Court File and Parties

Court File No.: Toronto

Ontario Court of Justice

Between:

Her Majesty the Queen

Mr. L. Mandel, S. Heeney for the Crown

— And —

Jon Harasti

Mr. A. Lerner for the Accused

Heard: September 7, 2011, April 19, 2012

Decision

NAKATSURU J.:

Introduction

[1] The accused, Mr. Harasti, is charged with impaired driving and operating a motor vehicle while his blood alcohol level was over the legal limit. He has brought a Charter application alleging a violation of his s. 8 right. I dismiss the application and find him guilty of both counts.

[2] On November 7, 2009, the police were attending to a car accident scene in an unrelated matter. P.C. Burnside observed the accused drive towards the scene in what he described as an aggressive manner. P.C. Burnside stopped the vehicle. Once stopped, he observed some indicia of impairment and detected an odour of alcohol. P.C. Burnside ultimately arrested Mr. Harasti for impaired driving. He was taken to the police station where Mr. Harasti gave two suitable samples of his breath. The first reading was 151 mg of alcohol per 100 ml of blood and the second was 135 mg of alcohol per 100 ml of blood.

[3] The defence submits that P.C. Burnside did not have reasonable and probable grounds to arrest the accused or make the Intoxilyzer demand. As a result, there was a violation of Mr. Harasti's s. 8 Charter rights. The evidence of the readings, it is argued, should be then excluded under s. 24(2).

[4] The defence further argues that should the Charter application be dismissed, the breath readings should not be admitted into evidence given that the breath samples were not taken "as soon as practicable" as required by the Code.

[5] Finally, the defence submitted that the Crown has failed to prove the impaired charge beyond a reasonable doubt.

Section 8 of the Charter

[6] This was a warrantless search. As a result, the Crown has the burden of proving that reasonable and probable grounds existed for the breath demand: see R. v. Haas, 76 O.R. (3d) 737 (C.A.).

[7] There is both a subjective and objective component to establishing reasonable and probable grounds: see R. v. Shepherd, 2009 SCC 35, 245 C.C.C. (3d) 137 (S.C.C.). The objective component is satisfied when a reasonable person in the position of the police officer would conclude there were reasonable and probable grounds for the arrest and the breath demand. The officer need not have a prima facie case for conviction before he is permitted to continue with his investigation.

[8] The totality of the circumstances must be considered. There is no minimum amount of time investigating or mandatory questioning required before the formation of reasonable and probable grounds; not all the indicia of impairment are required to exist, not all innocent explanations need be accepted: see R. v. Bush, 2010 ONCA 554, 259 C.C.C. (3d) 127 (Ont. C.A.)

[9] I accept the evidence of P.C. Burnside. He gave his testimony in a straightforward manner, had good recollection of the events, and was not significantly impeached on cross-examination. It was further largely corroborated by his escort, P.C. Lokenath. The fact that P.C. Burnside referred to the accused mumbling is not inconsistent with his admission he could understand what the accused said otherwise or the fact the accused is understandable in the video. It was only on one occasion the officer said the accused mumbled.

[10] P.C. Burnside subjectively believed that he had reasonable and probable grounds. I agree that he only arrested Mr. Harasti when the officer asked to smell his breath. But P.C. Burnside testified that he had all the grounds required for the arrest. The defence argued that P.C. Burnside did not subjectively believe it because he asked to smell his breath. It is submitted, why would he do that if he had the requisite grounds? In my view, there is nothing inconsistent in the officer doing so with his purported subjective belief. First of all, P.C. Burnside never conceded in his testimony that he never had the subjective belief required for the arrest. He remained firm on this point. The fact that he asked to smell his breath does not in my view, impeach his credibility on this issue. The officer had a number of grounds up to this point in time. The odour of alcohol was coming from the car. He decided to investigate further to see if he could pinpoint the smell to the breath of the accused. This decision was not that unusual given that the officer had only a small means of access to the accused through a narrow space at the driver's side window and, as he testified, he decided to ask questions to further his investigation. P.C. Burnside admitted that generally an alcohol smell could come from the car and not the accused. However, P.C. Burnside denied he believed at the time the alcohol came from the car and not the accused.

[11] The officer based his grounds for the arrest and the demand on the following facts. He observed Mr. Harasti's car's engine rev loudly, and the car approach at what appeared to be a high rate of speed on a residential street. The police cruiser's emergency lights were on at the time. It appeared to weave to the curb on the east side, almost hitting the curb, and approached the tow trucks and made an abrupt stop. The officer looked at the driver. He motioned the vehicle to proceed and the car drove around the tow truck and came forward. The vehicle stopped about 20 feet south of the officer. The driver hesitated and P.C. Burnside gestured to the accused to come forward. Mr. Harasti pulled ahead. He gestured the driver to stop and called out. The driver did not want to look at him but just kept staring into the vehicle. The driver's window was opened a bit. P.C. Burnside took a few steps forward and asked him why he was driving so aggressively. Mr. Harasti did not respond. He asked at this question at least twice. His eyes appeared glossy and wet looking. There was an odour of alcohol coming from the car. Mr. Harasti asked why he was being stopped. To P.C. Burnside, his speech was slurred; the accused not fully pronouncing the words. He continued to talk but it was mumbled. P.C. Burnside asked Mr. Harasti if he had consumed any alcohol. There was no answer and Mr. Harasti looked away. P.C. Burnside asked if he could smell his breath. Mr. Harasti immediately closed his lips and refused further contact.

[12] At this point, the grounds relied on by the officer were numerous: the driving, high rate of speed, not straight driving, trouble manoeuvring the vehicle, difficulty obeying his commands on the road, refusing to answer questions, the smell of alcohol from the car, the slurred speech, mumbling, glossy eyes, and his refusal to have a conversation with the officer. He was arrested for impaired driving at 2:39 a.m. I accept that P.C. Burnside subjectively believed that he had reasonable and probable grounds for the arrest and the demand.

[13] I further find that this belief was objectively reasonable. The police officer was confronted with a driver who drove aggressively towards a scene where there was a cruiser with its lights on. While it is true that P.C. Burnside could not estimate the speed or know the reason for the revving of the engine, I accept his evidence that the car was moving quickly and the revving attracted his attention. This is not normal driving behaviour especially in the vicinity of visible police presence. In addition, there was some hesitation on the part of the driver in obeying P.C. Burnside's directions. Again, there could be innocent explanations for that, but this fact must also go into the mix with respect to reasonable grounds.

[14] Then there was the lack of response when questioned, the eyes appearing glossy and wet, the mumbling, and the slurred speech. I accept that while the physical indicia of impairment were not gross, they were present.

[15] Further, there was the smell of alcohol coming from the car. Again, while there could be other sources for the odour than the driver, there is nothing in the evidence to suggest there were alcohol containers in the car. Mr. Harasti was alone. It is reasonable to assume that the odour could be coming from the driver.

[16] The refusal to answer the questions why are you driving so aggressively and whether he had been drinking and the clenching of the mouth shut in response to the request to smell his breath are important. Firstly, the request to smell the breath came immediately after the question about alcohol consumption. It did not simply come out of the blue. P.C. Burnside could reasonably assume that the clenching of the mouth shut was not the result of a driver reacting in surprise to a startling and apparently irrelevant request to smell one's breath. Rather coming immediately after the question about drinking, a reasonable observer could find that the accused's actions were a result of a desire to hide the smell of alcohol on his breath and to avoid detection by the police officer.

[17] Of course, it was open to P.C. Burnside to take other steps before arresting Mr. Harasti. However, this is not the test for reasonable and probable grounds. P.C. Burnside had before him a constellation of facts that constituted reasonable and probable grounds that Mr. Harasti was operating a vehicle while his ability to drive was impaired by alcohol. The officer is not required to accept all the possible innocent explanations for what he saw. In sum, he had a driver who drove aggressively, failed to cooperate fully with the police, with some physical symptoms of alcohol consumption, with the odour of alcohol coming from the car in which he was the sole occupant, and who behaved in a manner to avoid possible detection of being impaired by alcohol. These were sufficient grounds to meet the objective component of the test.

[18] I therefore find no violation of s. 8 and the Charter application is dismissed.

As Soon as Practicable

[19] Pursuant to s. 254(3) a sample of breath must be taken as soon as practicable after a demand is made. Whether the sample was provided within a reasonably prompt time depends upon all the circumstances. In R. v. Vanderbruggen, [2006] O.J. No. 1138 (Ont. C.A.), Rosenberg, J.A. for the Court sets out the meaning of the phrase, "as soon as practicable" at paragraphs 12 and 13:

That leaves the question that is at the heart of this appeal -- the meaning of as soon as practicable. Decisions of this and other courts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances. See R. v. Phillips, 42 C.C.C. (3d) 150 (Ont. C.A.) at 156; R. v. Ashby, 57 C.C.C. (2d) 348 (Ont. C.A.) at 351; and R. v. Mudry, R. v. Coverly, 1979 ABCA 286, 50 C.C.C. (2d) 518 (Alta. C.A.) at 522. There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably. See R. v. Payne, 56 C.C.C. (3d) 548 (Ont. C.A.) at 552; R. v. Carter, 59 C.C.C. (2d) 450 (Sask. C.A.) at 453; R. v. Van Der Veen, 1988 ABCA 277, 44 C.C.C. (3d) 38 (Alta. C.A.) at 47; R. v. Clarke, [1991] O.J. No. 3065 (C.A.); and R. v. Seed, [1998] O.J. No. 4362 (C.A.).

In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that -- in all the circumstances -- the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody. See R. v. Letford, 150 C.C.C. (3d) 225 (Ont. C.A.) at para. 20; R. v. Carter, supra; R. v. Cambrin, 1 C.C.C. (3d) 59 (B.C.C.A.) at 61-3, and R. v. Seed at para. 7.

[20] P.C. Burnside testified that they received a radio call just after 2:00 a.m. to attend an accident scene on Fallingbrook Road close to Queen Street. P.C. Lokenath testified that they arrived at the scene at 2:17 a.m. There were already tow trucks there. Mr. Harasti's car was stopped at 2:35 a.m. P.C. Burnside arrested the accused at 2:39 a.m. The demand was made at 2:41 a.m. The first sample was taken at 4:18 a.m. This was within the two hour period.

[21] P.C. Burnside testified that after the accused was under arrest and the demand read, he had to call for another unit to come and take over the first investigation. The first officer on scene was the road sergeant, Sgt. Neal. P.C. Burnside told his supervisor of the two calls he was on and that he had a person under arrest. The sergeant made a brief assessment of the situation and spoke to the accused. Two tow cards had to be filled out for the two vehicles. It took a few minutes to sort out and pass on all the information before they could leave the scene.

[22] After the arrest, P.C. Burnside assigned P.C. Lokenath to start the inventory of the accused's car in order to prepare it for towing. P.C. Lokenath had just become a police officer and was in his second week of a five week period of training. The officer began to do this and testified that there was a lot of firefighting gear in the accused's car. He did not finish his task as the road sergeant arrived. The two officers left the scene at 3:07 a.m. to go to 41 Division for the breath test. There was no time noted as to when the sergeant arrived. P.C. Burnside believed that he arrived around 3 a.m. The accused arrived at 41 Division at 3:17 a.m.

[23] I find that it was reasonable not to have immediately left the scene for 41 Division. There was still the aftermath of an accident on the roadway and a police investigation into the driver who left the scene. The subject vehicle remained partially in the road and there were tow trucks on scene. It would have been irresponsible to leave with the accused with no police officers on scene to ensure safety and the continuation of the investigation.

[24] It was argued by the defence that P.C. Lokenath could have remained to continue with the investigation and P.C. Burnside could have gone to 41 Division with the accused. This option was not realistic. P.C. Lokenath, as defence counsel pointed out in cross-examination, was "fresh out of police college." It would not have been prudent to have left him alone in this situation. Indeed, it was a part of his training to be under the charge of his mentor, P.C. Burnside. I find it reasonable not to have left him alone at the scene. In the cross-examination of the police officers, few questions were put to the officers about whether P.C. Burnside could have left P.C. Lokenath alone or whether they could have departed the scene any earlier. P.C. Lokenath was never crossed on his ability to conduct the accident investigation on his own or whether it was necessary for him to accompany P.C. Burnside with the accused. However, P.C. Burnside did say in cross-examination that it was better to have his escort with him when he was transporting a prisoner.

[25] The total amount of the delay that took place was reasonable. The officers had to wait for Sgt. Neal to arrive. The road sergeant would have to have been briefed. In my opinion, the 28 minute delay from the time of arrest to the leaving of the scene was reasonable and can be readily explained by the circumstances that existed at the time.

[26] The other time period challenged by the defence was from the time of arrival at 41 Division to the taking of the breath samples. The defence submits that when given his right to counsel at the scene, Mr. Harasti stated he did not wish to exercise his right to counsel. At the station, Mr. Harasti spoke to duty counsel. The defence submits that this delay was unreasonable since Mr. Harasti did not want to obtain legal advice.

[27] At 3:20 a.m. Mr. Harasti was brought into the booking room at 41 Division. This was captured on video which was made an exhibit.

[28] The Crown submitted that on the video of the booking, the accused asked to call his lawyer. I have reviewed the video. When the booking sergeant asked Mr. Harasti if he understood his right to counsel, Mr. Harasti stated he did and that he was going to do that before he did anything else. After leaving the booking room, P.C. Burnside testified that he took the accused to the report room. At 3:27 a.m. he called duty counsel. Duty counsel called back at 4:06 a.m. and the accused spoke to him. After receiving advice, Mr. Harasti was turned over to the designated technician at 4:12 a.m. Thus there is about a 45 minute delay caused by the obtaining of legal advice.

[29] P.C. Kerr, the designated technician, testified. He testified that he arrived at 41 Division and set up the Intoxilyzer at 3:09 a.m. He testified that after he did the checks on the machine, he conducted a test on another subject before the accused was brought in. Mr. Harasti was brought in for the first sample at 4:12 a.m. In examination-in-chief, P.C. Kerr said that prior to conducting the test, he ascertained that Mr. Harasti spoke to duty counsel which was Mr. Harasti's wish. This is obviously hearsay and will be ignored.

[30] However, on the booking video, I find that Mr. Harasti did ask to exercise his right to counsel at the station. It is true that in response to his right to counsel given at the scene, the accused did not want to call a lawyer. In cross, P.C. Burnside admitted that he placed a call to duty counsel at the station despite the accused saying no at the roadside. Nonetheless, P.C. Burnside was never asked specifically in cross why he ultimately called duty counsel. In my view, given that Mr. Harasti during his parade obviously changed his mind about not wanting to contact a lawyer, something that was said in P.C. Burnside's presence, this was the reason why the officer placed the call to duty counsel. This delay was in my view reasonable to allow the accused to exercise his constitutional right.

[31] Thus, in summary, I find that although there was a delay, the tests were taken within a reasonably prompt period of time. First of all, the samples were taken within the two hour period. The delay caused at the scene was reasonable. The two police officers could not leave with Mr. Harasti immediately. There was an accident scene that simply could not be abandoned. Although there is no exact time as to when the road sergeant arrived, looking at the evidence and what was required such as passing off of information and the sergeant making his own assessment, the amount of time that passed before the accused left the scene, is reasonable. Given how inexperienced P.C. Lokenath was, it was entirely reasonable that P.C. Burnside did not simply leave him there while taking the accused to 41 Division. The second period of delay involves the calling of duty counsel. I find that this too is a reasonable explanation for the delay. In my view, the samples were taken within a reasonably prompt period of time.

The Impaired Driving Charge

[32] The test for impairment as set out in the leading case of R. v. Stellato, 78 C.C.C. (3d) 380 affirmed, [1994] 2 S.C.R. 478 is: "If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out."

[33] Impairment can affect an individual's physical ability to handle the car; it further can affect the driver's field of judgment in making decisions as he/she operates the motor vehicle. However, proof beyond a reasonable doubt must be made of impairment on the ability to drive a car not impairment in general. See R. v. Andrews, 1996 ABCA 23, 104 C.C.C. (3d) 392 (Alta. C.A.)

[34] P.C. Burnside testified about the driving, the high rate of speed, the manner of driving, the trouble manoeuvring the vehicle, the difficulty obeying his commands on the road, the refusal to answer all questions, the smell of alcohol from the car, the slurred speech, the mumbling, the glossy eyes, and the refusal to have a conversation with the officer. The accused was arrested for impaired driving at 2:39 a.m. After the arrest, he had to demand the accused put the car into park. He had to make several demands. I accept the officer's recollection of this despite having not noted it down fully. He further testified that when the accused exited the car, the accused had problems walking a small incline in the road. It was good asphalt but the accused had to be held. After taking the accused out the car, he smelled alcohol on the accused's breath.

[35] P.C. Lokenath testified that P.C. Burnside had to make three demands to the accused to put his car into park. He further testified that Mr. Harasti when exiting the car was pretty unsteady on his feet as he walked from the driver's door to the rear of the car. He described the accused as uncooperative. His eyes were pretty red, bloodshot, his speech slurred and he appeared to mumble. The officer was cross-examined on the slight grade. I find it is unlikely that such a slight grade would significantly affect a sober person's sense of balance.

[36] Defence counsel argues that a credibility concern arises because P.C. Burnside testified that he yelled at the accused to put his vehicle into park. P.C. Lokenath denied his escort yelled but that it was a demand. I find this difference inconsequential if it is a difference at all. P.C. Lokenath made it clear to me that P.C. Burnside was forcefully demanding this action. While he would not describe it as a yell, the fact that P.C. Burnside described it as such, does not affect the weight of either witness's evidence. Both are very subjective descriptions; one man's yell could well be another's demand.

[37] P.C. Kerr made certain observations of the accused in the Intoxilyzer room. He observed the accused to have an odour of alcohol on his breath, his eyes glossy and blood shot, his speech was fair, his face flushed and red. His attitude was changing; at times talkative and antagonistic; other times calm and cooperative. On the general effects of alcohol, P.C. Kerr opined it was on the high side of slight but not obvious.

[38] I find that when taken altogether, the Crown has proven beyond a reasonable doubt the accused's ability to operate a motor vehicle was impaired by alcohol. The driving and his behaviour when confronted in the street by the police was out of the norm and showed aggression and non-cooperation; signs of an impairment of judgment brought on by the effects of alcohol. There were physical symptoms including those observable on his face, speech, and an effect on his balance. While the effects of impairment are not great, they certainly in my view, in the context of the evidence as a whole, meet the test in Stellato.

[39] For these reasons, I find that the Crown has proven beyond a reasonable doubt both charges. On the basis of the Kienapple principle, the over 80 charge will be stayed and a conviction will be registered on the impaired driving.

Released: May 17, 2012

Signed: