Court Information

Ontario Court of Justice

Between: Her Majesty the Queen — and — Vladimir Strba

Before: Justice Borenstein

Heard: September 26, 2013

Reasons for Judgment Released: December 2, 2013

Counsel:

• Ms. L. Eplett for the Crown
• Mr. I Isenstein for the accused V. Strba

BORENSTEIN J.:

The Charges

[1] Vladimir Strba is charged with being in care or control of his vehicle while his ability to do so was impaired by alcohol and while he was "over 80".

Facts

[2] At approximately 10:15 p.m. on the date in question, P.C. Riegert and his partner P.C. Nelson were in their cruiser in Scarborough en route to a robbery call.

[3] While en route, he received a radio dispatch advising him that a pick-up truck had run through a red light and was just stopped in the middle of a live intersection at Kennedy and Lawrence with the driver possibly being sick or impaired.

[4] The officers were near that intersection and arrived almost immediately. There, they saw a pick-up truck. It had mounted a concrete median in the middle of an intersection. The tires straddled the median. The accused was in the driver's seat slumped forward over the steering wheel. The engine was running. The officers had approached from the rear of the truck with their cruiser's lights and siren activated yet, when they approached, the accused remained asleep or unresponsive slumped forward over the steering wheel. The pick-up truck was still in drive.

[5] The officer roused the accused awake. His eyes were somewhat red and watery and his face appeared flushed. He seemed confused at first not appearing to recognize that he was interacting with a police officer despite the circumstances including the fact that the officer was in uniform and the cruiser's lights were flashing. Reigert was not immediately sure what to make of the situation. He had Mr. Strba place the vehicle in park and exit the truck. When he did, he was unsteady. The officers feared that he would fall into live traffic. Accordingly, at 10:16 p.m., Reigert handcuffed Mr. Strba. Mr. Strba seemed groggy. He was taken to the cruiser. At that point, P.C. Reigert believed Strba was probably impaired by alcohol and, once Mr. Strba spoke, Reigert detected an odour of alcohol on his breath. At 10:20 p.m., five minutes after first arriving, Reigert formed the opinion that Strba's ability to operate a motor vehicle was impaired by alcohol and arrested him. While Reigert did not explicitly testify that he believed Strba was impaired by alcohol, circumstantially, that was obviously what he was referring to in his evidence, as evidenced primarily by the fact that it was when he detected the odour of alcohol, in addition to everything else, that his suspicion that he was impaired was elevated to his subjective belief that he was impaired and the arrest which followed. Reigert's partner looked in the pick-up truck and saw numerous empty bottles of alcohol and beer cans in the truck as well as a half empty can of beer.

[6] Between 10:20 p.m. and 10:25 p.m., the accused was arrested, read his right to counsel, cautioned and read a proper breath demand. He was asked if he wanted to call a lawyer and nodded. He was asked if he had a lawyer or wanted to speak to duty counsel but did not answer.

[7] The officers requested that another unit attend to secure Mr. Strba's truck so that Reigert and Nelson could take him to the police station. After arranging to secure the pick-up truck, the officers left for 41 Division at 10:46 p.m. having learned that a qualified breath technician was at the station. They arrived at the division three minutes later at 10:49. P.C. Reigert knew, or at a minimum, believed, that shift change occurs at 11:00 p.m. Accordingly, he waited for the new staff sergeant to come on duty before entering the station. He believed that was a faster way of dealing with Mr. Strba rather than entering just as the last staff sergeant was finishing. At 11:04, the accused entered the station and was paraded before the new staff sergeant.

[8] The accused was paraded and, at 11:12 p.m., he was placed on the bench in the breath room. There was already another subject in that room. That person was handcuffed to the bench which, according to PC Reigert, meant that that person would be taken to the breath room first. The only reason a detainee would be in that room is for the purpose of providing a breath sample. In cross-examination, the officer agreed that he did not physically observe what happened to that male when he was taken from the bench into the breath room.

[9] Mr. Strba had told the officer at the scene that he wanted to speak to counsel. He then did not reply when asked if he had a lawyer or wanted to speak to duty counsel. After being paraded, Mr. Strba said he did not want to speak to counsel. Nonetheless, Reigert left a message for duty counsel at 11:13 p.m.

[10] Duty counsel called back at 11:20 p.m. and, at 11:23 p.m., the accused spoke to duty counsel in private until 11:25 p.m.

[11] According to Reigert, the other detainee was in the breath room although he conceded in cross-examination, that he (Reigert) had no direct knowledge of what the person was doing. He did testify that persons in that room were there for breath tests. P.C. Gros, the breath technician, did not have reliable notes or a recollection as to the time he performed the test on the other detainee.

[12] At 11:32 p.m., the accused was brought into the breath room and, at 11:44 p.m., he provided his first suitable sample into the approved instrument that was properly operated by a qualified breath technician. The breath technician testified and the certificate was introduced in evidence. The actual reading obtained was 158 milligrams of alcohol per 100 millilitres of blood. The second breath test was administered at 12:09 a.m. and resulted in a breath reading of 155 mg. of alcohol in 100 millilitres of blood. Both samples were truncated on the certificate to 150 milligrams of alcohol in 100 millilitres of blood.

[13] While both arresting officers were of the opinion that the accused's ability to operate a motor vehicle was impaired by alcohol, the breath tech was not.

[14] That in essence was the case. I heard from the two arresting officers and the breath technician. No defence was called.

Legal Issues

[15] The defence has raised a Charter argument arguing that Reigert did not have reasonable and probable grounds to believe that the accused's ability was impaired by alcohol when he arrested him at roadside. If I agree, he submits the breath readings should be excluded pursuant to section 24(2) of the Charter.

[16] He also submits that, in relation to the over 80 charge, the breath tests were not taken as soon as practicable, as must be established by the Crown beyond a reasonable doubt.

[17] Specifically, the defence submits that there is no admissible evidence to explain the delay while waiting at the sallyport between 10:49 and 11:04 that being the time between the arrival at the station and the parading of the accused. More particularly, the defence submits that it was hearsay that there may have been a shift change.

[18] Secondly, the defence submits that there was an unnecessary delay occasioned by P.C. Reigert calling duty counsel when the accused said he did not want to speak to counsel. Finally, the defence submits there is not direct, admissible evidence explaining the delay occasioned by the other detainee in the breath room.

[19] As for the impaired, the defence submits that I should have a doubt about that count, particularly in light of the breath technician's evidence and what he characterizes as equivocal evidence at roadside, namely, that the accused merely fell asleep.

[20] The Crown submits that there were ample grounds for the arrest and breath demand. That any small delays were reasonable and that the impaired counsel was established beyond a reasonable doubt.

Analysis

The Impaired Charge

[21] Turning first to the impaired charge, based on the evidence of the breath technician, I have a doubt about whether the accused's ability to operate a motor vehicle was impaired by alcohol.

[22] The test is that even a slight impairment by alcohol in one's ability to operate a motor vehicle, if proved beyond a reasonable doubt, is sufficient to establish guilt.

[23] In this case, there is great deal of evidence to make out the Crown's case on the impaired count. The fact that the accused's vehicle mounted the median in the middle of a busy, live intersection and that the accused was essentially passed out slumped over the wheel, with the car running and the transmission in drive, without any other explanation, is extremely probative of guilt. That, coupled with the fact that he did not rouse when the police pulled up behind him with the lights and siren activated, that he was not easily roused, the odour of alcohol coming from his breath, his eyes being bloodshot and watery not to mention the open alcohol in the car. All of that evidence is compelling evidence of guilt. However, the breathalyzer technician who dealt with the accused was also watching him carefully was of the opinion that his ability was not impaired. While it is true that he did not consider the other factors at the scene that I just mentioned, he was nonetheless looking at the accused specifically in relation to drinking and driving and formed the opinion that he did not.

[24] In all the circumstances, that evidence raises a doubt in my mind on that count.

The Over 80 Charge

Reasonable and Probable Grounds

[25] With respect to the over 80 count however, I am of the view that there were reasonable grounds to issue the breath demand and the Crown has proved beyond a reasonable doubt that the tests were taken as soon as practicable.

[26] There were both subjective and objective reasonable and probable grounds to believe that Mr. Strba's ability to operate his vehicle was impaired by alcohol.

[27] First, I accept that Officer Reigert subjectively believed that to be the case when he arrested him.

[28] That belief was objectively reasonable as well.

[29] As stated in 2010 by the Ontario Court of Appeal in R. v. Bush at paragraphs 54-56:

Whether reasonable and probable grounds exist is a fact-based exercise dependent upon all the circumstances of the case. The totality of the circumstances must be considered: citations omitted. That an accident occurred, including the circumstances under which it occurred and the possible effects of it, must be taken into account by the officer along with the other evidence in determining whether there are reasonable and probable grounds to arrest for impaired driving. Consumption plus an unexplained accident may generate reasonable and probable grounds although that may not always be the case: Rhyason, supra at para. 19.

[55] In assessing whether reasonable and probable grounds existed, trial judges are often improperly asked to engage in a dissection of the officer's grounds looking at each in isolation, opinions that were developed at the scene "without the luxury of judicial reflection": citation omitted. However, it is neither necessary nor desirable to conduct an impaired driving trial as a threshold exercise in determining whether the officer's belief was reasonable: citation omitted.

[56] An assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of an impaired driver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are present and which are absent as the essential test. There is no mathematical formula with a certain number of indicia being required before reasonable and probable grounds objectively existed; Censoni at para. 46. The absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding of reasonable and probable grounds based on the observed indicia and available information: citations omitted.

[30] In the case at bar, the police having received a radio call about this truck, found it mounted on a curb with its engine running. Mr. Strba was slumped over the wheel, passed out, sleeping, unconscious or unresponsive in some fashion. The vehicle was in drive. He was unaware that the police were behind him when they arrived with their siren and lights activated. This, despite the circumstances of his being in the middle of an intersection. His eyes were red and watery. He was groggy. He had an odour of alcohol on his breath. He was unsteady somewhat. While it is possible that there might be alternative explanations for some of this indicia, that does not change the fact that, on the totality of the circumstances, there were objectively grounds to believe that his ability to drive was impaired, overwhelmingly so in my opinion. There was no breach of the Charter.

As Soon as Practicable

[31] To summarize the relevant events:

• 10:15 – the officer received the dispatch and were on scene.
• 10:16 – the accused was placed in handcuffs due to a concern that he may stumble into traffic.

[32] Between 10:20 to 10:25 the officer formed his reasonable grounds, arrested the accused, read him his right to counsel to which the accused nodded in response to whether he wanted to call a lawyer, caution given, breath demand made and call for other officers to attend to secure the pick-up truck.

• 10:46 – depart to 41 Division where there was a qualified breath technician
• 10:49 – arrived at 41 Division, awaited the 11:00 p.m. shift change before entering for parade
• 11:04 – paraded in front of staff sergeant who just came on duty
• 11:12 – finished parade, taken to breath room where another prisoner already there
• Counsel declined at this point. Waiting for breath test to be performed
• 11:13 – officer placed call to duty counsel
• 11:20 – duty counsel returned call
• 11:23 – accused spoke to duty counsel in private
• 11:28 – accused returned to breath room but other prisoner with breath technician
• 11:44 – first breath test provided
• 12:09 – second breath test completed

[33] The defence submits that the decision to wait at the sallyport for shift change caused unnecessary delay between 10:49 p.m. when they arrived and 11:04 a.m. when Mr. Strba was paraded. The defence further submits that there was unnecessary and unreasonable delay caused by Reigert calling duty counsel at 11:13 when Strba declined counsel. Further, the defence submits that there is only hearsay as to what was occurring in the breath room with the other prisoner. Any or all of these delays individually or in combination caused unjustifiably delay in the taking of the breath tests. In other words, the defence submits that the tests were not taken as soon as practicable.

[34] The Criminal Code requires the Crown to prove beyond a reasonable doubt that breath samples were taken as soon as practicable if it intends to rely on the presumption contain in section 258. The Code does not require that the tests be taken as soon as possible. They must be taken as soon as practicable.

[35] That requires a consideration of the overall length of time between the arrest and the breath tests and what was occurring during that time. The taking of the breath test must be done within a reasonably prompt time frame in all the circumstances. The issue is whether the police acted expeditiously and reasonably in the circumstances. The Crown need not account for every minute before the presumption can be relied upon. The Code permits reliance on the presumption (assuming all other preconditions have been met) even where the first breath test is taken up to two hours after the alleged offence: see R. v. Vanderbruggen (2006), 206 C.C.C. (3d) 489 (Ont. C.A.); R v. Burbidge (2008) O.J. 765 (O.C.A.).

[36] In this case, the officers acted reasonably and without delay throughout. The decision to wait for shift change and to call duty counsel were reasonable and did not cause significant delay.

[37] The decision to wait until 11:00 p.m. for shift change was reasonable and was based on the officer's experience that that would be a more efficient way of dealing with matters. As it turns out, the accused was paraded at 11:04. The fact of shift change is not hearsay. It was the reason for the officer's decision. Even if the officer was mistaken, it was reasonable and did not occasion any significant delay, on its own or in the context of everything that occurred.

[38] Likewise, calling counsel at 11:13 was reasonable given the contradictory answers given by the accused. He first indicated he wished to speak to counsel. He was silent when asked if he had his own counsel or wanted duty counsel. Later he said he did not wish to call counsel. Given those contradictions, and the accused's apparent intoxication at roadside, it was reasonable for the officer to call duty counsel and give the accused the opportunity to speak to counsel should he so choose. Which he did.

[39] In any event, the calling of counsel, even if unnecessary, did not cause any significant delay. The accused was brought into the breath room at 11:12 p.m. Another prisoner was already on the bench first in line to conduct his breath tests. The call placed to duty counsel at 11:13 was completed by 11:28, well before the accused was brought in for his first test at 11:44. It is speculative on the evidence for me to find that, had the call not been placed to duty counsel, the accused would have been brought in for his first test sometime after that other prisoner and before 11:44. Even if that were the case, I do not consider that delay, in the context of the time frame between the accused's arrest and the breath tests, to be legally significant. The argument that there is no admissible evidence as to what was occurring in the breath room is rejected. Circumstantially, it is clear that that other person was in the breath room dealing with the breath technician.

[40] The breath tests were taken as soon as practicable. The presumption applies.

Verdict

[41] Accordingly, the accused will be found guilty of the "over 80" count and not guilty of the impaired count.

Released: December 2, 2013

Signed: "Justice Borenstein"