Court File and Parties
Court File No.: Brampton 10-17602
Date: March 15, 2012
Ontario Court of Justice
Central West Region
Between:
Her Majesty the Queen
— and —
Mary Grant
Before: Justice Richard H.K. Schwarzl
Oral Reasons for Judgment released on: March 15, 2012
Counsel:
Mr. Craig Power for the Crown
Mr. Ranbir Mann for the Accused
SCHWARZL, J.:
1.0: INTRODUCTION
[1.] Mary Grant is charged with impaired driving and failing to provide a breath sample arising out of an incident in Brampton on December 9, 2010. She has pled not guilty to each of the charges and has alleged a violation of her rights under sections 7 and 8 of the Canadian Charter of Rights and Freedoms.
[2.] At all times I am cognizant of the presumption of Ms. Grant's innocence as well as the unshifting burden upon the Crown to prove her guilt beyond a reasonable doubt. In assessing the evidence I am mindful of the principles set out by the Supreme Court of Canada in numerous precedents including R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 and its progeny. I have also considered all of the authorities counsel referred me to regarding the central issues in this trial.
2.0: ISSUES
2.1: Was the ability of Mary Grant to operate a motor vehicle impaired by the consumption of alcohol?
2.1.1: The Facts
[3.] Mary Grant is an intelligent, articulate individual. She gave her evidence with confidence and certainty. However I did not believe her when it came to the essential and central issues in this case.
[4.] Her testimony that she was restrained and even polite at the scene is utterly contradicted by all of the prosecution witnesses and belies her comportment as seen on the breath room video. In addition, I found her perception and memory to be unreliable. For example, she said that she only drove a few car lengths before he stopped for the police, whereas the officer said the distance was closer to 500 meters. She also testified that she was not given rights to counsel at the scene having first been told about this right back at the station. This contradicts the detailed and thorough evidence of P.C. DiMatteo on this subject. Ms. Grant testified that no one else was present with her and P.C. DiMatteo until well after her arrest, yet both DiMatteo and the other driver involved in the collision both said they were both present before and after her arrest. There are more examples I could cite, but these will suffice to demonstrate that I did not find Ms. Grant to be a trustworthy or reliable witness.
[5.] Ms. Grant would have me believe that she was the victim of unprofessional police conduct, when the truth is that the police acted responsibly and professionally throughout their dealings with her.
[6.] Not only do I disbelieve Ms. Grant on the material issues, but her evidence does not raise a reasonable doubt in my mind. Wherever her evidence conflicts with that of other witnesses, I prefer their evidence over hers. All the other witnesses were internally and externally consistent and their evidence as a whole had the ring of truth about it, whereas Ms. Grant's did not. On the core issues, the prosecution witnesses were both credible and reliable.
[7.] Assessing the evidence that I believe as a whole, I am well satisfied that the Crown has proven beyond a reasonable doubt that Ms. Grant's ability to operate a motor vehicle was impaired by the consumption of alcohol at the time of driving. I find the following material facts.
[8.] At around 12:45 a.m. on December 9, 2010 Ms. Grant was driving in Brampton when she passed a car driven by Mr. Rahul Salwan, sideswiping it. The collision caused $3,000 damage to his car. When both cars stopped, Ms. Grant was loud, rude and aggressive towards Mr. Salwan and a passing pedestrian, Mr. Gurmail Sandhar. Ms. Grant was swaying a little and appeared drunk although Mr. Salwan did not smell any alcohol on her breath as he was not paying attention to that. However, Mr. Sandhar did smell alcohol on her and remarked to Mr. Salwan that she had been drinking.
[9.] After exchanging pertinent information with Mr. Salwan, Ms. Grant drove away instead of waiting for the police notwithstanding her duty to report the collision given the apparent damage. Just before she drove off, a random police cruiser operated by P.C. DiMatteo passed and saw the two cars. When Ms. Grant drove away, P.C. DiMatteo followed her to find out what was going on but had to pursue her with lights and sirens activated for nearly ½ a kilometre before she pulled over. After she stopped, Ms. Grant hopped out of her car and began yelling at the officer aggressively, demanding to know why she had been pulled over. Her tone with P.C. DiMatteo was completely unnecessary and disproportionate to the circumstances. It was, however, consistent with her conduct with Mr. Salwan.
[10.] In addition to her loud voice, P.C. DiMatteo made other observations of Ms. Grant including: stained lips, slightly slurred speech, red and sleepy eyes, flushed face, and the odour of alcohol on her breath. With respect to her breath, P.C. DiMatteo noticed that Ms. Grant turned her head while speaking to him so as to avoid breathing on him. She also admitted to the officer that she had consumed alcohol.
[11.] Based on the totality of his observations, P.C. DiMatteo quite properly formed the opinion that Ms. Grant's ability to operate a motor vehicle was impaired by the consumption of alcohol and he arrested her for that offence. Ms. Grant continued to be abrasive by being resistive and foul-mouthed. She even threatened to sue the officer. It took some time and the presence of a second officer for Ms. Grant to cool down. While being given her rights to counsel, she continued to be aggressive and insisted on being driven home. She repeated the order to be taken home when she was given the breath demand.
[12.] P.C. DiMatteo searched Ms. Grant's car. On the front seat he found a bag containing a sealed bottle of red wine and an LCBO receipt dated December 8, 2010 at 6:30 p.m. for over $125 worth of alcohol, including the bottle found on her seat.
[13.] Upon being taken to the station and booked, Ms. Grant spoke to duty counsel in private. After speaking with counsel, she was allowed to use the bathroom. When she exited the bathroom, Ms. Grant flicked water into the faces of P.C. DiMatteo and the qualified technician, P.C. Okposio, while complaining they did not have any towels. She was then escorted into the breath room, nearly 1.5 hours after the collision with Mr. Salwan's car.
[14.] All of her behaviour and words inside the breath room were captured on DVD, which was made an exhibit. It can be clearly seen that Ms. Grant was curt and perfunctory with the officers. She was clearly most displeased with the situation and was determined to say as little as possible. When she did speak, her thoughts and voice were both generally, though not always, clear. She did not appear to display any obvious difficulties with coordination in the breath room. P.C. Okposio observed that Ms. Grant had the odour of alcohol on her breath, her eyes were red rimmed, bloodshot and watery, her lips were purple and she had a negative attitude. In P.C. Okposio's assessment, with which I agree, Ms. Grant's voice was very low and occasionally slurred.
[15.] It is obvious to me from all the evidence that at the time of the collision the effects of alcohol were greater than in the breath room, where she was not as obnoxious and not as intoxicated.
2.1.2: Applicable Legal Principles and Analysis
[16.] It is impairment of the ability to operate a motor vehicle which must be proven, and not just "impairment" generally: R. v. Andrews (1996), 1996 ABCA 23, 104 C.C.C. (3d) 392 (Alta. C.A.), leave to appeal refused 106 C.C.C. (3d) vi (S.C.C.). However, any degree of impairment ranging from slight to great, establishes the offence: R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont. C.A.) at p. 384; aff'd R. v. Stellato (1994), 90 C.C.C. (3d) 160 (S.C.C.). Slight impairment to drive relates to a reduced ability, in some measure, to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, regard for the rules of the road, and the like: R. v. Censoni, [2001] O.J. No 5189 at ¶ 47 (Sup. Ct.)
[17.] In coming to the conclusion that Ms. Grant's ability to operate a motor vehicle was impaired by alcohol, I take into account all of the evidence, without isolating any given moment or period of time or any single piece of evidence. Evidence of bad driving alone cannot prove impairment. Here, the proof of impairment is based upon all of the following:
(i.) The unexplained collision;
(ii.) Her loud rude and aggressive behaviour and swaying right after the collision;
(iii.) Her failure to pull over immediately when pursued by the police;
(iv.) Her purple lips that appeared to be wine stains;
(v.) Her red, sleepy eyes;
(vi.) Her avoiding breathing in P.C. DiMatteo's direction with talking to him;
(vii.) Her slightly slurred speech at the scene;
(viii.) Her flushed face;
(ix.) Her demands to be taken home and aggressive behaviour with P.C. DiMatteo;
(x.) Her continued aggressive behaviour at the police station; and
(xi.) The continuation of red eyes and strong odour of alcohol on her breath at the station.
[18.] I find Ms. Grant's ability to operate a motor vehicle was impaired by the consumption of alcohol when she was driving and encountered Mr. Salwan and Mr. Sandhar and P.C. DiMatteo shortly thereafter.
2.2: Did Ms. Grant Fail or Refuse to provide a Breath Sample?
2.2.1: The Facts
[19.] P.C. Okposio made a lawful and proper breath demand that Ms. Grant provide suitable samples of her breath into the Intoxilyzer 8000C approved instrument. The officer gave Ms. Grant a considerable number of opportunities to comply with his demand. She never did provide a suitable breath sample.
[20.] Prior to the first opportunity, Ms. Grant understood P.C. Okposio's clear and certain explanation of the meaning and consequences of failing or refusing to provide suitable samples. She also understood the officer's plain instructions on how to provide a suitable sample which included a direction that she blow steadily until told to stop by the officer. Ms. Grant blew for a second or two then stopped without being told to do so. She repeated this twice more. When told that she was not blowing, she protested that she was when clearly she wasn't.
[21.] After P.C. Okposio warned her again about the consequences of failing or refusing to provide suitable samples, Ms. Grant was given further opportunities. Each time, she would blow for a second or two and stop without the officer's direction. After four more incomplete tests, the officer instructed Ms. Grant once again that to provide a suitable sample she must blow steadily for 10 to 15 seconds and not to stop until he told her she could. She then failed to provide suitable samples on three more occasions, each time stopping on her own volition after only a couple of seconds.
[22.] Ms. Grant asked for water, but was refused. As P.C. Okposio explained, cold water in the mouth can adversely affect the accuracy of breath samples. She then failed to provide suitable samples on seven more opportunities, each lasting only a second or two. After being coached again on how to correctly provide breath samples, Ms. Grant blew four more times at approximately two seconds each, then blew twice more, first for three then for four seconds respectively. However, none of these samples was suitable and she always stopped before being told to.
[23.] Ms. Grant was then given five more opportunities, but no blow was greater than two or so seconds before she quit. When P.C. Okposio asked what part of his instructions she did not understand, Ms. Grant insisted that she was doing her best. The officer then gave her instructions for a third time, reminding her to blow for at least ten seconds without stopping, to which she simply said, "I have done all that. I have blown and blown. I continue to blow until I have no breath." Ms. Grant then demanded water again. This time, P.C. Okposio relented in hopes that she would now provide a suitable sample.
[24.] After waiting a few moments, P.C. Okposio gave instructions to Ms. Grant a fourth time. He could not have been clearer in those instructions. He told Ms. Grant, "Take a deep breath. Make a tight seal. Blow to activate the tone. Keep blowing with constant pressure until I tell you to stop. If the tone stops, take another deep breath and try again." Ms. Grant replied by stating, "I understand what you're saying. That's what I have been doing." With respect, had Ms. Grant done what she was told, the officer would not have had to give instructions four times and warned her a second time about the consequences of failing to give a suitable sample.
[25.] P.C. Okposio, who was extremely patient yet obviously frustrated by Ms. Grant, gave her further opportunities to provide suitable samples. At 3:04 a.m. and after six more inadequate samples of very short duration, the officer pulled the mouthpiece away from Ms. Grant and told her she was being charged with failing to provide a suitable breath sample. Ms. Grant asked to blow again, but P.C. Okposio, after many, many chances and repeated instructions and warnings given to Ms. Grant refused to give her one more try. He explained in court that he did not give her another opportunity after she asked because he had already given her ample chances but she never did anything different. In other words, he had no reason to believe that she would ever provide a suitable sample. The officer agreed that he never warned Ms. Grant that she would be given one last chance before he terminated the procedure.
[26.] P.C. Okposio testified that he thought Ms. Grant was faking for four basic reasons: (i) he saw no cheek movement when she said she was blowing; (ii) she did not activate the instrument's tone for long enough; (iii) she would arbitrarily terminate her blows without his direction; and (iv) she did not take a deep breath despite being told to do so. He also added that Ms. Grant simply did not follow his instructions over a reasonable period of time. I also take into account the additional evidence:
[27.] The approved instrument was operating and operated properly. Nothing the police did prevented or obstructed Ms. Grant's ability or opportunity to provide a suitable sample. To the contrary, P.C. Okposio was singularly patient and helpful despite his obvious frustration with her. There was no medical or physical condition that would prevent Ms. Grant from providing a proper sample. At no time did Ms. Grant appear to fail to comprehend what was expected or how to perform the task at hand. She was not intoxicated to the point where she was unable to comprehend what was happening or to comply with the breath demand. Prior to commencing the testing, and once during it, Ms. Grant was warned about the consequences of failing or refusing to provide a suitable sample.
2.2.2: Applicable Legal Principles and Analysis
[28.] The law does not require (a) that the police warn the subject that a given opportunity to provide a suitable sample will be the final one nor (b) that the police must give the subject another chance when he or she asks for one. The circumstances of each case must be assessed on their own merits: R. v. Domik, [1979] O.J. No. 1050 (H.C.J.) aff'd [1980] O.J. No. 642 (C.A.)
[29.] In the circumstances before me, the police acted reasonably and fairly in attempting to obtain proper samples. P.C. Okposio was amply justified in refusing Ms. Grant's request for one more chance because she had not done or said anything that would have given any reasonable qualified technician, including P.C. Okposio, confidence that she would finally do what she should, and could, have done much earlier.
[30.] In R. v. Howland, [2004] O.J. No. 268 (S.C.J.), it was accepted that the lack of a final warning could be a determining factor in deciding whether the accused person had the requisite mens rea to refuse. Here however, I find that the lack of a final warning does not assist the Accused. After Howland was decided, the Supreme Court of Canada decided the case of R. v. Woods (2005), 2005 SCC 42, 197 C.C.C. (3d) 353. Although it was an approved screening device refusal case, the principles set out in that case apply equally to this one because the court held that: "Drivers upon whom ...demands are made are bound to comply immediately – and not later, at a time of their choosing, when they have decided to stop refusing!"
[31.] In the totality of the circumstances in this case, Ms. Grant had not provided a suitable sample despite putting her lips to the mouthpiece more than thirty times. At no time did she come anywhere close to providing a suitable sample. The offence was complete well before P.C. Okposio terminated the tests without a final warning.
[32.] It is clear from the innumerable offers by P.C. Okposio to provide suitable samples, the repeated warnings of the consequences of failing to provide such samples, and the repeated simple instructions of the officer, that Ms. Grant could not honestly or reasonably believed that the situation was open ended and would have gone on indefinitely.
[33.] In all of these circumstances the failure to warn her that she would be given one more chance, does not raise a reasonable doubt in my mind regarding the mens rea of Ms. Grant. It was not up to Ms. Grant to decide when to comply. No warning was necessary or warranted in this case to nudge her into compliance. Had such a warning been given I have no reason to believe that she would have then provided suitable samples.
[34.] On video, Ms. Grant declared throughout the procedure that she was trying her best. She repeated this claim in her testimony. I do not believe her. On the totality of the evidence, I find that Ms. Grant's verbal protestations of compliance were loudly and completely contradicted by her actions. It is clear to me that she was faking and she knew she was. She never blew for more than a few seconds and never blew until told to stop by the officer. She always stopped prematurely and on her own initiative. She simply chose not to follow P.C. Okposio's direct and simple instructions. I find that her request or requests for more chances were not genuine, but were merely an illegitimate gimmick to buy time or sympathy.
[35.] On the totality of the evidence, I find that the crown has proven beyond a reasonable doubt that Mary Grant willfully failed to provide suitable samples of her breath into the approved instrument.
2.3: Was Ms. Grant's right under s. 8 of the Charter violated?
[36.] I find that there was no unlawful search or seizure in this case. The police acted properly in accordance with the statutory scheme set out in section 254 of the Criminal Code. Given the time of day, the apparent abrupt departure by Ms. Grant from the scene of a collision, her obnoxious and aggressive demeanour, her purple lips, the smell of alcohol on her breath, her apparent attempt to avoid breathing directly at the officer, and her red, sleepy eyes P.C. DiMatteo was amply justified in reasonably believing that Ms. Grant's ability to operate a motor vehicle was impaired by the consumption of alcohol. These grounds were communicated to P.C. Okposio, who relied on them as well as his own observations of Ms. Grant.
[37.] There are no special words that need be incanted by the officer in expressing his R&PG. Here, P.C. DiMatteo said he concluded Ms. Grant was driving under the influence of alcohol as opposed to driving while impaired by alcohol in her blood. Looking at all of the evidence, it is clear that the officer's demand was justified in law: R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 (C.A.)
[38.] I find that the breath demands were lawfully made in conformity with the requirements of section 254 of the Criminal Code. Accordingly, there is no violation of her section 8 Charter rights.
2.4: Was Ms. Grant's right under s.7 of the Charter violated?
[39.] It was argued that because the qualified technician did allow Ms. Grant to watch the approved instrument's screen to watch the blood alcohol concentration calculations, her right under s.7 was violated. She relies on R. v. Partington, (1991), 37 MVR (2d) 51 (B.C. S.C). That case was an over 80 case and distinguishable on the facts. Even if its principles apply, there is no evidence that Ms. Grant's decision to never provide a suitable sample was in any way influenced by the officer's decision to shield the approved instrument's screen from her.
[40.] If I am wrong, and her right was breached, I would not exclude the evidence of her failure to comply with the breath demand as the breach was very minor and not serious, her trial-protected interests were not impacted, and exclusion would bring the administration of justice into disrepute. Additionally, a stay of proceedings would be disproportionate in the circumstances of this case. Had I found a breach of section 7, I might have considered some form of relief at the time of sentencing.
3.0: CONCLUSIONS
[41.] For the foregoing reasons, my verdicts are as follows:
Count #1 – impaired driving – GUILTY
Count #2 – fail or refuse to provide suitable breath sample – GUILTY
ORIGINAL SIGNED BY
JUSTICE R.H.K. SCHWARZL
Richard H.K. Schwarzl,
Justice of the Ontario Court of Justice