Court Information
Court: Ontario Court of Justice
Date: May 30, 2012
Between:
Her Majesty the Queen
— AND —
Rhonda Hill
Before: Justice Robert S. Gee
Heard on: May 11, 15 and 16, 2012
Ruling on Charter Application released on: May 30, 2012
Counsel
Derek Zuraw ............................................................. for the Crown
Charles O. Spettigue ................................................... for the Accused
Decision
Gee J.:
Introduction
[1] This is an application brought by the accused, Rhonda Hill, for an order pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms excluding from the trial herein the results of the analysis of breath samples obtained from her on April 10, 2011 as well as exclusion from evidence of any utterances of Ms. Hill and any observations made of Ms. Hill by Officers White and Lickers of the Six Nations Police made the same day.
[2] It is Ms. Hill's contention that she's entitled to such an order as a result of the violation of her rights pursuant to sections 8, 9 and 10(a) of the Charter.
[3] Ms. Hill is charged that she, on April 10, 2011, did operate a motor vehicle on Chiefswood Road, in the Township of Tuscarora on the Six Nations Reserve, while her ability to do so was impaired by alcohol. She is also charged that at the same time and place, she operated a motor vehicle having consumed alcohol in such a quantity that the concentration in her blood exceeded 80 mg of alcohol in 100 ml of blood.
Facts
[4] At approximately 7:47 PM on April 10, 2011, Officer Marwood White of the Six Nations Police was operating a marked police vehicle southbound on Chiefswood Road on the Six Nations Reserve. His cruiser was equipped with a radar device which he had activated and was operating that evening.
[5] Officer White testified that he had tested the radar device at 7:20 PM that evening and was satisfied that it was operating properly. In cross-examination, he admitted that he did not perform a stationary object test with the device, which is one of the testing procedures recommended by the manufacturer.
[6] While traveling southbound on Chiefswood Road the radar device emitted a high-pitched sound which indicated a motor vehicle coming northbound was traveling at a high rate of speed. The radar device indicated the speed of this vehicle to be 130 km/h. The speed limit on this section of Chiefswood Road is 80 km/h.
[7] Officer White testified that in addition to the information provided to him by the radar device, he was able from his own observations of the vehicle, to conclude that it was traveling at a speed well in excess of the posted limit. As a result, he turned his cruiser around and traveled northbound on Chiefswood Road to pursue the vehicle. He indicated that to catch up to it he had to attain speeds of 160 km/h. When he caught up to the vehicle, he activated the emergency lights of his cruiser to indicate to the vehicle to pull over.
[8] However, according to Officer White, the vehicle did not pull over immediately. He stated he followed it for 1 km with his emergency lights activated and during that distance, even though this is a rural stretch of roadway, there were numerous areas where the vehicle could have safely pulled off to the right. He indicated that they passed several residential driveways, as well as an abandon garage with a parking lot and a Veteran's Association all on the right-hand side of the roadway, any of which the vehicle could have safely pulled into. Also, they were approaching the Village of Ohsweken and as they were doing so, there were more driveways and other areas where the motor vehicle could have safely pulled over but did not.
[9] Eventually the vehicle came to the intersection of Chiefswood Road and 4th Line which is controlled by a stoplight. At this point the vehicle slowed as if to make a right turn onto 4th Line and while doing so, Officer White manoeuvred his cruiser in front of the vehicle and blocked it from proceeding further.
[10] At 7:50 PM, Officer White approached the driver side of the vehicle. The driver, later identified as Ms. Hill, rolled down her window and stated to Officer White "just follow me home". Officer White indicated that at this point he advised Ms. Hill that he had stopped her for speeding. He also indicated that during this interaction he observed Ms. Hill to have red glassy eyes, an odour of an alcoholic beverage emanating from her breath and as she spoke her speech was slow and she was slurring her words. He also indicated he observed 4 to 6 cans of beer on the floor the vehicle behind the driver seat. He initially testified the beer cans were empty, but in cross-examination admitted he was not certain and they could have been full.
[11] Officer White testified that at this point he formed the opinion that Ms. Hill's ability to operate the motor vehicle was impaired by alcohol. At 7:52 PM he advised her she was under arrest for impaired driving and he advised her of her rights to counsel. At 7:54 PM he read her the standard caution as well as the breath demand.
Issues
[12] It is Ms. Hill's contention that Officer White did not have a lawful basis for pulling her over and by doing so she was subject to an arbitrary detention thereby infringing her rights under section 9 of the Charter.
[13] Ms. Hill also contends that Officer White did not advise her for the reason for her detention when he pulled her over, thereby infringing her rights under section 10(a) of the Charter.
[14] As well, it is the contention of Ms. Hill that Officer White did not have reasonable and probable grounds to believe that Ms. Hill was operating the motor vehicle while her ability to do so was impaired by alcohol, and as such, the samples of her breath taken pursuant to the demand constitute an unlawful search thereby infringing her rights under section 8 of the Charter.
[15] As a result of these infringements of her Charter Rights, Ms. Hill seeks an order excluding from the trial herein the results of the analysis of the breath samples obtained from her on April 10, 2011 as well as the exclusion of any utterances she made that day and observations of her made by the officers she dealt with.
[16] I propose to deal with these issues in order.
Charter Section 9 – Arbitrary Detention
[17] Mr. Spettigue on Ms. Hill's behalf argues that Officer White is not entitled to rely on the radar device to form his belief that Ms. Hill was speeding, since prior to using it, he did not perform the stationary object test, contrary to the recommendations of the manufacturer. He also contends that as Officer White did not pace Ms. Hill's vehicle with his cruiser, he had no other basis for determining her speed and as such had no grounds to stop her and investigate her for speeding.
[18] I find that Officer White was in the circumstances permitted to rely on the results of the radar device. Notwithstanding that he did not perform the stationary object test, he testified that he did test the device prior to setting out on the road in the cruiser, and was satisfied that the device was working properly. There was nothing to indicate to Officer White at the time, that the device was not working properly and in addition, he testified that his observations of the speed of Ms. Hill's vehicle itself also formed part of the basis for his belief that she was driving in excess of the posted limit.
[19] In this regard, I agree with the reasoning of Klein J. in the case of R. v. Volfson [2009] O.J. 1978, which is also a case where the officer failed to strictly follow the manufacturer's guidelines for the testing of a radar device. At trial, the Justice of the Peace held that this failure to follow the manufacturer's guidelines was fatal to the crown's case and dismissed the charge. In allowing the appeal, Klein J. stated in paragraph 18 the following in relation to manufacturer's guidelines: "Manufacturer's directions are not statutory requirements and should not be elevated to that status. They are not written for that purpose nor have they been adopted as such."
[20] Additionally, one must not confuse reasonable and probable grounds, which is all Officer White needed in order to pull Ms. Hill over and investigate her for speeding, with proof beyond a reasonable doubt which is required at trial. In these circumstances, given the results provided by the radar device, Officer White's observations of Ms. Hill's speed and the fact that Officer White had to attain 160 km/h to catch up to her vehicle, he had ample grounds to stop and investigate her for speeding.
[21] As such, I find that Ms. Hill was not arbitrarily detained when Officer White stopped her and therefore there was no infringement of her section 9 Charter right by his so doing.
Charter Section 10(a) – Right to Be Informed of Reasons for Detention
[22] Ms. Hill also contends that section 10(a) of the Charter required Officer White to promptly advise her of the reason he pulled her over and detained her. I agree there is no doubt; Ms. Hill had the right to be informed promptly of the basis for her detention by Officer White.
[23] However, it was the testimony of Officer White, that as he approached Ms. Hill's vehicle, she rolled down her window and stated to him "just follow me home" and immediately following this utterance, he advised her that he had pulled her over and was investigating her for speeding. If I believe Officer White's testimony then in these circumstances he would have complied with the requirements of section 10(a) of the Charter and Ms. Hill's rights in that regard would not have been infringed.
[24] I note that the only evidence before the court on this issue is the testimony of Officer White. Ms. Hill did not testify, nor did she file any affidavit material in support of her Application. Mr. Spettigue on Ms. Hill's behalf contends that I ought not to believe Officer White's testimony on this point as Officer White did not make an entry in his notebook indicating he advised Ms. Hill of the reason he pulled her over.
[25] Mr. Spettigue argues that the reason for Officer White stopping Ms. Hill is an integral part of his investigation and as such he should have made a note of it. He argues that police officers have a duty to keep accurate notes of their investigations. Officers' notes are no longer simply a tool to assist their memory. They are also one of the primary written records of the steps taken in an investigation. It is well known to police officers that their notes will be disclosed as part of the crown case and as a result are also a means by which an accused person is given discovery of the case against them. As such, it's Mr. Spettigue's contention that if there is an important aspect of the investigation that the officer testifies to, but for which he or she has made no note of, then this will negatively impact their credibility on this point. In support of this contention, he relies on the cases of R. v. Anderson 2008 ONCJ 28 and R. v. Domski [2002] O.J. No. 3544.
[26] However, I find that these cases do not stand for the proposition that "if it's not in the notes, it didn't happen". I accept that notes are no longer simply a memory aid for the officer and since they form part of the disclosure process, should as much as possible, provide an accurate record of the important aspects of the officer's investigation. That being said, as referred to by Nadel J., in R. v. Anderson (supra), I agree with the reasoning of Duncan J., in R. v. Golubentsev [2007] O.J. No. 4608 in which he states at paragraph 30 that although officers are expected to at least somewhere, maybe not necessarily in their notes, disclose their significant observations, notes are not meant to be a comprehensive script of everything that occurred.
[27] In this case, in assessing Officer White's credibility, his notes do make reference to, and disclose his observations concerning his belief that Ms. Hill was speeding. This is not a case where Officer White fails to mention anything regarding the fact that he was investigating Ms. Hill for a speeding infraction. Additionally, there is no evidence before the court that Officer White knew it was an issue in this matter whether or not he advised Ms. Hill of the reason he pulled her over. His evidence in this regard was given, I find, in an honest and straightforward manner. In responding to a question by the Crown as to whether he said anything to Ms. Hill when he approached her vehicle, he testified that as soon as Ms. Hill finished saying "just follow me home" he advised her that he had stopped her for speeding. Furthermore, he testified that it is part of his routine on any traffic stop that the first thing he does is tell the driver the reason for the stop.
[28] Given the lack of any other evidence that he did not advise Ms. Hill of the reason for the stop, given that there was reference in his notes to his speeding investigation of her, given the manner in which his testimony on this issue was elicited and given he testified it is part of his usual routine to advise persons in this situation of the reason for the stop, I accept his evidence that he did advise Ms. Hill promptly of the reason why he stopped her and his lack of a note in this regard is not a sufficient basis for disbelieving him.
[29] As a result, I find that Ms. Hill has failed to satisfy me that her Right pursuant to section 10(a) of the Charter has been infringed.
Charter Section 8 – Unlawful Search
[30] Section 253(3) of the Criminal Code authorizes a police officer to make a demand for breath samples if he or she has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol.
[31] Reasonable grounds to believe have both subjective and objective elements. This requires the officer to subjectively have an honest belief that the person has committed the offence, and this belief must be supported by objective facts. The onus is on the Crown to prove that the officer had reasonable and probable grounds to make a demand because the Crown seeks to rely on breath samples obtained as a result of a warrantless search. See the decision of the Ontario Court of Appeal in R. v. Bush (2010), 259 C.C.C. (3d) 641 at par. 37-38 and the Supreme Court of Canada decision in R. v. Shepherd (2009), 2009 SCC 35, 245 C.C.C. (3d) 137 at par. 16-17.
[32] In making a breath demand, the reasonable and probable grounds standard is not onerous. It is not necessary that the accused be in an extreme state of intoxication before a demand can be properly made. The test is whether objectively, there were reasonable and probable grounds to believe the person's ability to drive was even slightly impaired by the consumption of alcohol. See: R. v. Bush (supra) par 46-48.
[33] In assessing whether reasonable and probable grounds exist, the totality of the circumstances must be considered. It is improper for a trial judge to dissect the officer's grounds in isolation. There is no scorecard or minimum number of indicia required before concluding reasonable and probable grounds objectively exist. The absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding of reasonable and probable grounds. Additionally, that there might be other explanations for some of the indicia observed by the officer in arriving at his or her opinion does not have the effect of eliminating them from the analysis or render them unreliable, again see: R. v. Bush (supra) par 54-58.
[34] In this case, Officer White testified that he formed the opinion that Ms. Hill's ability to operate her motor vehicle was impaired by the consumption of alcohol. As a result of forming this opinion, he arrested her for impaired driving and made a demand that she provide samples of her breath pursuant to section 253(3) of the Criminal Code. That Officer White subjectively held this belief is not in dispute. The issue is, when viewed objectively, whether he had reasonable and probable grounds to arrest her and make the demand.
[35] Officer White testified that in formulating his opinion, the factors he relied on were the speed Ms. Hill was operating her vehicle, along with the fact that she did not pull over in a reasonable amount of time when she had several opportunities to safely do so, the fact that when he did approach her vehicle she rolled down her window and made an utterance which to him was odd in the circumstances, as well when she spoke her speech sounded slow and she slurred the words. Her eyes were red and glassy and there was an odour of alcohol emanating from her breath. Additionally, he observed the cans of beer on the floor behind the driver seat which he felt were readily accessible to Ms. Hill as she drove.
[36] On behalf of Ms. Hill, Mr. Spettigue contends that viewed objectively, the observations made by Officer White fall short of reasonable and probable grounds. It is Mr. Spettigue's contention that in assessing the indicia of impairment relied on, before assessing the totality of those indicia, I must look at them individually and decide how much weight, if any, I ought to attribute to them.
[37] Mr. Spettigue argues that since Ms. Hill was not known to Officer White prior to this incident and since he was not familiar with her normal speech patterns, his assessment of her speech as being slow and her slurring the words, ought to be given no or very little weight. Additionally, he argues that the odour of an alcoholic beverage on Ms. Hill's breath similarly ought to be given little if any weight since an odour of alcohol is only a sign of consumption, not impairment. Furthermore, he contends that as with the other indicia, the fact that Ms. Hill's eyes were red and glassy ought to be given little weight as there may be other reasons unrelated to impairment by alcohol, such as crying or being upset that could account for these signs. Mr. Spettigue also points out that other than her speed, and not immediately stopping for the police, there were no other issues with the manner Ms. Hill drove. Additionally, he notes that there were no observations made by any officer after her arrest, of any problems or issues with her balance or ability to walk.
[38] In relation to the cans of beer observed by Officer White, Mr. Spettigue argues that I'm not in a position to determine whether the cans were empty or full. If they were full, it's his contention that they are irrelevant to the analysis. On behalf of the Crown Mr. Zuraw concedes that it's not possible for me to determine if the cans were empty or full. As a result, he takes the position that I ought to disregard the cans of beer as a factor in assessing whether Officer White had reasonable and probable grounds. It is Mr. Zuraw's position that even removing the cans of beer from the analysis, the indicia of impairment displayed by Ms. Hill when viewed objectively were more than sufficient to formulate reasonable and probable grounds to make the demand.
[39] Mr. Spettigue contends that upon an individual assessment of the indicia, I ought to conclude that each of them ought to be assigned little or no weight. Then, according to him, it is only upon conclusion of my individual assessment that I can properly view the totality of the circumstances.
[40] In support of this analytical framework, Mr. Spettigue relies upon the case of R. v. Cooper [1993] O.J. No. 501 a decision of MacDonell J. of the then Ontario Court of Justice - Provincial Division. In that case, the indicia of impairment displayed by Mr. Cooper as observed by the officers, were that he had glassy eyes, his speech appeared to be slurred and there was a strong odour of an alcoholic beverage coming from within the vehicle. In that case, MacDonell J. held that glassy eyes and slurred speech require a subjective assumption by the officer as to Mr. Cooper's normal state of his eyes and speech and, as he was a stranger to the officers, these particular circumstances were weak indicators of impairment. Additionally, he found that the strong odour of an alcoholic beverage only confirms consumption not impairment. As such he found that on an objective basis the officers did not have reasonable and probable grounds.
[41] No two cases are precisely the same. In comparing the case of R. v. Cooper (supra) to this case, I would note that in addition to glassy eyes and slurred speech, Ms. Hill also appeared to be speaking slowly, her eyes were also red, she made the utterance referred to, there was the speed she was driving and the fact that she did not pull over immediately and, the odour of an alcoholic beverage in this case was detected on her breath not just emanating from her vehicle.
[42] As to the analytical framework urged by Mr. Spettigue, I would note that Justice MacDonell in R. v. Cooper (supra), acknowledges that officers are "entitled to rely on the cumulative impact of those circumstances in forming an opinion as to the accused's impairment." (p. 5).
[43] The analytical framework as urged by Mr. Spettigue is precisely the method of analysis that the Court of Appeal in R. v. Bush (supra) found to be improper. I am not to dissect each of the grounds in isolation. I am to review the totality of the circumstances that Officer White found himself presented with and determine if his opinion was reasonable at the time of arrest (R. v. Bush (supra) par 66).
[44] Keeping in mind, that as stated above, the test is whether objectively, there were reasonable and probable grounds to believe Ms. Hill's ability to drive was even slightly impaired by the consumption of alcohol, and keeping in mind the proper analytical framework as set out in the cases of R. v. Bush (supra) and R. v. Shepherd (supra) for assessing Officer White's opinion, I find that on an objective basis, even leaving out the observation of the beer cans in the motor vehicle, when Officer White encountered Ms. Hill on that day in the circumstances he did and given the totality of the indicia of impairment he observed, there was ample evidence to support his belief that Ms. Hill's ability to operate her motor vehicle was impaired by alcohol.
[45] As a result of this finding, I conclude that the demand was properly made and that in so doing, her Rights pursuant to section 8 of the Charter have not been infringed.
Section 24(2) – Exclusion of Evidence
[46] Having concluded that Ms. Hill has failed to demonstrate on a balance of probabilities that her Charter Rights have been infringed, it is not necessary to address counsels' submissions in relation to the exclusion of evidence under section 24(2) of the Charter.
Conclusion
[47] For these reasons, the Application is dismissed.
Released: May 30, 2012
Signed: "Justice Robert S. Gee"