Court File and Parties

Court File No.: 112156

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Johanne Pelletier

Before: Justice Peter T. Bishop

Heard on: June 14, 2011, December 6, 2011, and January 31, 2012

Reasons for Judgment released: 26 March 2012

Counsel:

Peter Keen, for the Crown

Irwin Isenstein, for the accused Johanne Pelletier

BISHOP J.:

Charges

[1] Johanne Pelletier has been charged that on or about the 17th day of January, 2011 at the Municipality of Sioux Lookout, in the said region, did while her ability to operate a motor vehicle was impaired by alcohol, did operate a motor vehicle contrary to Section 253(1)(a) of the Criminal Code.

And further, has been charged that on or about the 17th day of January, 2011 at the Municipality of Sioux Lookout, in the said region, having consumed alcohol in such a quantity that the concentration thereof in her blood exceed 80 mgs. of alcohol in 100 millilitres of blood, did operate a motor vehicle contrary to Section 253(1)(b) of the Criminal Code.

Evidence of Constable Ben Bye

[2] Cst. Bye is an Ontario Provincial Police officer stationed in Sioux Lookout. On January 17, 2011 he was working the day shift, 7:00 a.m. to 7:00 p.m. He received information of a possible impaired driver in the bypass area of the Municipality of Sioux Lookout with a description of the car.

[3] He observed the motor vehicle with that description driving south bound on Highway 72 in the area of Frog Rapids Bridge and proceeded to activate his lights to initiate a stop.

[4] The vehicle did not come to a stop and he also activated the siren. Eventually the vehicle pulled over in a parking lot of Fred & Dee's Store now known as "Five Mile Corner". He followed the vehicle with his lights and siren for approximately three kilometres.

[5] The driver, identified as the accused, exited the vehicle, proceeded to walk around in front of the vehicle to the passenger side and adjusted her windshield wiper. She was not looking at the police vehicles as another police officer had also stopped. She did not make eye-contact and did not listen to the request to get back in the vehicle. She then went to adjust the wipers on the driver's side.

[6] She looked up at the officer who had exited his vehicle and walked to the driver's side and opened the rear driver's side door to the vehicle. The officer asked her to "please get back in the vehicle". She looked up with a shocked look, raised her eyebrows and went to the front of the vehicle.

[7] She then opened the driver's door and sat in the driver's seat of the vehicle again and then shut the door.

[8] The officer asked for her driver's licence, ownership and insurance. She proceeded to open her wallet and turned over an Ontario Health card. The officer could clearly see her driver's licence in her wallet. The officer again asked for her driver's licence and she produced her Pleasure Craft Operator's card.

[9] On the third request for her licence, the passenger in the vehicle leaned over and pointed to the driver's licence that was in her wallet. At that time the officer could smell alcohol emitting from the vehicle and he believed that it was coming from the accused.

[10] The accused exited the vehicle and the officer could smell a strong order of alcohol coming directly from her breath. Her eyes were red, glossy and watery. She avoided eye-contact.

[11] While standing there, the accused exhibited a one and one-half inch circular sway. The ground was flat on the parking lot and she was wearing a running style shoe.

[12] The officer formed the opinion that the accused's ability to operate a motor vehicle was impaired by alcohol.

[13] He read the accused her rights to counsel from the OPP card including the toll free 1-800-265-0451 number.

[14] She understood and indicated that she did not wish to call a lawyer. The caution was also read from the OPP issued card.

[15] Constable Lowrey, another police officer, was in attendance, then left the scene as he was the breathalyser technician to prepare the Intoxilyzer 8000-C at the detachment.

[16] The accused was arrested at 5:47 p.m.

[17] The breath sample demand was read to her at 5:52 p.m., which she understood.

[18] The vehicle was seized pursuant to the Seven Day Vehicle Impoundment Program.

[19] The accused was taken back to the lodging area of the detachment wherein she had difficulty removing her wrist watch and was unable to undo the clasp on the band. She also had trouble removing her ankle bracelets.

[20] The accused was lodged in the cells then taken out of the cells to the breathalyser technician and re-lodged back in the cells once the breath samples had been taken.

[21] The officer did not notice anything improper when she exited the vehicle. The temperature was -15.6 degrees Celsius. The accused had no problems walking and did not stumble getting into her vehicle.

[22] When standing by the side of her car, this officer observed that the sway was not a shiver or an involuntary attempt to warm up.

[23] At the side of the road, this officer did advise the accused that she had the right to speak to a free Duty Counsel lawyer. Cst. Bye had no difficulty communicating with the accused in English.

[24] Cst. Bye did not release the accused, but left it to the officer on the next shift as it took one and one-quarter hour to complete the paperwork from Cst. Lowrey.

[25] Cst. Bye indicated that all persons in custody are put in a cell for their own safety, the safety of the officers and other individuals who are in the police station including other accused or staff.

[26] The accused was very co-operative. She was put back into the cells after the breath test at approximately 7:02 p.m. to allow Cst. Lowrey and himself to finish the required documentation.

[27] It was Cst. Bye's evidence that individuals in custody sometimes are violent and uncooperative and that is a regular occurrence several times a day at this detachment.

Evidence of Constable Tyler Lowrey

[28] Cst. Lowrey is employed by the Ontario Provincial Police and is a qualified breath technician to operate the Intoxilyzer 8000-C.

[29] He was driving on Highway 72 proceeding north bound and met the accused's vehicle and Cst. Bye's vehicle pursuing the accused travelling south bound. Cst. Lowrey did not hear the siren but Cst. Bye's flashing lights were engaged. It was obvious to him that the vehicle was not stopping and he turned around and followed the accused's vehicle for approximately one and one-half kilometres.

[30] Once the vehicle was stopped at Five Mile Corner, he observed the accused exit the vehicle and was totally oblivious to the police. She went to the driver's side windshield wipers and smacked them on the windshield. She then proceeded to go behind the vehicle and saw Cst. Bye, at which point she stopped, turned around and then proceeded to the front of the vehicle at the passenger side window where she proceeded to slap the passenger side windshield wipers on the windshield.

[31] Cst. Lowrey approached the passenger who identified herself as Beverly Carson. The front windshield of the accused's car was clear enough to see quite well out of but the rear windshield had some snow built up on the bottom side. The music was playing quite loudly.

[32] He also observed the accused looking for her driver's licence and firstly produced a health card and then a Pleasure Craft Operating card. The passenger pointed out to the accused her driver's licence.

[33] The passenger didn't observe anything unusual about the driver nor detect any odour of alcohol on her breath.

[34] When the accused exited the vehicle she was very purposeful in her movements, nothing seemed natural; it was almost robotic.

[35] He observed Ms. Pelletier's speech to be slightly slurred and did have a French accent. He also detected a strong odour of alcohol coming from her breath. She stated that she had one drink.

[36] Cst. Lowrey arrived back at the detachment, warmed up the Intoxilyzer 8000-C, ran the appropriate tests and determined that it was working properly. He received the accused at 18:28 and re-read the breath sample demand and confirmed that she did not want a lawyer.

[37] At 18:37 the first sample was taken which was analysed at 129 mgs. of alcohol in 100 millilitres of blood.

[38] The second sample was taken at 18:58 and was analysed to be 125 mgs. of alcohol in 100 millilitres of blood.

[39] At the detachment, Ms. Pelletier was confused about what day it was. First she said it was Friday, then said it was Wednesday when the actual day was Monday. Cst. Lowrey advised the accused that she would be charged with both Impaired Driving and Driving with Over 80 mgs. of Alcohol in Her Blood.

[40] Cst. Lowrey reiterated that individuals in custody are not left in the waiting area or the lodging area as there are cabinets, property and weapons readily available and that for the safety of all users of the detachment prisoners are kept in the cells.

[41] Cst. Lowrey did not re-read the accused her rights to counsel but asked her "do you realize you can call a lawyer?" to which she replied "no". He did not re-advise her of her rights to a lawyer because the investigating lawyer had already done that.

[42] The accused spoke English. The accused clearly understood what was expected of her in the breathalyser room. The court also viewed the DVD and finds as a fact that the accused understood English.

[43] The officer stated that the radio frequency interference detector was not activated and that this particular instrument is unaffected by radio frequency interference and does not affect the process of taking and analyzing breath samples.

Evidence of Constable Luke Robillard

[44] Cst. Robillard began working at the Sioux Lookout OPP detachment in September of 2010. He made some observations of the accused's physical condition upon being discharged from the detachment. His observations carry little weight as his notes were made well after the event and being appraised that the matter was going to trial.

[45] He was instructed by Cst. Bye to release the accused and before that could happen, he was dispatched to 911 call. He then forgot about Ms. Pelletier and began radar patrol in Sioux Lookout or in his words "it simply slipped my mind as I was out driving around in my cruiser". In effect she was left in the cells for three and one half hours.

Evidence of Beverly Gail Carson

[46] Ms. Carson was the passenger in Ms. Pelletier's motor vehicle. Ms. Pelletier picked her up to go to the bingo and it was snowing and windy that night.

[47] She didn't smell any alcohol on the accused breath. Ms. Pelletier was playing the Sirius radio country channel loudly. In her opinion Ms. Pelletier was sober. She also did not see the flashing lights of the police cruiser nor hear any sirens.

[48] When stopping at Five Mile Corner, the accused simply said "I just got pulled over".

[49] She indicated that in her job many people get mixed-up between their Health Card and their driver's licence. From her perspective the accused had no difficulty driving although she did ask the accused once when the wind was blowing "can you see?" and the response was that she had no problem seeing.

[50] In cross-examination she admitted that she had a horrible sense of smell because she was a smoker.

Evidence of Johanne Pelletier

[51] Madam Pelletier is fifty two years of age. At 4:45 p.m. on January 17, 2011 her friend Bev Carson telephoned to see if they were going to bingo. She had drank three Smirnoff Vodka coolers but stopped drinking around 3:00 p.m.

[52] The windshield was clouding over from the forced air from the heater and there was snow on the back window which she had neglected to clear off.

[53] She did not know that the police were following her with their lights and sirens going for three kilometres and stated that she has a hearing problem as her ears are plugged. She did not see the flashing lights because she was talking to her friend Bev and she did not look in her rear-view mirror.

[54] She thought she was being arrested because her windows were dirty so she immediately got out and started to clean them with her hands. She opened her rear driver's door to get a brush to clean off the windows because it was too cold on her hands. She was nervous. The officer said that she had a smell of alcohol and she agreed. She stated that Five Mile Corner was a big yard and it was safer to stop there.

[55] Her eyes were red as she has a medical condition with dryness. Smoking also makes her eyes itchy and she was smoking, as was her friend in the car.

[56] She stated that she is always mixed up with her cards and is naturally nervous by nature.

[57] She stated that she was swaying because it was cold and was shifting from side to side to keep warm.

[58] With respect to her slurred speech, she spoke English to the officer and there are many English words that she does not understand.

[59] She stated that the officer did not mention any lawyer but did remember telling her the she could call Duty Counsel and she was told the 1-800 number but in her past experience she always had to pay. Cst. Bye advised that she could speak to a free lawyer and she understood that but also stated that she thought she would get a bill later.

[60] Cst. Lowrey also spoke about a lawyer and told her that she had a right to a free lawyer, but every time she got a lawyer she had to pay. She did not ask Cst. Lowrey to clarify and she was nervous.

[61] She always has trouble with her wrist watch and her bracelets as the clasps are small.

[62] She was in the cells for five or six hours. She felt lonely, abandoned and not able to call anyone. She was not able to call her husband as the female guard needed to talk to an officer.

[63] The temperature in the cells was very cold and her socks had been removed and the bed was made out of cement. She was not given a blanket as they told her that she was going to be released soon.

[64] She lied to Cst. Lowrey about the number of drinks as she wanted to put herself in a better light. She stated that the police are always right and she would agree to answers to questions to please them.

[65] She was not given a choice of providing her fingerprints and photograph at a later date but was told that she had to do it then.

[66] It was cold when she left the police station and she walked three or four blocks and stopped by a light post and her husband saw her and picked her up. She did not have any gloves or mitts and continued to be emotional at the time.

[67] In cross-examination she stated that the police made her nervous but did admit that she worked at several employers being Johnny's Fresh Market for approximately one year, the Meno-Ya-Win Health Centre for approximately three years and the Journey's End for approximately two years. The language at the work places was English and she estimated that eighty or ninety percent of the time she was speaking English.

[68] She agreed that she had no difficulty speaking English and she understood English and there was no problem in speaking English to the police.

[69] She agreed with the police officer that she smelled of alcohol when she was at the police station but does not know why she smelled of alcohol. She told the police officer that she had only consumed one drink and was trying to minimize her alcohol consumption with a view to mislead the police.

[70] She stated that sometimes she gets mixed up with her dates when she is working and she had a confused day and week. She also stated that she did not check the mirrors or properly clean off the car before she began driving.

[71] She states that she was nervous when confronted by the police which explains her behaviour when she was stopped. She stated that she was good enough to drive and from her point of view she didn't have any alcohol in her body. She kept repeating that she was nervous and she didn't know what she drank.

[72] She reiterated that she had no trouble communicating in English and two times the police officer told her she could have a free lawyer but she thought she would still have to pay. She was adamant that she was not affected by the consumption of alcohol. She was still nervous.

[73] She demonstrated to the court how she was moving her feet at the side of the road to keep warm which resulted in lifting the feet alternately, one or two inches off the ground in slow motion. She really wasn't moving very fast and it did not produce a swaying motion.

[74] She agreed with the officer that she should not have been driving but just said that to please the officers.

Evidence of Michelle Methot

[75] Michelle Methot is the husband of the accused.

[76] He picked her up after 1:00 a.m. on Fifth Avenue in Sioux Lookout. She was fine to walk and she was nervous. When she gets nervous she doesn't sleep and forgets days.

[77] She has great trouble removing her jewellery and watch and eyes are red because of a dryness condition.

[78] In cross-examination he indicated that when his wife is nervous her whole arms vibrate or shake.

Decision

[79] Having heard all of the evidence, I am satisfied that the Crown has proven both charges beyond a reasonable doubt. Cst. Bye had reasonable and probable grounds to stop Ms. Pelletier due to the information that he had about a possible impaired driver and the fact that he followed the accused's car matching the description for approximately three kilometres with the siren engaged and the lights flashing. Ms. Pelletier's behaviour at the stop can only be described as bizarre and oblivious to the true situation around her. She admitted the windshield was fogged but she could still see out.

Indicia of Impairment

i) There was alcohol in her system which could be smelled on her breath;

ii) She drove with the windshield fogged without properly clearing it and the back windshield was partially snow covered;

iii) She did not check the rear-view mirrors and was busy talking to her friend;

iv) She swerved in Sioux Lookout and came too close to a curb in an attempt to avoid a frost heave;

v) The accused was confused with respect to why she was stopped;

vi) The accused was mixed up as to which day it actually was;

vii) She believed she was stopped because her windows were not clear and she got out and started slapping the wipers against the windshield, then cleaning the back window with her bare hand;

viii) She ignored the directions of the police officer;

ix) Her eyes were glossy, red and watery and her breath smelled of alcohol;

x) She had an inability to promptly produce her driver's licence and produced two other cards and then, with the assistance of her passenger, produced her driver's licence;

xi) On exiting the vehicle she had very purposeful movements which were not natural and described as "robotic";

xii) She was swaying from side to side.

[80] I do not accept her explanations with respect to all of these indicia of impairment as they are extremely self-serving, and do not create a reasonable doubt.

[81] With respect to the Drive Over 80 mgs. charge, I am finding that charge has also been proven beyond a reasonable doubt. As stated, Cst. Bye had reasonable and probable grounds to stop the vehicle and make the breath demand. The breath samples were taken as soon as practical. The instrument was working properly and I find that the issue at trial with respect to radio frequency interference is not a live issue and simply raised by the Defence to cloud matters as the evidence was that this particular instrument was not affected by radio frequency interference.

[82] I also reject Ms. Pelletier's argument that she didn't properly understand or wasn't give her rights to counsel in her first language which is French. She admitted in cross-examination that both officers told her that she had a right to a free Duty Counsel and not withstanding this, she somehow thought that she would still be charged a fee. This evidence is not accepted nor is her evidence that she was nervous to explain her apparent behaviour. Every time the Crown attempted to get an admission she would reply with "Well, I was nervous". This was repeated approximately six times to her own counsel and nine times in cross-examination. That seemed to be a stock response both to her lawyer and the Crown Attorney to explain the inexplicable. Throughout the trial, the accused had a French translator but on more than one occasion replied in English. She admitted that the language of the work place at her last three places of employment was English and she had no difficulty functioning in that language. She denied that there was alcohol in her system and believed that she was fit to drive. These statements are not realistic nor do they bear any weight as I find the accused was and continues to be in denial with respect to her alcohol consumption and driving on January 17, 2011.

[83] I am also finding that there was no arbitrary detention by Cst. Luke Robillard. It was a mistake made by him as an inexperienced officer and he owes an apology but his negligence does not result in a charter breach nor any charter relief.

[84] I have reviewed Justice Fraser's decision in R v Bouchard, Kenora file 110260 released November 24, 2011 under appeal. The facts in Bouchard are markedly different than the case at bar. Here, the police officers gave very cogent, practical reasons why arrested individuals are in custody at the detachment and put into cells and the court accepts those reasons. It was not an arbitrary or blanket policy on behalf of the officers but was fact specific. As well, the case of R v Amber Michelle Roy [2008] O.J. and O.3517 is distinguished on the facts that the ratio in that case being that the breath samples were not taken as soon as practicable. I have also considered R v Iseler which was an alleged charter breach on arbitrary detention but that breach had nothing to do with the investigation and gathering of evidence and did not impact the fairness of the trial. Here there is no charter breach.

[85] For all of those reasons, a conviction will enter on the Drive Over 80 mgs. and a conditional stay will register with respect to the Impaired Driving charge.

Released: 26 March 2012

Signed: Justice Peter T. Bishop