COURT OF APPEAL FOR ONTARIO

DATE: 20001219

DOCKET: C34448

CHARRON, BORINS and SIMMONS JJ.A.

BETWEEN: )

) Christine Tier,

HER MAJESTY THE QUEEN ) for the appellant

Appellant )

• and - )

Dean D. Paquette,

) for the respondent

PATRICIA MacPHERSON )

Respondent )

) Heard: November 27, 2000

On appeal from the order of Justice A. Whitten dated May 18, 2000

CHARRON J.A.:

[1] This is a Crown appeal from the decision of a summary conviction appeal court judge quashing the conviction of the respondent Patricia MacPherson for driving with over 80 milligrams of alcohol in 100 millilitres of blood contrary to s. 253(b) of the Criminal Code.

[2] On May 30, 1998, MacPherson was involved in a one-car accident. She was alone in her car at the time. There were witnesses to the accident, one of whom, Margaret Whitmore, testified at trial. Upon witnessing the accident, Whitmore immediately called 911 from her car phone and the police were dispatched. Constable Cheeseman attended on the scene within minutes of being dispatched. Upon her arrival, officer Cheeseman spoke to some of the witnesses and learned that MacPherson’s vehicle had suddenly lost control, hit a guardrail, crossed over the highway and come to rest partly on the shoulder and partly in the lane. The witnesses identified MacPherson as the driver of the vehicle. At the time the officer approached MacPherson, she was standing alone, immediately behind her vehicle, possibly two feet away. There was no one else around and nobody in her car. MacPherson identified herself to officer Cheeseman as the driver of the car. Officer Cheeseman testified that she could immediately detect an odour of alcohol on MacPherson’s breath and observed that MacPherson appeared to be a little disoriented. MacPherson told the officer that she drank a beer approximately one hour previously. On the basis of this investigation, officer Cheeseman testified that she formed a suspicion that MacPherson had alcohol in her system and, consequently, she administered a roadside screening test pursuant to s. 254(2) of the Criminal Code. The roadside screening device registered a “fail”. The officer then placed MacPherson under arrest and made a demand for breath samples pursuant to s. 254(3)(a). The subsequent analyses of MacPherson’s breath samples revealed blood alcohol concentration levels over the prescribed limit.

[3] In brief reasons, the trial judge held, on the evidence of Whitmore and officer Cheeseman, that MacPherson was the driver of the motor vehicle and that she had never given up care and control of it. The trial judge was also satisfied that the officer had formed a suspicion that MacPherson had alcohol in her body. On the question of timing, the trial judge held, even considering that thirty minutes may have elapsed between the time Whitmore and others saw MacPherson driving her vehicle, and the time the demand for breath samples was made, that “there was no more time than necessary in the circumstances for the officers to discharge their duties.” The trial judge therefore registered a conviction.

[4] The summary conviction appeal judge held that the roadside screening device demand was invalid because officer Cheeseman failed to articulate in her evidence any reasonable suspicion that MacPherson was the operator, or that she had care or control of her vehicle. Rather, the officer stated only that she suspected that MacPherson had alcohol in her body. On this sole basis, the summary conviction court judge excluded the breathalyzer results and quashed the conviction.

[5] This appeal turns on the interpretation of s. 254(2):

(2) Where a peace officer reasonably suspects that a person who is operating a motor vehicle or vessel or operating or assisting in the operation of an aircraft or of railway equipment or who has the care or control of a motor vehicle, vessel or aircraft or of railway equipment, whether it is in motion or not, has alcohol in the person’s body, the peace officer may, by demand made to that person, require the person to provide forthwith such a sample of breath as in the opinion of the peace officer is necessary to enable a proper analysis of the breath to be made by means of an approved screening device and, where necessary, to accompany the peace officer for the purpose of enabling such a sample of breath to be taken. [Emphasis added.]

[6] The issue raised on this appeal was authoritatively determined by this court in R. v. Swietorzecki (1995), 1995 444 (ON CA), 97 C.C.C. (3d) 285 (Ont. C.A.). Before making a demand under s. 254(2), a peace officer must reasonably suspect that a person who is operating or who has the care or control of a motor vehicle has alcohol in her body. Hence, the officer’s suspicion is in relation only to alcohol in the body. While the Crown must also prove beyond a reasonable doubt that the person to whom the demand was made was in fact operating the motor vehicle, or had care or control of it, in order for the demand to be legal, the officer’s suspicion does not have to extend to that additional fact. Therefore, the summary conviction appeal court judge erred in quashing the conviction on the basis that he did.

[7] While counsel for the respondent did not dispute the fact that Swietorzecki is dispositive of the issue raised in the Crown’s appeal, he argued that the summary conviction appeal court judge was nonetheless correct in quashing the conviction because there was no evidence that MacPherson was operating, or was in care or control of, her vehicle at the time the demand was made under s. 254(2). More particularly, counsel submitted that the trial judge misapprehended the evidence in finding that the keys were in the ignition at the time the officer approached MacPherson, when the record reveals that officer Cheeseman, in cross-examination, conceded that she did not remember if the keys were in the ignition.

[8] Although the trial judge may have overstated the evidence in finding that the car keys were actually in the ignition, that fact is not determinative of the issue of care or control. It is clear on the evidence that MacPherson was driving her vehicle at the time of the accident and that she was the sole occupant of her vehicle. Therefore, shortly before the police arrived on the scene, MacPherson was not only operating her vehicle, she was the only person who had the care and control of it. Although there was a suggestion in Whitmore’s evidence that some persons at the scene were contemplating moving the vehicle, there was no clear evidence that anything had been done about it other than possibly moving it further onto the shoulder. Whitmore testified that MacPherson got out of her vehicle after the accident, but that she wanted to go back to it to find her glasses. At the time officer Cheeseman approached MacPherson, the vehicle was still on the side of the road and MacPherson was standing no more than two feet behind it. Although uncertain about it, officer Cheeseman believed that the keys were still in the ignition at the time. In my view, it was open to the trial judge, on the basis of this evidence, to conclude that MacPherson “never gave up care and control of her vehicle.” Given this finding of care or control, it is not necessary to determine whether MacPherson was also operating her vehicle within the meaning of s. 254(2) at the time the roadside screening test was administered. The Crown need only prove one of the two factual bases. Therefore, there was no basis to find that the roadside screening demand was invalid.

[9] I would allow the appeal, set aside the acquittal and restore the conviction and sentence.

(signed) “Louise Charron J.A.”

(signed) “I agree: S. Borins J.A.”

(signed) “I agree: Janet Simmons J.A.”

RELEASED: December 19, 2000