Court File and Parties

Date: September 26, 2018

Court File No.: Brampton 17-0515

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Robert Hurdon

Before: Justice Paul F. Monahan

Trial Heard: September 18, 2018

Reasons for Judgment at Trial Released: September 26, 2018

Counsel:

• A. Fedak-Tarnopolsky, counsel for the Crown
• B. Starkman, counsel for the defendant Robert Hurdon

Judgment

MONAHAN J.:

Introduction and Overview

[1] Mr. Robert Hurdon is charged with having the care or control of a motor vehicle while his ability to do so was impaired by alcohol, contrary to s. 253(1)(a) of the Criminal Code of Canada (the "Code"). In addition, he is charged with having the care or control of a motor vehicle having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 mg of alcohol in 100 mL of blood, contrary to s. 253(1)(b) of the Code. The offences are alleged to have taken place on January 1, 2017.

[2] While I will review some of the evidence in further detail below when I consider the issues in this case, by way of overview I note the following as concerns the facts. Mr. Hurdon was found by two plain clothes police officers (Officers Matt Lee and Nick Carroll) slumped over asleep or unconscious sitting in the driver's seat behind the wheel of his car. His car was stopped for no apparent reason in a live lane of traffic at a functioning traffic light on Dixie Road, a busy roadway in the City of Mississauga. Dixie Road has six lanes of traffic: three lanes southbound and three lanes northbound. Mr. Hurdon had his vehicle stopped in the center southbound lane, which as I say was a live lane of traffic. He had alcohol on his breath. His car was running and in gear. Mr. Hurdon had his foot on the brake as he was slumped unconscious. The two plain clothes police officers had some difficulty waking Mr. Hurdon. The plain clothes officers called for assistance as their primary responsibility was their work in the criminal investigations bureau and they were on their way to a break and enter call. Officer Kosakowski, a uniformed Peel Regional Police officer with approximately seven years' experience at the time, arrived on scene minutes later. He smelled alcohol on the breath of Mr. Hurdon and arrested him for impaired care or control. Mr. Hurdon later provided breath samples of 193 mg of alcohol in 100 mL of blood and 194 mg of alcohol in 100 mL of blood.

[3] The central issue at trial involved Mr. Hurdon's argument that police did not have reasonable and probable grounds to arrest him for impaired care or control and that therefore there was a violation of section 8 and 9 of the Charter. It was his further submission because of the alleged sections 8 and 9 violations that, among other things, the breath sample evidence should be excluded. Central to the defence's argument of a section 8 violation concerned the defence's submission that the arresting officer did not have subjective grounds to believe that Mr. Hurdon had committed the offence of impaired driving. As a result, it was the defence's submission that the over 80 charge had not been proved. The defence also submitted that the impaired care or control has not been proved beyond a reasonable doubt. The Crown submitted that there were no Charter violations and that both charges had been proved beyond a reasonable doubt.

[4] Mr. Hurdon's section 8 and 9 Charter application was heard, on consent, on a blended basis with the trial proper.

[5] At trial, the Crown called three Peel Regional Police witnesses: Officers Matt Lee, Nick Carroll and Michael Kosakowski. The defence called no evidence either on the Charter application or the trial proper.

[6] The trial was heard on September 18, 2018. I reserved judgment until September 26, 2018.

[7] The issues that arise from the evidence and argument are as follows:

Issues

Issue I – Was there a section 8 and 9 Charter violation. If so, should the evidence of the breath samples and the observations made of Mr. Hurdon after the decision was made to arrest him be excluded from evidence pursuant to section 24(2)?

Issue 2 – Has the Crown Proved the over 80 Charge Beyond a Reasonable Doubt?

Issue 3 – Has the Crown Proved the impaired care or control charge Beyond a Reasonable Doubt?

[8] I will examine each issue in turn.

Issue I – Was there a section 8 and 9 Charter violation. If so, should the evidence of the breath samples and the observations made of Mr. Hurdon after the decision was made to arrest him be excluded from evidence pursuant to section 24(2)?

Overview of the Issue

[10] One of the central issues in this case is whether there was a violation of sections 8 and 9 of the Charter and, if so, whether any evidence should be excluded pursuant to s. 24(2) of the Charter.

[11] As indicated above, it is the defence's submission that Officer Kosakowski did not have reasonable and probable grounds to arrest the defendant and that as a result there was a section 8 and 9 Charter breach. The defence further submits that the breath samples and the observations which Officer Kosakowski made after he made the decision to place the defendant under arrest should be excluded pursuant to section 24(2). It was the Crown's position that Officer Kosakowski had reasonable and probable grounds to make the arrest but that even if he didn't, no evidence should be excluded.

[12] In order to determine this issue, it is necessary to examine Officer Kosakowski's evidence in some detail.

[13] At about 9:24 PM on January 1, 2017 Officer Kosakowski received information over the police radio that Officer Carroll had a driver in a vehicle on Dixie Road in the southbound lanes sleeping in his vehicle. Officer Kosakowski arrived on scene shortly thereafter, at approximately 9:26 PM.

[14] Officer Kosakowski saw the subject vehicle in the center lane of traffic on Dixie Road. His evidence established that Dixie Road is a busy roadway with three lanes running northbound and three lanes running southbound. The defendant's vehicle was stopped in the center lane of the southbound lanes—a live lane of traffic. Officer Kosakowski said he spoke to Officer Carroll. Officer Carroll gave him essentially the same information he had received over the air namely that a person was sitting in the driver's seat and was or had been sleeping. When Officer Kosakowski arrived on scene he saw the driver's side door of the vehicle open. Officers Lee and Carroll were beside the car. The defendant was in the driver's seat. Officer Kosakowski approached Mr. Hurdon and smelled alcohol on the breath of the defendant and he formed the opinion that he was impaired.

[15] Officer Kosakowski did not arrest the defendant immediately as Mr. Hurdon sat in the vehicle. He was concerned that it would not be safe to do so at that location. He said the accused was in a live lane of traffic and so he took him back to his police cruiser with Officer Lee assisting. As he did so he said Mr. Hurdon walked "pretty good" but that he detected that the defendant was "stumbling a little". He also said that he had blood shot eyes. Officer Kosakowski then arrested Mr. Hurdon for impaired care or control as he stood beside the officer's marked police cruiser.

[16] In cross-examination, Officer Kosakowski repeated that he formed the opinion that the accused was impaired as soon as he smelled the alcohol on the breath of Mr. Hurdon. He reiterated that he took him to his cruiser before arresting him because they were on Dixie Road and where Mr. Hurdon had stopped his vehicle was very dangerous.

[17] While I do not have a transcript of Officer Kosakowski's evidence, the following reflects the substance of some of the questions and answers based on my own notes relating to some of the evidence on this issue. To be clear, this is by no means all of his evidence and I have considered the whole of the evidence in arriving at this decision. The following relates only to some points that arose in argument.

Excerpts from the Evidence of Officer Kosakowski

In Chief:

Q. Just prior to 926 did you receive any information, this is only for the purposes of grounds?

A. Yes. PC Carroll went over the air and stated that there is a driver sleeping at the wheel at the intersection of Dixie Road just north of Highway 401 in the southbound lanes.

[As indicated above, when he arrived on scene Officer Kosakowski received from Officer Carroll the same information he had received over the police radio namely that the accused was in the driver's seat sleeping]

Q. Why did you walk him back to the police cruiser?

A. Once the door was open I smelled alcohol coming from his breath. I formed the opinion he was impaired. At that point I walked him back to my cruiser. He was told he was under arrest for impaired care and control.

Q. Did you say anything to him as to why he was being asked to go to the cruiser?

A. Yes. He was told—once I smelled alcohol, I told him he was being arrested for impaired care and control. I mean I did have the grounds to make the arrest—it is just being where we were I prefer to walk him back to cruiser. It was a little less hectic than being over there.

Cross Examination:

Q. My friend asked you about observations you made of my client but you stated in your evidence before the break you formed your opinion that he was impaired as soon as you smelled alcohol—the only reason you brought him to your cruiser was I don't know, safety reasons.

A. Safety reasons basically. It is three lanes each way—you got a vehicle—it is just easier and safer.

Q. Now when you detected the odour of alcohol I mean that by itself does not tell you much other than he has likely consumed some amount of alcohol, right?

A. That is correct.

Q. It does not tell you how much he has consumed.

A. No.

Q. Nor does it tell you the effect that consumption was whatever it was.

A. Hmm. Hmm.

Q. So I'm going to suggest you that although you said that you—I'm going to suggest to you that at the time you directed him out of the vehicle for the purpose of arresting him that at that point what you had at that point was a suspicion that he had alcohol in his body but nothing more than that.

A. That is correct.

[18] Based on the foregoing questions and answers, and particularly the last question and answer, the defence submits that the officer did not have a subjective belief that he had reasonable and probable grounds to arrest the defendant for impaired care or control. The defence submits that I should interpret the foregoing testimony, and in particular the last question and answer, as indicating that Officer Kosakowski thought that the only ground he had for arresting the defendant was a suspicion that he had alcohol on his breath. The defence submits that the fact that Mr. Hurdon was sleeping in his car in a live lane of traffic had nothing to do with the subjective grounds for arrest held by Officer Kosakowski.

[19] The defence further submits that Officer Kosakowski, in effect, did not understand the difference between the grounds required to arrest someone for impaired driving and the grounds required to make an approved screening device ("ASD") demand. The defence says that Officer Kosakowski in effect admitted in his testimony that the only ground he had to make the impaired arrest was a suspicion of alcohol in the body of the defendant. The defence submits that while there may have been objective grounds available to him for the arrest, that I could have no confidence that Officer Kosakowski actually understood the requirements of reasonable and probable grounds for an impaired care or control arrest.

Law

[20] I have a different view of the evidence as informed by the case law with respect to reasonable and probable grounds. Before explaining my views let me set out a brief overview of the law with respect to reasonable and probable grounds. The following legal principles apply:

a) In the case of a warrantless search or seizure, in order to justify the arrest made and approved instrument demand under 254(3) of the Code, the Crown must establish on a balance of probabilities that the officer had reasonable and probable grounds to believe that the accused person was committing, or anytime within the preceding three hours had committed, the offence of impaired operation (or care or control) or driving over 80: R. v. Bush (2010), 2010 ONCA 554, 101 O.R. (3d) 641 (C.A.) at para. 37;

b) Reasonable and probable grounds does not require proof beyond a reasonable doubt or even the establishment of a prima facie case for conviction: Bush at para. 37. In a drinking and driving case, the reasonable and probable grounds standard is not an onerous one: see Bush at para 46 citing R. v. Wang, 2010 ONCA 435 at para 17;

c) Reasonable and probable grounds have both a subjective and objective component. The subjective component requires the officer to have an honest belief that the suspect committed the offence. The objective component requires that the officer's belief must be supported by objective facts such that a reasonable person in the place of the officer would conclude that there were indeed reasonable and probable grounds to believe that the suspect's ability to drive was even slightly impaired by the consumption of alcohol: Bush at paras. 38 and 48;

d) The Ontario Court of Appeal stated further in Bush that there is no minimum time nor mandatory questioning that must occur before the officer can have reasonable and probable grounds. The officer is required to assess the situation and competently conduct an investigation he or she feels is appropriate to determine if reasonable and probable grounds exist: Bush at paras. 60 and 67;

e) The Ontario Court of Appeal in Bush also noted that the issue is not whether the officer could have conducted a more thorough investigation. The question is whether when he or she made the breath demand he or she "subjectively and objectively had reasonable and probable grounds to do so…that an opinion of impairment of the ability to operate a motor vehicle can be made in under a minute is neither surprising or unusual": Bush, supra, at para. 70;

f) The law does not demand the same of the police officer in an arrest situation as that expected of a justice of the peace in a search warrant application case. The police officer must make his or her decision in a volatile environment with incomplete information: Bush at para 43 citing R. v. Golub (1997), 34 O.R. (3d) 743 (C.A.) per Doherty J.A.;

g) An officer must take into account all of the information he or she has and can only disregard unreliable information: Bush para 48 quoting from Golub per Doherty J.A.;

h) The issue of whether or not there were reasonable and probable grounds involves an examination of the totality of the circumstances, not a dissection of each one of the individual indicia which may or may not exist. There is no mathematical formula or impaired driver scorecard: Bush para 55-56. For example, Mr. Justice Rosenberg, for the Court of Appeal in R. v. Costello (2002), 22 M.V.R. (4th) 165 (Ont. C.A.), as discussed in Bush at para 63 and 64, held that the absence of common indicators of impairment did not undermine the trial judge's finding of reasonable and probable grounds. In that case, a tip from the civilian as confirmed by the officers own observations of the odour of alcohol, swaying and bloodshot eyes were enough to support the trial judge's finding that the police officer had reasonable and probable grounds.

i) The Ontario Court of Appeal in Bush commented on the relationship that an unexplained accident may play in giving rise to reasonable and probable grounds. In particular, the Court stated as follows at para 54:

"Whether reasonable and probable grounds exist is a fact-based exercise dependent upon all of the circumstances of the case. The totality of the circumstances must be considered… Consumption plus an unexplained accident may generate reasonable and probable grounds although that may not always be the case." (Emphasis added)

[21] While it is the Crown's obligation to prove on a balance of probabilities that the arresting officer had reasonable and probable grounds to the make the arrest, the police officer does not necessarily have to expressly set out his or her reasonable and probable grounds in their testimony. I note that in R. v. Clarke (2000), 1 M.V.R. (4th) 298, Justice Durno made this point when he said:

There are authorities which support the Crown's contention the officer does not have to say the "magic words". In some cases this is related to whether the officer had to state the reasonable and probable grounds for a breathalyzer demand … R. v. Hall (1995), 22 O.R. (3d) 289 (Ont. C.A.), R. v. Fraser [1996] O.J. No. 473. In all of cases it was determined that a court could infer from circumstantial evidence the officer had the requisite belief without having said the "magic words." (Emphasis added)

[22] I note that in two of the cases referred to by Justice Durno, the subjective component of reasonable and probable grounds is further explained. In R. v. Hall (1995), 22 O.R. (3d) 289 (Ont. C.A.) the Court of Appeal stated as follows at para 36:

I do not think that it is necessary that an arresting officer resort to particular words to satisfy the subjective component of the reasonable and probable grounds requirement. Indeed, I note that Constable Clarida was not asked, either in examination in chief or cross-examination, if he thought he had reasonable and probable grounds to arrest the appellant. In my opinion, a fair reading of Constable Clarida's evidence, taken as a whole, supports the conclusion that he thought that he had reasonable and probable grounds to arrest the appellant, particularly after he noticed the appellant's jean jacket and then the jewelry the appellant displayed when he produced his birth certificate. (Emphasis added).

[23] Similarly, Justice MacDonnell (as he then was) in R. v. Fraser, [1996] O.J. 473, explained that the subjective component of reasonable and probable grounds is nothing more than a finding of a state of mind which is a question of fact which may be proved either by direct or circumstantial evidence. In that case, he stated as follows at para 12:

The fact that neither the Crown nor the defence asked either Officer whether he believed he had reasonable grounds to arrest the accused in that neither officer testified to such a belief does not preclude a finding that the belief existed. It is not necessary to have direct evidence from a person who state of mind is in issue in order to make a finding as to what that state of mind was. A state of mind—knowledge, intention, belief, purpose—is a matter of fact, and like any other fact may be proved by the direct or circumstantial evidence. (Emphasis added)

[24] Justice MacDonnell went on to find that the officer in the case before him did have the subjective component of reasonable and probable grounds. The Court said "in my opinion, the only reasonable inference to be drawn from Pitt's testimony is that he believed, on the basis of the observations that he made, that he had reasonable grounds to arrest the accused."

Application of the Law to the Facts

[25] The defence submits in this case that when Officer Kosakowski answered in the affirmative when it was put to him "at the time you directed him out of the vehicle for the purpose of arresting him that at that point what you had at that point was a suspicion that he had alcohol in his body but nothing more than that", that somehow Officer Kosakowski was really answering a different question. The defence submits that he was really being asked to set out all of his grounds for the arrest and that the officer was saying that his only ground for the arrest was the fact that Mr. Hurdon had alcohol on his breath. In my view, that is not a fair reading or interpretation of his evidence.

[26] Like the cases of Hall and Fraser, the arresting officer in this case was not asked either by the Crown or the defence as to what his subjective grounds for the arrest were. As the courts in Hall and Fraser indicate, it falls to the court to determine based on the evidence what the state of mind was of Officer Kosakowski as concerns his subjective grounds for the arrest. In my view, that determination does not turn on a single question and answer but rather must turn on a full and fair reading of Officer Kosakowski's evidence and the evidence as a whole.

[27] I have considered the evidence as a whole and I have absolutely no doubt that when Officer Kosakowski arrested Mr. Hurdon for impaired care or control he had at least three points in mind as concerns his subjective grounds for his arrest: the fact that Mr. Hurdon's vehicle was stopped in a dangerous location for no apparent reason in the middle lane of a busy six lane roadway (the middle lane of the three lanes heading southbound); the fact that Mr. Hurdon had been found slumped over and apparently sleeping in his vehicle in the live lane; and the fact that Mr. Hurdon had alcohol on his breath. I have absolutely no doubt that if he had been asked the question as to what his reasonable and probable grounds were he would have recited at least the foregoing factors. I say all of the foregoing for the following reasons:

(i) In order to fulfil the subjective component of reasonable and probable grounds, Officer Kosakowski had to have an honest belief that the defendant had committed the offence of impaired care or control. More than once in his testimony, Officer Kosakowski expressed the view that he had the grounds to arrest Mr. Hurdon for impaired care or control. While this does not answer the question of what the content of his subjective grounds were, it certainly fulfils the honest belief part of that requirement;

(ii) The whole point of the radio call by Officer Carroll was to seek assistance with respect to a driver who he had found sleeping in his vehicle in the driver's seat in a live lane of traffic. There was no other reason for the call. That was what Officer Kosakowski learned when he heard the radio call and that was why he went to the scene. The circumstances outlined in the radio call were confirmed to him when he arrived on scene and spoke to Officer Carroll briefly and saw what was happening with his own eyes. So the starting point for Officer Kosakowski's involvement was the point that there was a driver sleeping or unconscious in his vehicle in a live lane of traffic on a busy roadway. Officer Kosakowski was on the scene within two minutes of learning of this information and then made his decision to arrest Mr. Hurdon shortly thereafter when he smelled alcohol on his breath;

(iii) As further support for the proposition that the location of the vehicle stopped in the middle of the live traffic was in the mind of Officer Kosakowski was his evidence that it was a dangerous situation and that for the safety of himself and Mr. Hurdon he needed to briefly delay the arrest until he could get both of them back to his police cruiser and out of harm's way which is precisely what he did. The issue of danger and safety as concerns where Mr. Hurdon has had vehicle was mentioned more than once in Officer Kosakowski's testimony in chief and in cross.

(iv) It is clear to me that when Officer Kosakowski answered what the defence views as a critical question and agreed that "what you had at that point was a suspicion that he had alcohol in his body but nothing more than that", he was speaking only of what he knew about the amount of Mr. Hurdon's alcohol consumption. It was no different to him than the immediately prior questions directed at the point that he could not tell simply by virtue of the smell of alcohol on Mr. Hurdon's breath as to how much alcohol he had consumed.

[28] I am of the view that the only reasonable inference to be drawn from the evidence including the circumstantial evidence is that Constable Kosakowski arrested Mr. Hurdon because he had alcohol on his breath and had been found sleeping in his vehicle which was stopped in a live lane of traffic. As it happened, before he could affect the arrest due to safety concerns, he obtained further grounds including that Mr. Hurdon was unsteady. The defence suggests that I should be in doubt as to whether or not Officer Kosakowski actually noticed any such unsteadiness. The defence submits that Officer Lee had no note of the unsteadiness and that he was directly involved in escorting him to the car. I understand that Officer Lee had no notation of this but in my view that was understandable. Officer Lee was not taking responsibility for the arrest. Indeed he was on his way to a break and enter investigation as part of his normal duties with the criminal investigations Bureau.

[29] I recognize that the unsteadiness on his feet point came after Officer Kosakowski had already formed the view that the defendant was impaired. In my view, it was not necessary for his reasonable and probable grounds and it forms no part of my analysis on this issue.

[30] As I indicated above, in my view, the subjective grounds of Officer Kosakowski at the time he formed the view that Mr. Hurdon had committed the offence of impaired care or control (where the impairment was by alcohol) namely that the defendant had been found with alcohol on his breath after having been found asleep or unconscious at the wheel of his car in a live lane on a busy six lane roadway were objectively reasonable. In my view, the circumstances are similar to the situation in Bush where the Court found that consumption of alcohol combined with an unexplained accident may give rise to reasonable and probable grounds. Here, one has a situation analogous to the unexplained accident in Bush. In this case, there was an unexplained situation where a person has alcohol on their breath and they were asleep at the wheel of the car and stopped at a functioning traffic light in the middle of a busy highway in a live lane. There was no accident like in Bush but there was an accident waiting to happen. Arguably, this fact provided more support for objective reasonable and probable grounds than the accident in the Bush case. In any event, in my view, it provided a strong ground for Officer Kosakowski's subjective belief that the defendant had committed the offence of impaired care or control and his overall subjective grounds were objectively reasonable.

The Grant Analysis Considered in the Alternative

[31] If I am wrong and the defence submission is correct that Officer Kosakowski thought that the only ground he had and the only ground he needed to arrest the defendant for impaired driving was the fact that the defendant had alcohol on his breath then there would be a section 8 and 9 violation as the arrest would have been made without reasonable and probable grounds. Assuming that to be the case, I am of the view that no evidence should be excluded pursuant to the Grant analysis in any event and I will explain why.

[32] Section 24(2) of the Charter requires a consideration of the analytical framework laid down by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. The test involves a consideration of three factors: (i) the seriousness of the Charter infringing conduct; (ii) the impact of the breach on the Charter protected rights of Mr. Tyndall; and (iii) society's interest in adjudication on the merits. The Court must balance an assessment of each one of these factors in order to determine whether, considering all the circumstances, the admission of the evidence would bring the administration of justice into disrepute.

[33] As concerns the seriousness of the Charter infringing state conduct, the question is whether the admission of the evidence would bring the administration of justice into disrepute by suggesting that the courts will condone breaches of the Charter and the need for the courts to dissociate themselves from unlawful conduct. This factor involves an examination of the conduct of the police. The more severe or deliberate the state or police conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from the conduct so as to preserve public confidence in the rule of law.

[34] In this case, assuming the defence is correct then Constable Kosakowski was not be aware of the proper grounds required to arrest someone for impaired driving, this would amount to incompetence and negligence rather than bad faith per se. Nevertheless, it would be a significant failing because officers are expected to know the proper grounds required for an arrest recognizing that those grounds may be fluid and flexible depending upon the officer. However, in my view Constable Kosakowski did not intentionally set out to hurt anyone or knowingly offend their Charter rights. Further, the evidence of the other police officers, Officer Lee and Officer Carroll, make it clear that they acted in a competent fashion. All three Officers were trying to protect the safety of the public and the safety of Mr. Hurdon. Accordingly, looking at the police conduct as a whole I would find the seriousness to be moderate at most.

[35] As concerns the second Grant factor, the impact of the breach on the Charter protected rights of the accused, I consider the impact to be very low. In this case, assuming the defence's position is correct, then Officer Kosakowski did not have proper subjective grounds in his mind when he made the decision to arrest Mr. Hurdon for impaired care or control. However, notwithstanding whatever may have been in the mind of Officer Kosakowski, there were overwhelming subjective and objective grounds available to any police officer to arrive on scene and fully inform themselves concerning the circumstances and to make a proper arrest for impaired care or control. They include the point that Mr. Hurdon had been found with alcohol on his breath after he had been sleeping in a live lane of traffic on a busy roadway. Officers Lee and Carroll had further information including that the car was in drive and the defendant's foot was on the brake while he slept. Further, Officers Lee and Carroll knew that they had made significant attempts to wake Mr. Hurdon by pounding on the window and yelling at him all of which initially proved to be pointless as Mr. Hurdon remained asleep with his foot on the pedal and the car in drive. Further, I accept that Constable Kosakowski did detect unsteadiness with respect to the defendant's walking and some slurring of his words during rights to counsel.

[36] The point is as follows. Even if the defence is correct and somehow Officer Kosakowski did not have the proper subjective component of reasonable and probable grounds in order to make the arrest for impaired care or control, there were overwhelming reasonable and probable grounds easily available to any competent police officer to arrest Mr. Hurdon for impaired driving. According, I consider the impact on Mr. Hurdon's Charter protected rights to be very low. Another officer could have properly arrested Mr. Hurdon for impaired care or control and events would have transpired substantially along the lines as they did in this case. I recognize that Officer Lee and Officer Carroll were on the scene with most if not all of the foregoing information and yet they did not make an arrest. However, the reason for that is clear. They were plain clothes officers dealing with their work in the criminal investigations bureau and they needed a uniformed officer to come on scene and address the situation so that they could be on their way to address their primary police duties. Officer Kosakowski showed up and made the arrest thereby alleviating the need for the plain clothes officers to take any further steps with respect to the defendant.

[37] The third Grant factor, society's interest in an adjudication on the merits, favours inclusion. While there would be moderate seriousness to the conduct of the police (the first Grant factor), there was a low impact on the defendant's Charter protected rights. Balancing all of the Grant factors would not lead me to exclude the breath sample readings even if there was a section 8 and 9 violations as submitted by the defence.

Summary on Issue I

[38] I have concluded that there was no violations of sections 8 or 9 of the Charter. In the alternative, even if there were violations of sections 8 and 9 of the Charter, on the facts of this case, I would not exclude any evidence under section 24(2) of the Charter.

[39] Accordingly, the breath sample evidence is admissible.

Issue 2 – Has the Crown Proved the over 80 Charge Beyond a Reasonable Doubt?

[40] In light of my conclusion on Issue 1, the breath sample evidence is admissible and the over 80 charge is proved beyond a reasonable doubt. Mr. Hurdon was in the care or control of a motor vehicle when his blood alcohol content was approximately 190 mg of alcohol in 100 mL of blood. There will be a finding of guilt on the over 80 charge.

Issue 3 – Has the Crown Proved the impaired care of control charge Beyond a Reasonable Doubt?

[41] The Crown submits that the impaired charge has been proved beyond a reasonable doubt. The defence submits that it has not.

[42] The following test for proof of impaired care or control of a motor vehicle was stated by Labrosse J.A. for the Ontario Court of Appeal and approved of by the Supreme Court of Canada (see R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont.C.A.) at 384 affirmed, [1994] 2 S.C.R. 478):

In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out. (emphasis added)

[43] In considering this issue, I must ask myself whether on a consideration of all of the evidence, the Crown has proved beyond a reasonable doubt that the defendant's ability to operate a motor vehicle was impaired by alcohol.

[44] It is my view that a consideration of the evidence as a whole leads to only one conclusion: it has been proved beyond a reasonable doubt the defendant was in the care or control of a motor vehicle while his ability to do so was impaired by alcohol. I base this conclusion on a consideration of the evidence as a whole including the following:

(i) The defendant's blood alcohol readings were 190 mg of alcohol in 100 mL of blood. These readings are almost 2 and 1/2 times the legal limit. I recognize that absent expert evidence, the Court cannot consider the blood-alcohol readings alone as evidence that the defendant was impaired in his ability to operate a motor vehicle. However, the blood alcohol readings are evidence of the fact that the defendant had alcohol in his system. Further, together with other evidence, the blood alcohol readings may be considered for the purpose of determining whether the defendant was impaired in his ability to operate a motor vehicle: see R. v. Nandlall, [2009] O.J. No. 3452 (S.C.J.) (per Himel J.) at para. 6 and R. v. Selvarajah, [2011] O.J. 4158 (C.J.) (per Melvyn Green J.) at para. 17. In this case, the blood-alcohol readings are of such a level that it is obvious, when considered with the other facts, that the defendant was impaired by alcohol to at least a slight degree. Those other facts are reviewed below;

(ii) As I have indicated in my review of the reasonable and probable grounds issue, there was very poor care or control of the motor vehicle in this case. Mr. Hurdon had his foot on the brake with the car in drive as he sat slumped over the wheel asleep or unconscious at a traffic light literally oblivious to what was going on around him. He was in a live lane of traffic on a busy and major roadway creating a very dangerous situation for himself and others. At least one vehicle had to swerve to avoid him as he sat stopped in the roadway. He needed to be moved by police from that location in order to safely undertake his arrest;

(iii) The police had a difficult time waking Mr. Hurdon. They banged on his window and yelled at him. His sunroof was open but he still did not hear them at least initially. He was bewildered when he finally woke up; and

(iv) He was somewhat unsteady on his feet and slurred some of his words.

[45] On a consideration of the foregoing factors in the context of the evidence as a whole, I have concluded that the Crown has proved beyond a reasonable doubt the impaired care or control charge where the defendant's impairment was by alcohol.

Summary and Conclusion

[46] For the foregoing reasons, the over 80 and the impaired charges have been proved beyond a reasonable doubt. I will invite submissions of counsel as to whether one of the charges should be stayed in light of the double jeopardy principle.

Released: September 26, 2018

Justice Paul F. Monahan

Corrected Judgment; Minor typographical changes made to paras 22, 23, 25 and 44(iii) on September 26, 2018.