Court File and Parties

Court File No.: Newmarket Courthouse 4911-998-11-00285-00 Date: 2012-09-05 Ontario Court of Justice

Between: Her Majesty the Queen — and — Ian Crebbin

Before: Justice Peter N. Bourque

Heard: May 9, 2012

Reasons for Judgment released: September 5, 2012

Counsel:

• R. Scott, for the Crown
• G. Tsimiklis, for the accused Ian Crebbin

Bourque J.:

Overview

[1] As a result of his approach to a RIDE program set up on the ramp from westbound Hwy 407 to the north-south 404 Hwy, the defendant was charged with impaired driving and driving with excess alcohol on December 27, 2010.

Eugene Johnson

[2] Eugene Johnson is a 20 year veteran of the O.P.P. He was standing on the "bull nose" of the division between the north and south bound ramps of Hwy 404 where it is fed from westbound Hwy 407. It was cold and the traffic was extremely light. He states that he was in a marked SUV police cruiser with its lights flashing and there were safety flares. There were two other cruisers and two other officers at the scene.

[3] He states that at 11:56 p.m. he saw an SUV coming onto the Hwy 404 ramp from the westbound Hwy 407. About 150 metres from his position the vehicle stopped and began to back up the ramp in the left lane. The officer ran to his cruiser and drove up to the vehicle, which was still backing up slowly and had gone some 30 to 50 metres from where he first saw it. He motioned the SUV to pull over.

[4] He spoke to the driver, who was alone in the SUV, and smelled an odour of alcohol, although he cannot say how strong it was. The driver was identified as the defendant. The defendant was chewing gum, his face was red and his eyes were bloodshot. When asked how much he had to drink, the defendant said he had two drinks. The officer asked him to step out of the SUV, and walk to the cruiser, so he could make observations and decide whether he had reasonable and probable grounds to arrest the defendant for impaired driving. The officer stated that the defendant, while walking on the pavement, swayed on his way to the cruiser.

[5] The officer put the defendant in the back of his cruiser and asked him on several occasions to remove the gum from his mouth so he could be sure the smell of alcohol was not masked. After five requests the defendant spit out the gum. The officer asked again how many drinks he had and he said four drinks and said he was sorry he lied to the officer.

[6] At 12:00 a.m. the officer formed the opinion that the defendant was impaired by alcohol and arrested him at 12:02 a.m. He read him his rights to counsel, the caution and the breath demand. The defendant at that time said he wished to speak to a lawyer.

[7] At 12:10 p.m. the officer left for the station and arrived there at 12:28 p.m. He booked the defendant and spoke to him about calling counsel. The defendant thought that his lawyer would not be available but did not respond to the officer's further requests as to whether he wished to try to call his lawyer. The officer called duty counsel and the defendant spoke to duty counsel for two minutes.

[8] The officer took the defendant to the breath technician and the readings were obtained at 1:07 a.m. and 1:26 a.m. of 200 and 190 milligrams of alcohol in 100 millilitres of blood.

[9] In cross-examination the officer admitted that the defendant may have changed his mind about coming down the ramp to avoid a police investigation, which may have had nothing to do with a RIDE program, but stated that the defendant's backing up was a very dangerous manoeuvre, even if there was little or no traffic visible. It was the officer's belief that he was trying to avoid a RIDE program.

[10] He admitted that with regard to his recitation of conversations it was not verbatim when he made his notes back at the station. He also admitted that while he could have asked the defendant again for the name of his lawyer, when he asked him whether he wanted his own lawyer or duty counsel, and got no reply, he assumed the defendant did not want him to do anything further about getting a lawyer.

[11] It was suggested to the officer that his real reason for arresting the defendant for impaired driving was that he was frustrated when the defendant tried to back away from the scene and that the defendant lied to him about how much he had to drink. The officer strongly resisted that suggestion.

Stephen Buchanan

[12] Stephen Buchanan is an O.P.P. officer of some 4 years experience. He was at the RIDE program with Officer Johnson. He pointed out that the officers were in position, with the red flashlights used by the officers, to waive drivers over. He knew that Officer Johnson was there but cannot remember his exact location. He saw the defendant's vehicle come onto the Hwy 404 ramp and then stop and reverse. He got into his cruiser and followed Officer Johnson to the scene. He believed that there was a danger that the driver was impaired as it is not uncommon for impaired drivers to try to avoid the RIDE programs.

[13] He came up after Officer Johnson and stood near the defendant's vehicle but did not make note of any conversation other than the issue of the spitting out of the gum. He also made extensive notes of the gum package located on the seat of the defendant's car as in his experience driver's who have been drinking sometimes try to mask the smell of alcohol with gum.

[14] He believes that the defendant was arrested by Officer Johnson while the defendant was in the car. He made no notes of any observations of impairment of the defendant.

Did the officer have reasonable and probable grounds to arrest the defendant for impaired driving?

[15] The indicia of impairment noted by Officer Johnson was as follows:

• The defendant in his opinion was trying to avoid a RIDE program.
• The defendant was chewing gum and had to be asked several times to spit out the gum.
• The defendant had a smell of alcohol on his breath.
• The defendant had a red face.
• The defendant had bloodshot eyes.
• The defendant lied to him about the amount of alcohol he had consumed.
• The defendant swayed when he walked to the cruiser.

[16] Officer Buchanan did not make any note, nor did he have a recollection, of any of the indicia of impairment other than the fact of backing up on the ramp and the use of gum.

[17] Does this failure of the other officer near the scene to see other indicia of impairment cause me to doubt the evidence of Officer Johnson with regard to his observations of impairment? I note that Officer Johnson's observations, such as the red face and the glassy eyes, were largely those of being up close to the defendant. Officer Buchanan's evidence was that he only had a recollection of getting close to the defendant once while he was just arrested and that there was a smell of alcohol.

[18] The principal difficulty with Officer Johnson's observations is that he saw the defendant swaying. Officer Buchanan made no note of that. I accept that if he had seen that, he would have made a note. I think that it is not fatal to the observations of Officer Johnson that Officer Buchanan did not see it. It was Officer Johnson's investigation. Officer Johnson's attention was on the defendant. Officer Buchanan was "standing by" and it is clear he was leaving the investigation up to Officer Johnson. Officer Buchanan was clearly in error when he stated that the defendant was arrested from his SUV. This is an indication his attention was not fully focused on the defendant. He also stated that one of his tasks was to take care of the defendant's vehicle.

[19] It is important to remember that Officer Johnson's observations of impairment are in his notes which were made just after the incident. In fact, the officer was not seriously challenged about any aspect of his notes.

[20] I have previously commented (along with several of my colleagues) on the difficulty of accepting an officer's important observations of impairment when they did not appear in their notes. I have usually discounted their evidence as a result.

[21] In this case there is, in my opinion, nothing about Officer Buchanan's evidence which seriously contradicts the officer who was concentrating on his investigation.

[22] I therefore accept Officer Johnson's evidence about the course of this investigation, and more importantly his observations, which impact on the issue of the impairment of the defendant as contained in his notes.

[23] For the purpose of this analysis I do not accept that Officer Johnson arrested the defendant because he was frustrated. I find the officer had the requisite "subjective" belief in the impairment of the defendant.

[24] The defendant testified in this application and I accept that the defendant may have had another reason for not wanting to continue on the ramp when he saw the police cars (other than avoiding a RIDE program) and that his red face may be due to tanning. However, I believe that the officer should be allowed to make the reasonable inference that a driver who attempts to avoid what is obviously a RIDE program is doing so because he is aware of his potential liability for being charged with a drinking and driving offence by submitting to a RIDE investigation. I believe that this inference is reinforced by the fact that in attempting to avoid the RIDE program the defendant undertook a potentially dangerous and illegal act. A red face may indeed be from tanning, but the officer at the scene could also make the inference that it is one of the many potential signifiers of an impaired state.

[25] As stated in R. v. Bush, 2010 ONCA 554:

The important fact is not whether the officer's belief was accurate. It is whether it was reasonable at the time of the arrest. That the conclusion was drawn from hearsay, incomplete sources, or contained assumptions will not result in its rejection based on facts that emerge later. What must be assessed are the facts as understood by the peace officer when the belief was formed: R. v. Musurichan.

[26] The question to be decided is whether the belief was reasonable under the circumstances. It is not an onerous test. As set out in the cases of R. v. Censoni, [2001] O.J. No. 5189, and R. v. Wang, 2010 ONCA 435, it must not be inflated to the context of testing trial evidence. Neither must it be so diluted as to threaten individual freedom. There can be other factors which can explain indicia of impairment, but that does not eliminate the indicia or render them reliable.

[27] The defence argues that the officer had not formed his opinion until after he had put the defendant in his cruiser and had heard him say he had four drinks. Therefore he had no grounds before that point. That would be looking at the indicia in isolation. The officer testified that he wanted to give the defendant the benefit of the doubt before he formed his final opinion, but he used all of the factors in forming his opinion.

[28] I instruct myself that with regard to a warrantless search the onus is upon the prosecution to satisfy me on a balance of probabilities.

[29] I find that his opinion was properly subjectively held and there was sufficient objective information known to the officer to form the opinion. I believe that the test has been satisfied.

Conclusion

[30] I therefore find that the results of the analysis of the breath tests of the defendant are admissible into evidence and I find him guilty of the offence of Over 80 milligrams of alcohol in 100 millilitres of blood.

Impaired Driving

[31] Notwithstanding the fact that I have found the officer had reasonable and probable grounds to arrest for impaired driving, am I satisfied beyond a reasonable doubt that the Crown has proven a degree of impairment, however slight? In assessing that issue I must also consider the following additional factors:

• From the time of the arrest at the roadside there is no further evidence of any indicia of impairment.
• The redness of the defendant's face has another plausible explanation.
• The smell of alcohol, while denoting the presence of alcohol, does not assist with any level of impairment.
• Based on the defendant's evidence of what he had to drink, it could leave me with a reasonable doubt.

[32] Based on consideration of these additional factors, I am left with a reasonable doubt and I find the defendant not guilty of the offence of impaired driving.

Released: September 5, 2012

Signed: "Justice P.N. Bourque"