The officer could have cleared this matter up by merely proceeding to administer an approved screening device. Regarding the impact of the breach, the defendant's liberty and dignity by having to sit in the police cruiser and then being driven to the station and held in custody for approximately 2 hours militated in favour of exclusion. Society's interest in adjudication of these types of cases on the merits would favour inclusion. However, when balancing these factors, the Court held the procedural requirements vitally important to the defendant, and of longstanding prominence in the overall scheme of criminal justice, as well as the inappropriate laxity in the application of this standard by the police, resulted in exclusion of the evidence.

Counsel submits the same analysis should apply in the present case. The Court should find there was a real departure from the standard of reasonable grounds exhibited. Although perhaps not entirely a form of stereotyping as to how a woman might walk in high heels in a tight skirt, nonetheless, it was unreasonable for the officer to conclude impairment merely because she was walking "slow".

[12] The case of R. v. Winter, 2010 ONCJ 147, a decision of Justice S.B. Brown, of the Ontario Court of Justice dated March 11, 2010, is also helpful to the analysis. The defendant was observed travelling at a high rate of speed on the Queen Elizabeth Way and was swerving in between lanes. The officer had no note of how many times this occurred and had no independent recollection. Her evidence regarding the swerving was very imprecise and vague, and of little assistance to the Court. The officer observed the defendant to have red, glossy eyes, and red rosy cheeks. There was an admission of consumption of alcohol (2 glasses of wine). The officer formed the suspicion the defendant had alcohol in her system and requested an ASD. It was delivered approximately 4 minutes later. While waiting, the defendant became agitated and was trying to use her cell phone. The officer told her she could not. The defendant raised her voice and started yelling at the officer. The officer changed her mind and decided she now had grounds to arrest and decided not to administer the ASD. In the analysis, the Court recognized there was no legal obligation by police to use the roadside procedure, as the ASD is merely an investigative tool. However, the Court still had to be satisfied the officer was not acting on tenuous or unreliable evidence grounded only in suspicion and hypothesis. When the officer decided she had grounds to make the breath demand, the only change or addition to the grounds available to her was the odour of alcohol and the defendant becoming agitated. Given the imprecise manner in which the officer gave her evidence regarding particulars of the erratic driving, and the total lack of observable indicia of impairment of gross or fine motor skills, and although an argumentative stance was taken by the defendant, the officer had no more than subjective grounds. Although the constellation of observations at the roadside supported the reasonable suspicion, the Court held the officer should have continued on the prudent course of requiring the defendant to provide a breath sample into the ASD, particularly since it had arrived on scene at approximately the same time the officer changed her mind. Regarding the s. 24(2) analysis, the Court favoured exclusion when considering the seriousness of the breach. The decision to forgo the ASD test was a somewhat arbitrary and capricious change of mind that may well have been resorted to as a show of power, or in an attempt to "punish" the defendant for her behaviour. The impact of the breach also favoured exclusion, as it had serious implications for the liberty and dignity of the defendant. Although societal interests in adjudication on the merits favoured inclusion, the Court noted there was no accident involving property damage or physical harm. When balancing these factors, the Court held the admission of the breath results would bring the administration of justice into disrepute. The Court also commented on the systemic concern because the standard of investigation of drinking- offences is presumed to be well-known to police officers.

3.2 The Crown

[13] The Crown asks the Court to consider the following points:

1. Despite the vigorous cross-examination, the Court should find, on the totality of the evidence, the officer had the grounds to make a lawful demand.

2. The Court should have no difficulty in finding he had the necessary subjective grounds.

3. To satisfy the objective grounds, this is not an onerous test. Given the threshold set out in R. v. Stellato, [1993] O.J. No. 18, the Court need only determine, ultimately, whether there is even a slight degree of impairment.

4. Accordingly, the test is not whether the observations and decisions by the officer were absolutely accurate, but whether they were reasonable in the circumstances.

5. It should be noted there is no other evidence to consider in this case other than that of the officer. No evidence was called by the defence.

6. Although there may be competing inference to be drawn from individual factors, it is an error in principle and law to isolate and test the individual pieces of evidence.

7. Based on the observations made by the officer, he contemplated administering an ASD, however, it is not necessary in law to do so.

8. Much has been made of the apparent short tight skirt worn by the defendant. The officer was unaware of the elasticity of the material. In any event, this information should not rise to the level of accounting for the reason why the defendant may have been walking slowly.

9. The case law requires the Court to consider there is no mathematical formula or checklist which must be followed when determining possible impairment. Quite obviously, various individuals exhibit different indicators and symptoms at different times. As an example, there are scenarios where an individual might demonstrate absolutely no indicia of impairment, and yet blow significantly over the legal limit.

10. Therefore, although there may be competing inferences, this does not necessarily render the officer's opinion unreasonable when considering the totality of the circumstances.

11. Although the officer's somewhat generic observation of noting the defendant to be unsteady may not have been ideal, his observation of her having difficulty putting on her shoes shows there may have been a motor skills issue. The important point is that this constituted reasonableness, not only to the officer's subjective belief, but it was objectively discernable.

12. The Court should not make much of the defence explanation for the slow walking. There is no evidence she could not walk at a regular pace. The important point is that it should not detract from the reasonableness of the officer's opinion. In any event, counsel asks, rhetorically, how could wearing a short skirt affect one's ability to walk? It might be a different story if, for example, she was wearing a long dress past her knees, which might well have impeded her ability to walk easily.

13. Each of the cases tendered by the defence is distinguishable.

14. In Winter, the Court found the evidence of the officer was imprecise and vague. In the present case, however, the officer's recollection of the driving is much stronger. It included weaving and speed fluctuations. The officer also observed the driving himself. He made a calculation as to how far the car went into one of the lanes. It did not signal when changing lanes. It then stopped at a green light. The officer's evidence in the present case therefore, was far more cogent and detailed.

15. In Leonardo, there was less evidence of observations of impairment than in the present case, as well as less time to have made them. In any event, the important point is there should not be a scorecard or tally sheet.

16. In Cooper, there were fewer indicia of impairment as well as less observations made by the officer to be in a position to satisfy the reasonableness test.

17. In Lin, there was minimal evidence regarding impairment before the breath demand was made.

18. When considering the s. 24(2) analysis, unlike the Leonardo case, where Justice Gage found the actions of the police to be just over the fault line, the officer in the present case made a greater number of cogent observations about impairment.

19. In conclusion, therefore, the officer was very aware of what his responsibilities were. He articulated he knew he must consider the totality of circumstances in arriving at his decision.

4.0 Analysis

4.1 Reasonable and Probable Grounds – General Principles

[14] It is, of course, axiomatic that the existence of reasonable and probable grounds entails both an objective and a subjective component.

[15] The Crown need not establish a prima facie case. It will be enough to show the findings of fact objectively support the officer's subjective belief that the suspect was impaired, even to a slight degree.

[16] Judicial scrutiny of reasonable grounds have recognized the context within which the police officer's obligation operates. Police must make quick but informed decisions. They make them based on available information which is often less than exact or complete.

[17] A constellation of objectively discernable facts, however, is a necessary feature of reasonable grounds. The test relates to a reasonable person standing in the shoes of the investigating police officer.

[18] While reasonable and probable grounds must not be inflated to the context of testing trial evidence, neither must be so diluted as to threaten individual freedom.

[19] Given the legal test may be established where the Crown proves any degree of impairment from slight to great, reasonable and probable grounds exists as a fact-based exercise, depending on all the circumstances of the case.

[20] It must also not be forgotten that reasonable grounds as to impairment is essentially an opinion. The officer is not required to establish a prima facie case for conviction before making the arrest, or to consider all of the alternative explanations for the observed conduct.

[21] Furthermore, the officer is not required to resolve all possible alternate explanations for indicia before considering the circumstances as a whole.

[22] Therefore, the Court must assess that much of the defence cross-examination was in essence directed at individual pieces of information from which the officer formed his opinion. As well, the thrust was, in essence, that a particular observation relied on could be explained in a way inconsistent with impairment.

[23] The determination does not involve the equivalent of a scorecard with a list of all the usual indicia of impairment, and counsel noting which ones are present and which are absent as the essential test. There is no mathematical formula with a certain number of indicia being required before reasonable and probable grounds objectively exist.

[24] All too frequently, submissions are made that bad driving, and an odour of alcohol on the driver's breath can never amount to impaired driving, or that the defendant was not involved in an accident or did not stumble getting out of the car and was, therefore, not impaired. The error of this approach is to elevate what are essentially individual factual circumstances to propositions of law.

4.2 Application of the Principles to the Evidence

[25] This is a close call.

[26] The case law provided, although of some persuasive value, cannot necessarily answer the ultimate question.

[27] This case turns not so much on the lack of credibility but on the reliability of the officer in giving his evidence.

[28] Although he did nothing wrong, quite frankly, he did not do everything right either.

[29] He was rather vague on certain matters where he should not have been. In fact, his honesty and candour exposed his inability to be able to articulate precisely what elevated his suspicion to that of grounds to make a breath demand. It was also his inability to state what changed his mind from contemplating administering an ASD to then making the demand.

[30] Had he done so, and had there been a fail result, this represents almost irrefutable grounds for the formal breath demand. However, when an officer does not employ this procedure, he effectively runs the risk he lacked the necessary grounds for the demand. Such is the case here.

[31] By the barest of margins, the Court finds the officer did not have objectively tenable grounds to make the demand.

[32] This also affords a defence to the charge of refuse breath sample.

[33] Regarding s. 24(2), the Court agrees with the analysis set out in the above-noted case law, particularly Leonardo, and finds, on balancing the Grant factors, the defendant has met the necessary onus on this Charter application, on a balance of probabilities. Therefore, any subsequent evidence cannot be saved.

[34] Accordingly, the charges are dismissed.

Released: January 31, 2014

Justice S.R. Clark