Court File and Parties

Court File No.: Brampton 09-7705 Date: May 15, 2012 Ontario Court of Justice Central West Region

Between: Her Majesty the Queen — and — Raymond Stewart

Before: Justice Richard H.K. Schwarzl

Heard: April 15 and July 4, 2011; April 12, 2012

Reasons for Judgment released: May 15, 2012

Counsel:

• Ms. Tina Kim for the Crown
• Mr. Samboun Tsai for the Accused

SCHWARZL, J.:

1.0: INTRODUCTION

[1] In the late evening of June 28, 2009 Raymond Stewart was driving in north Brampton. He was stopped by the police and charged with impaired driving, driving with excess alcohol and possession of marijuana. A trial was held on all three counts. At the end of the examination in chief of the first prosecution witness, the marijuana charge was dismissed on consent. The prosecution continued, however, with the two driving charges.

[2] The matter proceeded in a blended trial and Charter voir dire regarding the prosecution evidence from the two police witnesses. Mr. Stewart testified on the Charter voir dire only. Both parties agreed that if Mr. Stewart's Charter application was dismissed, then no defence would be called and that findings of guilt on both counts could be registered.

2.0: ISSUES

[3] The central issue in this case is whether the arresting officer, P.C. George Wang, had reasonable grounds to believe that Mr. Stewart was operating a motor vehicle while his ability to do so was impaired by the consumption of alcohol in order to make a breath demand under section 254(3) of the Criminal Code.

2.1: Position of the Defence

[4] The defence argues that if the officer did not have reasonable and probable grounds, then the breath demand and the evidence derived therefrom was acquired in violation Mr. Stewart's right to be free from unreasonable searches and seizures and ought to be excluded from the trial evidence.

[5] The defence submits that P.C. Wang was not a credible witness, arguing that his investigation was exaggerated and careless in that it is said that he inflated certain observations, rushed his investigation and jumped to conclusions without reasonably considering alternative explanations for his observations. The defence argues that at its highest, P.C. Wang's evidence discloses a reasonable suspicion to make a screening demand, but falls short of being reasonable and probable grounds to believe Mr. Stewart was too impaired by alcohol to drive safely. The defence further submits that Mr. Stewart was a credible and reliable witness and that his evidence further undermines what is described as unreliable police testimony.

2.2: Position of the Crown

[6] The Crown submits that P.C. Wang was a credible and reliable witness whereas Mr. Stewart was not. The Crown submits that based solely on Mr. Stewart's own evidence that the officer would have reasonable and probable grounds to believe that Mr. Stewart was impaired so as to justify a breath demand.

3.0: SUMMARY OF EVIDENCE

3.1: Prosecution Evidence

3.1.1: P.C. George Wang

[7] On June 29, 2009 P.C. George Wang was on general patrol in the north end of Brampton. Around 11:44 p.m. he noticed a car make a safe u-turn. He did not think the maneuver was in any way was problematic, but it did draw his attention to the car which he followed for a couple of minutes before pulling it over.

[8] P.C. Wang gave the following evidence of driving after the u-turn:

• The car was driving 40 km/h in a posted 70 km/h zone;
• The car weaved within its lane at least three or four times over a distance of 400 or more metres;
• The car signalled and made an abrupt lane change that interfered with another car which had to quickly apply its brakes; and
• The car took a couple of hundred metres to pull over once the officer activated his emergency equipment.

[9] At about 11:46 p.m. P.C. Wang approached the open driver's side window of the car which was operated by Mr. Stewart, who was the lone occupant. The officer gave evidence of signs of intoxication of Mr. Stewart by alcohol as follows:

• There was an odour of alcohol on his breath;
• He admitted to consuming alcohol;
• His eyes were very watery and red rimmed;
• His speech was slow and methodical; and
• When Mr. Stewart got out of his car, his movements were unsteady and he swayed.

[10] P.C. Wang agreed in cross-examination that in his notes regarding the abrupt lane change, the officer did not write that the other car applied its brakes. The officer also agreed that Mr. Stewart did not have any coordination problems producing his driver's licence and other documentation. Furthermore, the officer acknowledged that in his notes he made several errors, including:

• Checking off a box that Mr. Stewart's level of intoxication was extreme, when, in hindsight, he should have ticked off the box noting intoxication as obvious; and
• Writing down the wrong street name for the first intersection at which he encountered Mr. Stewart.

[11] P.C. Wong testified that at 11:51 p.m. and after considering all the circumstances of the driving and the officer's observations of the driver, he had reasonable grounds to believe that the ability of Mr. Stewart to operate a motor vehicle was impaired by the consumption of alcohol. P.C. Wong then arrested Mr. Stewart for impaired driving.

[12] At 11:55 p.m. P.C. Wong made a breath demand pursuant to section 254(3) of the Criminal Code. He then transported Mr. Stewart to a police station for the purpose of taking and analyzing samples of Mr. Stewart's breath by a qualified technician using an approved instrument. At the station, P.C. Wong observed that Mr. Stewart's eyes were still watery and red, he still smelled of alcohol, and he was still unsteady and swaying in his movements.

3.1.2: P.C. Kevin Faulkner

[13] P.C. Kevin Faulkner is a qualified technician with experience in conducting breath tests on approximately two hundred people.

[14] At 12:46 a.m. on June 29, 2009 P.C. Faulkner received Mr. Stewart into his custody from P.C. Wang for the purpose of conducting breath tests using an approved instrument found to be in proper working order. All of P.C. Faulkner's dealings with Mr. Stewart were recorded on a DVD, which was made an exhibit.

[15] P.C. Faulkner took and analyzed two suitable samples of Mr. Stewart's breath which were provided directly into the approved instrument. The first sample was taken and analyzed at 12:55 a.m. with a blood alcohol concentration result of 126 milligrams of alcohol per one hundred millilitres of blood. The second sample was taken and analyzed at 1:21 a.m. with a blood alcohol concentration result of 113 milligrams of alcohol per one hundred millilitres of blood.

[16] P.C. Faulkner made observations of Mr. Stewart's physical condition including:

• The strong odour of alcohol on his breath;
• His eyes were watery and red;
• His speech was slurred;
• He swayed while he stood; and
• He displayed poor attention by not following instructions or having difficulty in doing so.

[17] P.C. Faulkner testified that the effects of alcohol on Mr. Stewart were obvious. The officer agreed that other than swaying, Mr. Stewart's balance was steady and he was generally cooperative.

3.2: Defence Evidence

[18] Mr. Stewart testified that he had slept very little the night before this incident because he had been out until 6:00 a.m. playing dominoes. On the alleged offence date he helped a friend with a chore in the afternoon and then went to another friend's house in north Brampton around 5:00 p.m. to play dominoes and poker for the evening. Sometime after 10:00 p.m. his host free-poured two mixed drinks of cognac and coca-cola for Mr. Stewart, both of which he consumed sometime before leaving for home around 11:30. Mr. Stewart testified that he felt no effects whatsoever of alcohol when he drove, but that he was tired from his lack of sleep.

[19] After leaving his friend's house, Mr. Stewart made a u-turn in order to more easily head in the direction of his home. He said he was driving cautiously because he saw a police car behind him and thought that he was going to be pulled over.

[20] Mr. Stewart described his driving as "O.K." He denied weaving. He disagreed that his lane change was unsafe or that he interfered with any other traffic. He testified that he pulled over very shortly after seeing the police lights. He told the officer that he had a couple of drinks at a friend's house.

[21] Mr. Stewart testified that his eyes are usually red and watery. He further testified that his speech can often be hard to understand, even for his own family. I observed Mr. Stewart over parts of three days during the trial and found that his eyes were always red and watery and that his speech was often thick and not readily comprehensible.

[22] Mr. Stewart said that his fatigue and nervousness affected his performance of sobriety tests at the station. In cross-examination, Mr. Stewart agreed that his condition as shown on the breath room DVD was the same as his condition at the time the officer pulled him over.

4.0: APPLICABLE LEGAL PRINCIPLES

[23] The warrantless seizure of breath samples is presumptively unreasonable. The Crown has the burden of establishing on the balance of probabilities that the seizure was authorized by law. The prosecution is obliged to demonstrate that the officer had reasonable grounds to arrest the motorist for impaired driving and to make a breath demand under s. 254(3): R. v. Shepherd, 2009 SCC 35, [2009] S.C. J. No. 35 at ¶15-16; R. v. Collins (1987), 33 C.C.C. 1 (3d) (S.C.C.) at page 14.

[24] The concept of "reasonable grounds to believe" has both subjective and objective components. The subjective element is satisfied where the police officer honestly believes the suspect has committed an offence and that evidence of the offence can be seized. Under the objective component, the question is whether the officer's subjective belief is supported by objective facts. The test is met where a reasonable person in the position of the officer would be able to conclude that there were reasonable grounds for the arrest: R. v. Storrey, [1990] 1 S.C.R. 241 at page 250; R. v. Censoni, [2001] O.J. No. 5189 (S.C.J.) at ¶ 35; R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 (C.A.) at ¶38.

[25] "Reasonable grounds to believe" sits on a continuum of standards of proof. It has been described as reasonable probability, a reasonable belief, a fair probability, or the point where credibly-based probability replaces suspicion. It is less than a prima facie case for conviction, proof on the balance of probabilities, or proof beyond a reasonable doubt. It is more than a guess, a hunch based on experience, or reasonable suspicion: Shepherd at ¶ 23; Bush at ¶ 37; R. v. Morelli, 2010 SCC 8, [2010] S.C.J. 8 at ¶ 91; R. v. Wang, 2010 ONCA 435, [2010] O.J. No. 2490 (C.A.) at ¶ 17; R. v. Campbell, 2010 ONCA 588, [2010] O.J. No. 3767 (C.A.) at ¶ 49-53; Censoni at ¶ 29-31.

[26] The analysis is highly fact-driven. It requires an assessment by the court of the totality of the relevant and reliable information available to the officer. This includes information that supports the officer's belief as well as information that tends to undermine it. But the inquiry should not be reduced to a mathematical exercise of comparing one list of factors supporting the officer's opinion with a second list of considerations pointing the other way: Bush at ¶ 56, Censoni at ¶ 43, 46.

5.0: ANALYSIS

[27] There is a conflict in the evidence between P.C. Wang and Mr. Stewart regarding how Mr. Stewart drove. He said his was driving well whereas P.C. Wang said he was driving poorly. Mr. Stewart had been drinking alcohol; P.C. Wang had not. Mr. Stewart was fatigued; P.C. Wang was not. P.C. Wang made full notes of his observations; Mr. Stewart did not. P.C. Wang's testimony regarding Mr. Stewart's physical signs of intoxication when he was stopped are corroborated to large measure by Mr. Stewart himself who admitted to drinking, and that his eyes are red and his speech is often hard to make out clearly. The qualified technician also observed red eyes and poor speech. Despite Mr. Stewart's denial of swaying, P.C. Wang's observations that Mr. Stewart swayed at the roadside and at the station was consistent with the testimony of P.C. Faulkner and corroborated by the breath room DVD.

[28] The deficiencies and imperfections in P.C. Wang's notes do not adversely impact on his credibility. He may not have written down that the car that was cut off by Mr. Stewart applied its brakes, but his notes do state that Mr. Stewart made an abrupt lane change that interfered with another car. In other words, the omission of a detail does not undermine his core observation that Mr. Stewart suddenly interfered with other traffic. His noting of the effects of alcohol as extreme rather than obvious was not the product of carelessness or a desire to exaggerate, but was simply a mistake. At all times P.C. Wang was clear that Mr. Stewart appeared to be under the influence of alcohol and he candidly acknowledged his error in his testimony. I found P.C. Wang to a careful, conscientious and reliable witness. He had a duty to investigate and to make sufficiently complete and accurate notes and to give honest evidence. He did all these things.

[29] Mr. Stewart was driving a car after drinking alcohol and while he was very tired. I accept that he thinks that he drove properly. However, his ability to perceive the events was clouded by both alcohol and fatigue. On the other hand, P.C. Wang made his observations while sober, alert and duty-bound to fairly note what he saw. Where the evidence between P.C. Wang and Mr. Stewart differs, I prefer the evidence of P.C. Wang.

[30] Regarding reasonable and probable grounds, it is not necessary that the officer's observations be later proven as true. Instead, the grounds need only be reasonable: R. v. Bush, supra at ¶ 66. In this case, it turns out that Mr. Stewart's eyes are habitually red and watery and his speech is always hard to understand. However, it was reasonable for P.C. Wang to associate Mr. Stewart's eyes and his speech with intoxication by alcohol when viewed together with the smell of alcohol on his breath, the admission of drinking, and Mr. Stewart's poor balance. All of these indicia of intoxication were reinforced by the driving evidence which consisted of driving substantially under the speed limit, weaving within his own lane, taking a long distance to stop for the police, and an abrupt lane change which interfered with another motorist.

[31] In the totality of the circumstances that I accept, I find that P.C. Wang had ample reasonable and probable grounds to believe that Mr. Stewart's ability to operate a motor vehicle was impaired by the consumption of alcohol. The officer's breath demand pursuant to section 254(3) of the Criminal Code was lawful. Consequently, the evidence obtained following that demand was also lawfully obtained and is admissible.

[32] If I am wrong that P.C. Wang had reasonable and probable grounds to make a breath demand, I would not exclude any evidence obtained subsequent to that demand. If there was a breach of his Charter rights, it fell on the lower end of the spectrum of seriousness. There was no markedly intrusive impact on Mr. Stewart's Charter protected interests. The adjudication of the case on its merits would be very much disfavoured by failing to admit the evidence. In the balance, having regard to all the circumstances, and the long-term repute of the administration of justice, Mr. Stewart has failed to demonstrate that the admission of the evidence could bring the administration of justice into disrepute.

6.0: CONCLUSIONS

[33] Mr. Stewart's Charter application is dismissed.

[34] As agreed by the parties, the evidence of the police witnesses on the voir dire is also applied to the trial. The defence did not to call evidence on the trial proper. The totality of the uncontradicted and reliable police evidence leads me to conclude that Mr. Stewart's ability to operate a motor vehicle was impaired by the consumption of alcohol. Therefore, a finding of guilt is entered on Count 1. Equally, the uncontradicted and reliable evidence is that Mr. Stewart's blood alcohol concentration exceeded the legal limit at the time of driving. Therefore a finding of guilt is entered on Count 2 as well. The Crown will advise me as to which charge a conviction shall be entered which a judicial stay on the other count.

ORIGINAL SIGNED BY JUSTICE SCHWARZL

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice