Court File and Parties

Court File No.: Central East - Newmarket 13-01038

Date: 2014-03-18

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Terran Best

Before: Justice P.N. Bourque

Judgment

Released on March 18, 2014

Counsel:

• J. Costain, for the Crown
• R. Tsang, for Terran Best

BOURQUE J.:

Overview

[1] At approximately 1:29 a.m. on January 27, 2013, a York Regional Police Sergeant was sitting in his police cruiser on the west side of Yonge Street, awaiting the execution of a drug warrant nearby, when he saw the defendant's SUV drive north past him and then swerve across into the opposing lane. He followed and as a result of his further investigation, the defendant is facing charges of impaired driving and driving with excess alcohol.

Bryan Shea

[2] . . . is an officer with the York Regional Police Service with some 25 years' experience. He has been in investigations since 1997 and has been a sergeant for about 8 years. This is his first impaired driving investigation in about 8 years.

[3] After he saw the vehicle cross over to the other lane while going around an "S-bend", he did a U-turn and followed the SUV. He stated that very soon afterwards the SUV turned off his lights and continued for about 700 metres and then turned right onto Mount Albert Side Road. The vehicle then, about 50 meters down the road, pulled partway into a driveway, stopped, and then pulled the rest of the way into the drive. The officer pulled his vehicle up behind the SUV.

[4] In cross-examination he stated that he had his taser device in his hand when he came up to the vehicle. He stated it was because he was concerned as the defendant had taken steps to evade him (turning off his lights).

[5] He approached and knocked on the window and there was no answer but he heard some commotion inside the vehicle and he opened the door. He saw that the defendant was partway into the back of the vehicle between the two front seats. There was a male in the front passenger seat and two women in the back of the SUV.

[6] He smelled an odour of alcohol coming from the vehicle. He asked the defendant to get out of the vehicle, and at first the defendant continued to move to the rear but the officer told him to come out the front and he did so slowly. The officer thought this was an indication of reduced motor skills. The officer agreed that the defendant may have seen the taser and may have moved slower but he denied that he would have told the defendant to move slowly. As the defendant came out of the vehicle, he noticed that his eyes were watery. He could smell an odour of alcohol from the defendant.

[7] As there were 3 other persons still in the car, the sergeant radioed for assistance (for officer safety) and knew that police officers were nearby. He told the defendant that he was under arrest for impaired operation of a motor vehicle, and asked him to stand with his hands placed on the side of the SUV and they waited for officers to arrive. A police car came shortly and the arrest and search of the defendant was taken over first by Officer Seadon and then officer Chamberlain. The defendant was searched, placed in another officer's cruiser and taken to 1 District in Newmarket. The officer spoke to the breath technician at 2:11 a.m. and provided him with his grounds for arrest.

[8] In cross-examination, the officer was taken very particularly through his grounds for arrest. He stated that the initial swerving and the subsequent actions of turning off his lights and then turning into a driveway partway and then fully, were signs of impairment. He also stated that the slowness of his getting out of the vehicle, the smell of alcohol and the glassy eyes were also signs of impairment.

[9] The officer admitted that he did not slur his speech (although they spoke) and was not unsteady out of the vehicle. He stated he had reasonable and probable grounds to arrest for impaired driving.

[10] The officer stated that when he put him under arrest, he waited for another officer to arrive principally for the reason that, in his opinion, the defendant had taken steps to evade capture and for reasons of officer safety, he wished to focus on the defendant and the persons in the car without having to make the breath demand and the rights to counsel.

Todd Seadon

[11] . . . is a Constable with the York Regional Police Service and was assisting the drug squad in executing a search warrant at 1:18 a.m. at a house nearby. He stated that he heard a call for back-up and could see the emergency lights of the Sergeant's vehicle in the nearby street. He went to the scene and saw Sergeant Shea with a man against the vehicle with his hands up. He was informed by Sergeant Shea that the defendant was under arrest for impaired driving and he started to take the defendant to his cruiser when Officer Chamberlain arrived. He handed the defendant over to Chamberlain as he wished to return to his duties with the drug squad.

[12] He stated that from the time he heard the call and left the scene was a few seconds. He arrived at scene within a minute and was on the scene for another minute before leaving. He did not make the breath demand nor did he give the defendant rights to counsel in that time.

Travis Chamberlain

[13] . . . is a Constable with York Regional Police Service with some 2 years' experience. He heard a call for back-up at 01:33 and arrived on scene at 01:35 where he saw Sergeant Shea and Constable Seadon with a male in custody. He took custody of the defendant, got his identification and searched him. At that time, he noticed that the defendant was unsteady, swaying side-to-side, had flushed cheeks and glassy eyes and was stammering. He also had an odour of alcohol.

[14] While he was putting him into the cruiser, he had to hold onto him to stop him from falling. At 01:41 he provided him rights to counsel. At 01:42, he read a caution and at 01:43, he read the breath demand. He stated that he spoke to Sergeant Shea to get further grounds and then left the scene at 01:49, arriving at the police station at 01:58. He took the defendant into the booking room where he was booked by the duty sergeant.

[15] While it was not in his notes, he agreed that the booking was finished just past 02:12 (as shown in the booking video). He stated that he took the defendant to the cells and lodged him there. He returned to the booking area, and again as seen in the booking video, he is talking to Sergeant Shea and the booking sergeant from 02:20 to approximately 02:25. He then goes to call the duty counsel and does so as per his notes at 02:30. The duty counsel returns the call at 02:41 and the defendant is taken to the phone room where the call is finished at 02:52. The defendant is taken to the breath technician at 02:59.

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

[16] In R. v. Censoni, Justice Hill, stated:

[31] It has been repeated elsewhere that reasonable and probable grounds does not amount to proof beyond a reasonable doubt…

[35] In reviewing the objective component of reasonable grounds, the question is whether the officer's opinion was supported by objective facts:.....the existence of objective reasonable grounds must be based on facts known by or available to the peace officer at the time he or she formed the belief..."

[43] Reasonable grounds in the context of a 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. All too often, however, the defendant invites the trial court to engage in minute decisions of the officer's opinion - an opinion developed on the spot without the luxury of judicial reflection.

These comments were echoed at the Ontario Court of Appeal in R. v. Wang.

[17] In this situation the arresting officer (Sergeant Shea) had the following information:

(a) the defendant had driven his car across the center line;

(b) the defendant had turned off his lights when the officer began to follow him;

(c) the defendant turned his darkened car into a driveway;

(d) the defendant pulled partly into the drive and was partially on the road and stopped, and he then pulled all the way into the driveway;

(e) the defendant did not respond to the officer's obvious request to roll down his window (the knocking);

(f) the defendant was instead attempting to move into the back seat of the car and out of the driver's seat;

(g) the defendant had a smell of alcohol;

(h) the defendant's eyes were glassy;

(i) the defendant's movements in getting out of the car were slow.

[18] The defence argues that the officer did not consider other alternatives to many of these signs of impairment, namely that the decision to avoid the officer was just unwise, that the movement slowly out of the car may have been because the officer had a taser in his hand. While these could point away from impairment, I note that the officer is not required to inquire as to all possible alternatives for the indicia observed, before considering the circumstances as a whole.

[19] I also note that the absence of some of the traditional indicators of impairment such as slurred speech and bloodshot eyes, does not render the officer's subjective belief, based on what he did observe, objectively unreasonable.

[20] There is no necessity that the accused be in a state of "extreme intoxication" before a police officer will have reasonable and probably grounds to effect an arrest. Indeed, impairment may be established where the Crown proves "any degree of impairment from slight to great." Slight impairment to drive a motor vehicle relates to a reduced ability to perform a complex motor function, whether impacting upon perception of field of vision, reaction or response time, judgment and regard for the rules of the road…the police officer need only have objectively based reasonable and probable grounds to believe that the accused's ability to drive was "slightly impaired" by alcohol.

[21] The question to be decided by me is whether the officer's subjective belief that the defendant was impaired was supported by sufficient objective facts. In my opinion, it is supported. I believe that the item of bad driving by crossing the centre line coupled with the poor decisions by the defendant (attempting to evade the police officer by turning off his lights and then going into the driveway) can be used in coming to the officer's subjective belief that the actions of the defendant were as the result of some type of impairment.

[22] I note that the act of driving at night for any distance without your lights on is a clear violation of the rules of the road as contemplated in R. v. Bush. The smell of alcohol and glossy eyes and slow movement outside of the car were also indicators. Taken in their totality, they satisfy the test of objectivity. The defence has urged before me that I cannot accept the officer's assertion that the defendant moved slowly out of the vehicle because he somehow could not compare it to the "usual time it takes someone to get out of the car".

[23] I do not think that is the thrust of the officer's evidence. The perception of slower movement is a momentary impression, not the use of a stopwatch to time certain events. I also do not think that the fact that the officer had a taser in his hand would change this perception. Perhaps the defendant moved slower because he may have seen it. That is mere speculation as there was no evidence as to the defendant's perceptions (he did not testify). Sometimes the presence of such a device could, I suppose, speed someone up. Either way, it would be just speculation. I specifically find that the officer was being truthful in his testimony and he did not change his evidence in any appreciable way in his description of the movement of the defendant.

[24] I also note that I do not feel that the credibility of the officer is negatively impacted by the fact that he did not, in examination in-chief, say that he had a taser in hand when he went up to the car. As he did not use it on threaten to use it, I do not see how it affects his testimony.

[25] I find that the officer did have reasonable and probable grounds to arrest the defendant for impaired driving. There is no breach of the defendant's section 8 Charter rights.

Were the defendant's section 10(b) Charter rights breached?

[26] The timing of events from the arrest to the reading of the rights to counsel are as follows:

Time	Event
01:30	Sergeant Shea puts the defendant under arrest for impaired driving and informs him of this fact.
01:30 – 01:35	Constable Seadon gets word that Shea needs back up and after telling his superiors, goes the short distance to the scene and speaks to Shea and takes custody of the defendant. He has the defendant in custody for about a minute and then sees that Chamberlain has arrived and hands him to Chamberlain while he returns to his assigned duties.
01:35	Chamberlain arrives at the scene and speaks to Constables Seadon and Shea. Searches the defendant and puts him in handcuffs. He takes and reviews the identification of the defendant and placing him in to the cruiser. He runs the identification.
01:41	Chamberlain provides the defendant with his rights to counsel.
01:42	Chamberlain reads the caution to the defendant.
01:43	Chamberlain makes the breath demand.

[27] The total time from arrest (01:30) to the reading of the rights to counsel is between 10 and 11 minutes.

[28] The explanation for the delay (at least initially) was the officers stated concerns for officer safety. The defence urges upon me to ignore these concerns as not being real and thus making no allowance for it. Based upon the facts as known to the officer at the time, I cannot say that his concerns were unreasonable. He was dealing with a person who had made the choice to create the dangerous situation of turning off his lights while driving on a public street at night. When the officer tried to speak to the defendant at the roadside, the defendant actively tried to avoid him, by first not rolling down his window, and then when the officer had to open the door to engage the defendant, the defendant was trying to crawl into the back seat. There were three other people in the vehicle with darkly tinted windows. When the defendant finally came outside (after some prompting by the police officer), the officer while clearly making up his mind that he had grounds to arrest for impaired driving, he did not know what else he was dealing with. I agree that he could have mouthed some words about the defendant's right to counsel as he was standing there. I do accept, however, that he felt that in the circumstances he did not want to take his focus from the defendant and the persons in the car while he read the rights to counsel in the back of his notebook. The Charter provides that the defendant must be given the informational component of his 10(b) rights without delay.

[29] In these circumstances, I believe that the words of R. v. Suberu are applicable:

As with "detention", any interpretation of the phrase "without delay" must be consistent with a purposive understanding of the Charter provision in which it occurs. As this Court noted in R. v. Therens, [1985] 1 S.C.R. 613, at pp. 641-42, and in R. v. Bartle, [1994] 3 S.C.R. 173, the purpose of s. 10(b) is to ensure that individuals know of their right to counsel, and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy. Specifically, the right to counsel is meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination.

To allow for a delay between the outset of a detention and the engagement of the police duties under s. 10(b) creates an ill-defined and unworkable test of the application of the s. 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" mean "immediately" for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have 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.

[30] I therefore find that the officer was justified in putting off the provision of the rights to counsel until the situation was stable.

[31] A further delay was caused by the fact that the first officer on the scene, who was delegated to provide the rights to counsel and the breath demand, was replaced by another. I find that this happened within a moment or two, and did not appreciably add to the time delay. When Officer Chamberlain finally took over these duties, he was in a position that he had to get the grounds and perform the necessary search, handcuffing, and placing the defendant in the back of his cruiser. This was a several minute delay.

[32] However, the officer in my opinion proceeded diligently with his duties.

[33] The only real issue in my mind is whether the original arresting officer, Sergeant Shea, should have proceeded with the rights to counsel and breath demand when the other officers arrived. He did not need to brief himself, and could have simply proceeded to give the rights. At most, I think the delay would have been 3 or 4 minutes, not the 10 or 11 minutes it probably was. While it was not unusual for officers to delegate duties, including this one, the result that there was a delay to the provision of these rights.

[34] Taking all of these factors into account, I believe that the arresting officer should probably have then delegated the further security issues to the incoming officers and then quickly dealt with the rights to counsel himself. I agree that it was a decision made at the moment, and I certainly do not find that the officers were not attentive to their duties, and I do not find that there was any deliberate attempt to frustrate the Charter rights of the defendant. It is, I believe, something of a close run thing, but I do find that there was an unacceptable delay of some 5 to 6 minutes and this would constitute an infringement of the section 10(b) Charter rights of the defendant.

Should the breath test results be excluded from evidence as a result of the 10(b) breach?

[35] I have found that the delay of 5 to 6 minutes after the officers arrived constituted a breach of the informational section 10(b) Charter rights of the defendant. Pursuant to the analysis as provided for in R. v. Grant, should this lead to an exclusion of the breath result evidence?

[36] The first issue is to consider the seriousness of the Charter infringing conduct. I do not find it as especially serious. The officer was aware of the need to provide the rights but I have found that he should have seen to it himself (with a saving of 5 or 6 minutes of time) rather than delegate it to another officer. This was not a systematic matter but the reaction of the officer to the specific set of circumstances in which he found himself. I have found that the initial delay was justified, but once the issue was removed, the matter should have been dealt with right away. However, as I have said the matter was not forgotten. Officer Chamberlain got to the matter diligently and his actions are without fault.

[37] In assessing the impact upon the charter protected interests of the defendant I would find them to be minimal.

[38] As I stated, the officers were attentive to the need to provide the defendant his rights to counsel, the method of the investigation and the movement of officers led to it being delayed, not denied. The defendant ultimately availed himself of his rights to counsel before engaging in the breath tests. The taking of breath tests as stated in Grant is minimally intrusive. If the defendant's rights to counsel was delayed for a much longer period of time, this part of the analysis would produce a greater negative impact upon the defendant.

[39] Society clearly has an interest in dealing with this matter on the merits. Courts have found that breath test evidence is quite reliable and with regard to the offence of driving with excess alcohol, it is crucial to the Crown's case.

[40] Upon balance, I cannot say that the admission of the breath test evidence would have a negative impact upon the long-term repute of the justice system.

[41] I therefore will allow certificate of analysis to be marked as Exhibit Number 1 and will be accepted for the truth of its contents.

[42] Having admitted the breath test results, I am convinced beyond a reasonable doubt that the defendant operated a motor vehicle while his blood alcohol level was 160 milligrams of alcohol in 100 millilitres of blood.

Has the crown proven beyond a reasonable doubt that the defendant was impaired by alcohol?

[43] In addition to the signs of impairment noted by Sergeant Shea, Officer Chamberlain noted swaying while the defendant was handcuffed and needed to be helped into the cruiser. I accept this evidence, but I consider it in the light of the fact that no one else made any comments of unsteadiness on his feet. I also have some sympathy for someone trying to get into the rear seat of a police cruiser while his hands are handcuffed behind his back.

[44] Looking at all the evidence of impairment (and the evidence not showing signs of impairment) I feel that with regard to the test in R. v. Stellato, I am left with a reasonable doubt. The defendant will be found not guilty of the offence of impaired driving.

Signed: "Justice P.N. Bourque"

Released: March 18, 2014