Court File and Parties

Court File No.: Toronto - 4813-998-10-323585

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Jason Groves

Before: Justice A. Hall

Heard on: May 3 and July 25, 2012

Ruling on Charter Application released

Reasons for Judgment released: November 8, 2012

Counsel:

Joseph Hanna, for the Crown

John Collins, for the Accused

Judgment

Hall, J.:

Background

[1] This is an application brought by the accused, Jason Groves (hereafter the defendant) alleging violation of his rights under sections 8, 9, 10(a) and 10(b) of the Charter. The defendant seeks to have the evidence, as a result of the alleged violations, excluded pursuant to Section 24(2) of the Charter of Rights and Freedoms from the trial.

[2] The defendant argues as well that the breath samples should not be admissible as they were not taken as soon practicable pursuant to s. 258(1)(c) of the Criminal Code.

[3] The trial and the application were heard together in a blended hearing.

[4] The defendant is charged that on the 9th day of May 2010 that while his ability to operate a motor vehicle was impaired by alcohol, he had care or control of a motor vehicle.

[5] He is further charged on the 9th day of May 2010 that he had care or control of a motor vehicle having consumed alcohol; he had a concentration of alcohol in his blood, which exceeded the legal limit of 80 milligrams of alcohol in 100 millilitres of blood.

Facts

[6] Summarized as follows: Sergeant Singh is a man with twenty-two years of service with Toronto Police. On May 9th, 2010, he was assigned as a uniformed traffic officer from 43 Division working the midnight shift.

[7] His main responsibilities that night were the enforcement of the Ontario Highway Traffic Act, to investigate motor vehicle collisions and to enforce the Criminal Code particularly as it relates to motorists drinking alcohol and driving.

[8] Shortly after 2:00 a.m. that morning Sergeant Singh was in the area of Eglinton Avenue and Danforth Road, Toronto, Ontario.

[9] In this area there are a number of establishments licensed to sell alcohol.

[10] At about 2:44 a.m. Sergeant Singh entered the parking lot east of Caddy's, an adult entertainment bar located on the south side of Eglinton Avenue East.

[11] He observed a four-door Cadillac motor vehicle parked with two people in the front seat; one in the driver seat and the other in the passenger seat, as well as another person in the back seat.

[12] Sergeant Singh noticed that the vehicle's parking lights were on and the engine exhaust was visible.

[13] Sergeant Singh spoke to the male in the driver's seat and asked where he was coming from.

[14] The male responded from 'Caddy's Bar'. When asked about alcohol consumption he replied that he had two beers. This male was the defendant.

[15] Sergeant Singh exited his police vehicle and asked the defendant to exit his vehicle and to produce his driver's license.

[16] The defendant indicated to Sergeant Singh he was not driving the vehicle.

[17] He produced the license when Sergeant Singh made a second request for the license.

[18] At this stage of the interaction between the two men, Sergeant Singh detected a strong odor of alcoholic beverage coming from the defendant's breath.

[19] Sergeant Singh observed what he thought to be an additional driver's license and a health card in the defendant's wallet. He requested that he see the license and the health card. The defendant refused to provide any additional identification.

[20] According to Sergeant Singh, while outside the vehicle, the defendant got angry and became loud and started yelling and swore. During this period Sergeant Singh notes that the defendant's eyes were red and glassy and that his speech was slurred.

[21] Sergeant Singh instructed the defendant to turn off the engine and give him the keys to the vehicle. The defendant turned the engine off but placed the keys on the front passenger floor of the Cadillac, and continued to say that he was not driving.

[22] After about four minutes of direct and immediate observations, Sergeant Singh came to the belief that the defendant's ability to have care or control of a motor vehicle was impaired by alcohol.

[23] From Sergeant Singh's testimony he specifically told the defendant during the arrest process that he was going to be charged for impaired care or control of a motor vehicle. The defendant attempted to resist by refusing to put his hands behind and by pulling his hands away and keeping them in front of his body.

[24] Due to the trouble that Sergeant Singh was having with the defendant in executing the arrest, he pulled out his canister of pepper spray and showed it to the defendant, in an attempt to make him compliant and allow himself to be handcuffed.

[25] Sergeant Singh had safety concerns particularly in relation to the presence of two other men on the scene. At one point, one of the other men walked toward Sergeant Singh (his purpose is unknown to me), in response Sergeant Singh pulled out his collapsible baton and instructed the male to back up and he did.

[26] Sergeant Singh called the dispatcher for back up. Before the police back up arrived, he wanted to put himself and the defendant in a position where he could feel safe and be seen by his police colleagues.

[27] To accomplish this objective Sergeant Singh wanted the defendant to sit down so that he could exercise greater control over the defendant and put himself in a more defendable position should it become necessary.

[28] The defendant refused and Sergeant Singh used his foot and pressed against the back of the defendant's leg, causing the defendant to fall to the ground.

[29] Other officers from 43 Division arrived on the scene and the defendant was placed in the rear of Sergeant Singh's police vehicle.

[30] The defendant's identification was confirmed and his vehicle was secured and left on the scene because he did not want it to be towed.

[31] The evidence is that the defendant was advised of his rights to counsel and this was read from the back of Sergeant Singh's memo book, to which the defendant did not acknowledge or respond if he understood or not.

[32] The approved instrument demand was made to the defendant; this was read from the memo book as well.

[33] Sergeant Singh informed the police dispatcher that he had the defendant in custody and wanted to know the location of the nearest test facility for providing samples of breath into an approved instrument.

[34] The response was to take the defendant to 32 Division in Scarborough, in the city of Toronto.

[35] During the trip to 32 Division Sergeant Singh made another attempt, this time from memory, to advise the defendant of his rights to counsel. But the defendant would not listen; instead he said he was not driving. He spoke in a loud and angry tone.

[36] The defendant was processed and paraded at 32 Division before Sergeant Dizon and provided an opportunity to speak with his lawyer: Mr. John Collins, which he did.

[37] After that the defendant provided two breath samples; the first reading 202 and the second 182 milligrams of alcohol per 100 millilitres of blood.

Issues

1. Whether or not the breath samples were taken as soon as practicable pursuant to Section 258(1)(c) of the Criminal Code?

2. Whether or not the defendant was the subject of arbitrary detention infringing on his rights pursuant to Section 9 of the Charter?

3. Whether or not Sergeant Singh advised the defendant of the reason for his detention and arrest pursuant to Section 10(a) of the Charter?

4. Whether or not the defendant, once arrested, was provided with his rights to counsel immediately pursuant to Section 10(b) of the Charter?

5. Whether or not Sergeant Singh had reasonable and probable grounds to believe the defendant was in care or control of a motor vehicle while his ability to operate the vehicle was impaired by alcohol. And, as such, were the samples of his breath, which were taken, an infringement of his rights pursuant to Section 8 of the Charter?

As Soon as Practicable

[38] The Defence argues that the breath samples should not be admissible, as they were not taken as soon as practicable. Primarily because:

a) the Sergeant took extraordinary, unnecessary and bizarre measures,

b) by calling for back-up,

c) by taking him to a location on the street for security purposes while waiting for the other officers to arrive,

d) that these acts interfered with the taking of the breath tests as soon as practicable.

[39] The Crown takes the view that the samples were taken as soon as practicable and the measures taken by Sergeant Singh were justifiable because of the legitimate security concerns that the Sergeant had at the time.

[40] The tests were in fact taken within the prescribed time frame required by law. The Crown asserts that there was no unreasonable delay and there is no issue as to the question of the tests taken as soon as practicable. The test was taken well within the two hours as is statutorily required.

[41] The sequence of events as described by Sergeant Singh:

• The defendant was arrested at 2:48 am
• The defendant was handcuffed at 2:50 am
• Back up arrived at 2:55 am
• Right to Counsel given at 2:55 am
• The defendant was placed in the scout police vehicle at 2:55 am
• Call made by Sergeant Singh to dispatch in order to determine location of where breath sample can be taken at 2:58 am
• Dispatch advised to attend 32 Division for the breath test at 3:07 am
• Arrived at the sally port at 32 Division at 3:25 am
• Permitted into building: 3:35 am
• Booking process, parading in front of booking Sergeant at 32 Division at 3:36-3:54 am
• Much of the time had to do with the fact that the defendant was argumentative, protesting the reason for his arrest.
• The defendant was taken to Reporting Room at 3:54 am
• Sergeant Singh worked on paper work related to the arrest at 3:54-4:04 am
• Sergeant Singh made three phone calls to numbers to contact Defence counsel; Mr. John Collins at 4:04 am. Conversations lasted 5-7 minutes.
• Entered Breath room at 4:10 am
• First Breath sample was taken at 4:19 am
• Second Breath sample was taken at 4:44 am
• The first breath sample was conducted at 4:19. The arrest at 2:48 am - 2:50 am. All of this was completed within two hours as is statutorily required.

[42] The case law is clear that as 'soon as practicable' does not mean as soon as possible. As noted in R. v. Vanderbruggen, O.J. No. 1138 at paragraph 12 (C.A.), "The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably." The evidence provided by Sergeant Singh, as to his actions during this period in question, were reasonable in the circumstances. There was no unexplained delay from the point of arrest to when the first breath sample was taken.

[43] I make a finding that the breath samples were taken as soon as practicable.

Whether or Not the Defendant Was the Subject of Arbitrary Detention Infringing on His Right Pursuant to Section 9 of the Charter

[44] The Defence argues that Sergeant Singh detained the defendant without lawful grounds and that his detention was arbitrary and breached his right under Section 9 of the Charter.

[45] The Defence animated the argument by suggesting that, because Sergeant Singh entered the parking lot in a way that may have blocked the defendant's vehicle from leaving, therefore suggesting that Sergeant Singh was engaging in a fishing exhibition.

[46] The Crown submits that Sergeant Singh is authorized by law to conduct routine checks for sobriety of drivers. In this particular case the defendant was parked in an area where there were licensed establishments to sell alcohol.

[47] Furthermore when he was placed under arrest Sergeant Singh had reasonable and probable grounds to believe that the defendant was in care or control of a motor vehicle while impaired by alcohol.

[48] Sergeant Singh is authorized by law to conduct sobriety checks see R. v. Ladouceur, 77 C.R. (3d) 110, 56 C.C.C. (3d) 22 (S.C.C.) and the Ontario Highway Traffic Act.

[49] Therefore, in my view Sergeant Singh was acting, on the date in question, within his legal authority to enforce the Ontario Highway Traffic Act and to check for sobriety as is authorized by R. v. Ladouceur.

[50] The defendant was not arbitrarily detained. There was no infringement of Section 9 Charter right.

Whether or Not Sergeant Singh Advised the Defendant of the Reason for His Detention and Arrest Pursuant to Section 10(a) of the Charter

[51] The Defence submits that the defendant's right under section 10 of the Charter were breached. Counsel submits that the defendant was never advised or informed as to the reason for the detention and arrest in language that he could understand.

[52] From Sergeant Singh's evidence, the defendant was asserting that he was never driving the vehicle and this indicates, according to the Defence, that he wasn't properly advised, nor understood the reason for the detention.

[53] The Crown takes the opposite view. The Crown submits that Sergeant Singh complied with Section 10(a) of the Charter when Sergeant Singh advised the defendant that he was being charged with the offense of impaired care or control, thus complying with the Charter requirements.

[54] When considering whether there was a breach of Section 10(a) of the Charter, it is "the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, which must govern." See R. v. Evans, 1 S.C.R. 869. "The right to be promptly advised of the reason for one's detention fundamentally rests in the notion that one is not obligated to submit to an arrest or detention if one does not know the reason for it, and secondarily, in aid of deciding how to exercise the right to counsel under Section 10(b)." See R. v. Evans. "The question is whether what the accused was told, was viewed reasonable in all the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline to submit to arrest, or alternatively, to undermine the right to counsel under Section 10(b)." See R. v. Evans.

[55] In R. v. Kumarasamy, 2011 ONSC 1385, Justice Dambrot, noted:

the Court stated that s. 10(a) is complied with when the person arrested or detained is informed "in substance….as to the reason why the restraint is being imposed"…."unless the circumstances are such that he or she knows why."

[56] Given the questions that Sergeant Singh asked the defendant about alcohol consumption and what the defendant was told about the reason for the arrest. I find it was reasonable, in the circumstances; and that it would permit the defendant to understand the reason for the arrest.

[57] The only evidence on this point is, that of Sergeant Singh, which clearly states he advised and provided the defendant the reason for the arrest. There is no other evidence before me on this point. In these circumstances the defendant has no basis to resist being arrested.

[58] Given the absence of any other evidence, to the contrary, the Defence has failed to satisfy me, that the defendant's right under Section 10(a) of the Charter was breached.

[59] I find that the defendant's right Section 10(a) Charter right had not been breached.

Whether or Not the Defendant, Once Arrested, Was Provided with His Right to Counsel as Pursuant to 10(b) of the Charter

[60] The Defence submits that the defendant's right to counsel was breached (pursuant to the Charter Section 10(b)) because Sergeant Singh, immediately upon arrest, did not advise the defendant to the right to obtain and instruct counsel.

[61] Defence further submits that Sergeant Singh engaged unnecessary and extraordinary investigative techniques.

[62] There were no real safety concerns because neither of the other two individuals that were in the vehicle interfered with the arrest process or threatened Sergeant Singh.

[63] Whatever safety concerns Sergeant Singh cited in his testimony were merely speculative.

[64] There is no acceptable explanation in not giving the defendant his 'right to counsel'. Calling for back-up and placing the defendant on the ground so Sergeant Singh had command and control of the situation is 'bizarre'.

[65] On the other hand, the Crown submits that the delay in giving the defendant right to counsel is justifiable under the circumstances because Sergeant Singh was concerned about his own safety.

[66] The Crown further submits that the reasons for the delay: the defendant was a belligerent drunk, uncooperative and resisted being handcuffed.

[67] Sergeant Singh had legitimate concerns to the extent where he deployed his extended baton and directed the two other men not to come any closer to him. He had to show the defendant his canister of pepper spray to get him under control.

[68] Furthermore, the Crown submits that was only a mere 7 minute's delay; that is justifiable in overall circumstances.

[69] There is no doubt the defendant 10(b) Charter right must be given immediately on detention or arrest and any delay must be justifiable in the circumstances. The law in relation to 'right to counsel' and the meaning of 'without delay' is clearly articulated in R. v. Subaru, 2009 SCC 33, 2 S.C.R. 460:

To allow for a delay between the outset of a detention and engagement of the police duties under Section 10(b) creates an ill-defined and unworkable test of the application of the Section 10(b) right. The right to counsel requires a stable and predictable definition. What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding. An ill-defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police.

In our view, the words "without delay" means "immediately" for the purposes of Section 10(b). Subject to the concerns for officers or public safety and such limitations as prescribed by law and justified under Section 1 of the Charter, the police has a duty to inform a detainee of his or her right to retain and instruct counsel and a duty to facilitate that right immediately upon detention.

[70] Given the security concerns raised by the testimony of Sergeant Singh, as well as the behavior of the defendant on being handcuffed i.e. swearing and being belligerent, I find that Sergeant Singh's safety concerns were legitimate.

[71] I agree that the rights to counsel should be given immediately but the delay of 7 minutes in giving the defendant his' right to counsel' until he was secure in the back of the police vehicle is justifiable in the circumstances.

[72] I conclude in these circumstances that there is no breach to Section 10(b) of the Charter.

Were the Samples of the Defendant's Breath That Were Taken an Infringement of His Rights Pursuant to Section 8 of the Charter?

[73] The Defence submits that:

a) Sergeant Singh did not have reasonable and probable grounds for the arrest and to make the section 253(3) C.C.C. breath demand from the defendant. Therefore Sergeant Singh's actions following the arrest and breath demand were unreasonable search and seizure breaching the defendant Section 8 Charter right.

b) The only evidence available to Sergeant Singh is that which allows him legally to make a demand for a roadside breath test, given his suspicion that the defendant had alcohol in his body.

c) No notation in Sergeant Singh note book that the defendant was yelling and screaming at him.

d) Slurred speech, blood shot eyes are consistent with other conditions including fatigue. The defendant's speech pattern is foreign to Sergeant Singh because he was not previously acquainted with him.

e) Essentially there is not sufficient evidence to establish proof beyond a reasonable doubt that the defendant's ability was impaired by alcohol while he had care or control of his motor vehicle on the date of the alleged offence.

[74] The Crown submits the breath samples, seized from the defendant were properly authorized by 254(3) of the Criminal Code. Given that Sergeant Singh had the requisite reasonable probable to make the demand for the breath samples.

[75] Further, the Crown submits given the factors such as: yelling and swearing loudly, arguing and being belligerent, slurred speech, red and glassy eyes, saying he was not driving, (Sergeant Singh views these comments as meaning that the defendant recognized he was intoxicated but was not driving the motor vehicle). The defendant admitted he was coming from a liquor establishment and did not produce further identification. These factors led the Sergeant to form the opinion that the defendant ability to have care and control of the motor vehicle was impaired by alcohol.

The Applicable Law on Reasonable and Probable Grounds

[76] The law concerning this issue is set out in R. v. Bush, 2010 ONCA 554, O.J. No. 3453 (O.C.A.). Among other principles, the following were expressed in that decision:

Drinking and driving prosecutions involve a continuum of findings, beginning with a reasonable suspicion that the driver has alcohol in his or her body, the standard for an Approved Screening Device (roadside) demand pursuant to s.254(2) of the Criminal Code. At the other end of the continuum, is the standard for conviction, proof beyond a reasonable doubt that the operator's ability to operate a motor vehicle was impaired by the consumption of alcohol or that the drivers blood alcohol concentration was over the legal limit.

[77] Between suspicion and proof beyond reasonable doubt lie reasonable and probable grounds. Section 254(3) of the Criminal Code authorizes peace officers to believe that a person is committing or at any time within the preceding three hours has committed the offence of impaired operation or driving "over 80". (emphasis added) Reasonable and probable grounds do not amount to proof beyond a reasonable doubt or to a prima facie case: see Censori at para. 31 and R. v. Shepherd, 2009 SCC 35 at para. 23.

[78] Reasonable and probable grounds have both a subjective and an objective component. The subjective component requires the officer to have an honest belief the suspect committed the offence: R. v. Bernshaw, 1 S.C.R. 254 at para. 51. The officer's check must be supported by objective acts: R. v. Berlinski, O.J. No. 377 (C.A.) at para. 3. The objective component is satisfied when a reasonable person place in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest: R. v. Storrey, 1990 1. S.C.R. 241 at p. 250.

[79] In the context of a breath demand, the reasonable and probable grounds standard is not an onerous test: see R. v. Wang, 2010 ONCA 435 at para. 17. It must not be inflated to the context of testing trial evidence. Neither must it be so diluted as to threaten individual freedom: Censori at para. 43.

[80] The legal test is to determine whether or not objectively there were reasonable and probable grounds to believe that the defendant' ability to have care or control of the motor vehicle was even slightly impaired by the consumption of alcohol. See R. v. Bush.

[81] I am reminded as well that I must not dissect each ground in isolation that Sergeant Singh observed at the scene but rather review the totality of the circumstances that Sergeant Singh encountered on the date of the arrest and determine if his opinion was reasonable See R. v. Bush.

[82] It is important to note that the test is not an onerous endeavor to establish reasonable grounds for a sample demand or reasonable and probable grounds for an arrest is materially less onerous than to establish guilt for the offence of impaired care or control.

[83] When reasonable and probable grounds are found to exist objectively, there is no requirement for a road sample to be taken. And therefore a police officer would be legally entitled to move directly to an intoxilyzer breath sample demand. If the officer's belief failed to meet the requisite standard, there was an s8 charter violation see Bush.

[84] The Defence, during the trial and submissions, pointed to the fact that Sergeant Singh did not make a note in his police issued notebook that the defendant was yelling and screaming at him during the investigation and arrest. This is clearly the case but this does not mean it never happened. I therefore have no basis to discount this evidence, particularly when I have no evidence to the contrary.

[85] I find, given the observations Sergeant Singh made of the indicia of impairment, exhibited by the defendant, established that there were reasonable and probable grounds to believe his abilities were impaired by alcohol. Therefore, Sergeant Singh was justified and had the legal authority to make the demand for the intoxilyzer breath samples.

[86] There are reasonable and probable grounds for Sergeant Singh to have made the demand for the breath sample. However, I am of the view this reasonable and probable grounds do not meet the criminal standard of proof beyond a reasonable doubt. For that reason I dismiss the count of impaired care and control.

[87] Given my finding that Sergeant Singh had the reasonable and probable grounds for the arrest and to make the demand, my conclusion is that the defendant Section 8 Charter right was not breached. The evidence of the intoxilyzer reading will not be excluded and the Crown is not precluded from relying on the presumption in Section 258 in the Criminal Code.

[88] In spite of the able submissions and presentation by counsel for the defendant; Mr. John Collins, I find the defendant, Jason Groves, guilty on the over 80 charge.

[89] I have come to the conclusion that the defendant' Charter rights were not breached therefore there will be no need for me to conduct the Section 24(2) Charter analysis.

Released: November 8, 2012

Signed: "Justice A. Hall"