COURT FILE No.: Newmarket 11-07244

DATE: 2012·02·07

Citation: R. v. Tait, 2012 ONCJ 62

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

LEVI JAMES TAIT

Before Justice Peter N. Bourque

Reasons for Judgment released on February 7, 2012

R. DeChellis .............................................................................................................. for the Crown

M. Herman ..................................................................................... for the accused Levi James Tait

Bourque J.:

Overview

[1] The defendant is charged with impaired driving, driving with excess alcohol and dangerous driving as a result of driving near Sibbald Point Provincial Park. The defendant has filed a Charter challenge and asks that I exclude the evidence collected after the arrest and asserts that the police officer did not have "reasonable and probable" grounds to make the arrest and the demand for the breath sample.

Zafar Kazi

[2] Zafar Kazi is an O. P. P. officer of some 19 years experience. He was on extra duty at Sibbald Point Provincial Park during the holiday long weekend on Saturday, July 30, 2011.

[3] He was standing and speaking to another officer on Park Road when he says he heard "a loud acceleration of an engine and the squealing tires of a moving vehicle." The following is his recitation of the events as they transpired (I have put in italics where he makes reference to items not in his notes):

• 16:45 - heard the loud acceleration of an engine and the "squealing tires (not in his notes) of a moving vehicle" (he did put the squealing reference in his synopsis which he says was prepared about a week after the events.)

• The driver went west on Park Road - high rate of speed -believe speed is 50 (in his synopsis he has the speed limit at 60 km per hour) (nothing in his notes about speed limit - in cross-examination he indicated that parts of Park Road could be 70 km per hour) - on Park Road the officer estimated the defendant’s vehicle speed at 80 km per hour but did not clock the vehicle.

• Park Road is one lane each way, with a shoulder and has a solid white line (nothing in his notes)

• The driver passed a red Cavalier automobile.

• The vehicle came up to the stop sign at Hedge Road, stopped and made a left hand turn - the distance from where the officer first saw him to the stop sign at Hedge Road is approx 500 meters (Exhibit # 2 Google Map of area - shows the distance at 1.7 kilometres).

• Hedge Road is one lane each way with grass up to the edge of the pavement. It is a scenic road and is a 40 km per hour zone. There were people walking alongside the road - as the officer turned - he relates that people pointed towards the defendant automobile.

• The officer stated there was a solid line on this road. Exhibit #6 is a picture of the road and there is no line on the road.

• The defendant passed a motorcycle which maybe was going slower than the speed limit - and during the pass the motorcycle swerved in its lane. There is no evidence that the defendant passed too close to the motorcycle.

• The defendant stopped behind two cars which were waiting for traffic to clear a single lane bridge.

• The defendant drove across the bridge when it was clear.

• 16:50 on the other side of the bridge the officer put on his lights and the defendant vehicle stopped.

• The defendant took out his documents without difficulty.

• The car had six occupants, 4 in the rear (one person lying across 3 others sitting and one passenger and the defendant driver. The officer thought that all the passengers were intoxicated.

• The officer smelled alcohol coming from the breath of the defendant.

• The defendant got out of his car and the officer walked him back to his cruiser.

• The officer asked the defendant "why were you driving recklessly" and the defendant answered "I was only doing 80 km per hour at the most". The officer asked him how much he had to drink and the defendant stated he had approximately 3 drinks.

• 16:58 officer placed the defendant under arrest for impaired and dangerous driving - RTC and cautions and breath demand read.

[4] The officer testified that there was no traffic in the opposing lanes and either of the passing manoeuvres. The officer did not note any weaving of the vehicle and other than the passing manoeuvres there was no movement out of the lanes.

[5] The officer gave no evidence as to the walking of the defendant, noted nothing about any aspect of his motor skills, no reference to his eyes, face or speech.

[6] I am concerned that many aspects of the officer's evidence are not articulated in his notes. The officer sparred with defence counsel and asserted that his notes were only prepared for the purpose of "refreshing his memory". He actively disputed defence counsel's assertion that his notes should be a complete recitation of the evidence of the officer. With all respect to an experienced police officer, we are well past the days when an officer can make only the barest notes and then attend court some seven months after the events and recite from memory his evidence. I take the view that the police officer should put in his notes all notations which have some relevance to the guilt or innocence of the defendant. This is not a situation when there are obscure issues which the officer would not have been readily aware of at the time of the investigation. All of the Crown evidence (save the taking of the breath tests) which would impact on the innocence or guilt of the defendant comes from the observations of the officer. If the officer gives evidence, which seeks to add to the case against the defendant, and such facts are not in the officer’s contemporaneous notes, then I do not feel that I can place any weight on such evidence. I therefore discount references to “squealing tires”, the speed limits of the road and the lines on the road.

Charter Application

[7] I accept that the officer formed the subjective grounds to arrest the defendant for impaired driving (including the grounds to make the breath demand) and dangerous driving. As stated in case after case, this court must assess as to whether his subjective opinion is supported by objective evidence. As stated in the cases of R. v. Wang 2010 ONCA 435, [2010] O.J. NO. 2490 and R. v. Censoni [2001] O.J. No. 5189, reasonable grounds in the context of s. 254 (3) breath demand is not an onerous threshold. It must not be inflated to the context of testing trial evidence. Neither of course, is it so diluted as to threaten individual freedom. (R. v. Censoni, par. 43).

[8] I find that the officer had the following objective information:

• The defendant was exceeding the speed limit, but while he may have reached up to 80 km per hour while passing, at best this exceeds for short periods of time the speed limit by 10 and no more than 20 kilometres per hour.

• The defendant passed two vehicles but there was no objective actions by the defendant which would lead to the belief that the passing was not done in safety.

• The defendant admitted to consuming alcohol and there was a smell of alcohol on his breath.

[9] While the absence of other usual indicators of impairment need not dictate a lack of some objectivity (i.e. glassy eyes or flushed face), and there need not be an accident to show bad driving, there should be some objectively discernable indicators of some retardation, howsoever slight of some motor skills. Driving over the speed limit by the amount indicated and passing two vehicles (one admitted by the officer to be travelling below the speed limit) without something else, does not point inexorably to an indication of some impairment.

[10] The Crown asks me to infer from the officer's evidence that some people nearby were somehow pointing in the direction of the defendant's car, and that this is similar to a civilian report of driving actions, which are some indication of reduced motor skills. This evidence does not reach that level. It is just too equivocal to help support the officer's objective grounds.

[11] In my opinion, an objective review of the officer's grounds does not even meet the test as set out in Wang and Censoni. I therefore find that the officer did not have reasonable and probable grounds to make the breath demand.

Should the evidence of the results of the breath tests be excluded under section 24 (2)?

[12] Having found that the applicant's s. 8 Charter rights have been infringed, I must assess, pursuant to the test enumerated in R. v. Grant 2009 SCC 32, [2009] S.C.J. No. 32, the seriousness of the Charter infringing state conduct, the impact of the Charter breach on the protected interests of the accused and society's interest in the adjudication of the case on its merits.

[13] While the collection of breath samples is relatively non-intrusive, I believe that the Charter infringing conduct is serious. In our case the officer had a very less intrusive alternative, namely, the roadside screening device. The smell of alcohol would have given the officer sufficient grounds to make a demand and conduct a roadside test before the lengthy transport and period of arrest required for the breath demand. The protected interests of the defendant were seriously infringed.

[14] Drinking and driving offences are, by their nature, very serious. However there is nothing which takes this case into a more serious category, such as an accident, or some bodily harm.

[15] Weighing all of these factors, I am of the opinion that the evidence of the breath test results should be excluded.

[16] As a result the charge of driving with excess alcohol will be dismissed.

Impaired Driving

[17] The indices of impairment are noted above. As I have found that the officer did not have reasonable and probable grounds to make the breath demand, I feel that the evidence falls short of the test enumerated in R. v. Stellato. Here all the factors must be weighed with the lack of any evidence of reduced motor skills lead inexorably to the conclusion that I am not convinced beyond a reasonable doubt that the Crown has proven any level of impairment, however slight.

[18] The charge of impaired driving will be dismissed.

Dangerous Driving

[19] The test for a finding of dangerous driving is contained in the case of R. v Hundal.

It follows that a trier of fact may convict if satisfied beyond a reasonable doubt that viewed objectively, the accused was, in the words of the section, driving in a manner that was "dangerous to the public, having regard to all the circumstances, including the nature, condition and use of such place and the amount of traffic that at the time is or might reasonably be expected on such a place". In making the assessment, the trier of fact should be satisfied that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused situation.

[20] In addition to the factors enumerated above, the Crown relies upon the additional factors that there were persons nearby on the grass beside Hedge Road. He also points to the fact that the officer testified that the passengers in the car were not wearing their seatbelts. The defence points out that when the officer put on his lights the defendant stopped his car immediately. One of the passengers in the car testified (Dana Beattie) and stated he was wearing his seatbelt and was not charged. The witness identified a picture (Exhibit #6) showing the area of Hedge Road, which was a street of normal width and straight. The grass area is not a normal gravel shoulder but it is as wide as a shoulder.

[21] All in all, taking all of these factors into account in the circumstances, I do not feel that the driving of the defendant constituted a marked departure from the standard of care of a reasonable person.

[22] The defendant will be acquitted of the charge of dangerous driving.