R. v. Nivet

Court File No.: Toronto Region Ontario Court of Justice

Between: Her Majesty the Queen

T. Edwards, for the Crown

— And —

Daniel Nivet

H. Spence, for the accused

Heard: January 7, 24, April 22, 2014

FELDMAN J.:

Introduction

[1] Daniel Nivet entered not guilty pleas to Impaired Care or Control and Care or Control Over 80. It is alleged that following a civilian complaint, the accused, investigated while sitting in the driver's seat of his parked motor vehicle, exhibited indicia of impairment warranting arrest for these offences.

[2] Ms. Spence, for the accused, submits that there was no objective basis to the reasonable and probable grounds [hereinafter RPG] relied on by the officer for the arrest and that, as a result, the breath readings, which were over the legal limit, should be excluded. As well, counsel submits that the toxicology report, extrapolating the readings back to the time of driving, cannot be relied upon because the Crown has failed on the evidence to negate the possibility of bolus drinking, one of the pre-requisite assumptions permitting the report's admission into evidence. Ms. Spence also suggests that the police officer's delay following the arrest in making a breath demand should lead to the exclusion of the toxicologist's conclusion regarding the presumption of identity. Finally, she submits that the Crown has failed to meet its onus of proof on the Impaired Care or Control charge.

[3] In relation to the evidence, I must weigh it together with the credibility of the witnesses in making my findings of fact. I am mindful of the burden of proof on the Crown.

The Evidence

[4] P.C. Anson Burnett testified that on Dec. 11, 2012, a dispatcher advised him of a radio call from a TTC driver concerned about the accused's erratic driving and the fact that his lights were off. He had been seen driving into a Tim Horton's parking lot. The officer did not know what the caller meant by the word erratic.

[5] At 5:08 pm., P.C. Burnett found the defendant in the driver's seat of his car properly parked and with the engine and lights off. His window was down part way and he seemed to be sleeping, although the officer was not sure. He agreed that the initial focus of his investigation was not one of a drinking and driving offence.

[6] P.C. Burnett parked behind the accused, got out and then approached the driver's side window where he observed the suspect to be awake and texting. Mr. Nivet told the officer he had come from work. He denied having had anything to drink but the officer leaned in and noted an odour of alcohol on his breath.

[7] P.C. Burnett asked the defendant to step outside and he complied. The officer agrees that a criminal investigation had begun. He noted bloodshot eyes, this time a very strong odour of alcohol coming from his breath and a degree of swaying back and forth, although the defendant was able to keep his balance. There were no problems with his detainee's speech.

[8] When asked again if he had been drinking, Mr. Nivet admitted to one beer "a while ago". Satisfied that the defendant had alcohol in his blood system, the officer escorted him to the front of his cruiser where, prior to arresting him, he had Mr. Nivet place his hands on the hood and did a safety field check. P.C. Burnett found 3 crushed beer cans in the accused's pocket that he said he had been collecting for some time, but that the officer believed had possibly been consumed at some point that day. He, as well, found a key to the car in the defendant's pocket. The engine is started by a push button.

[9] P.C. Burnett arrested the defendant at 5:19 p.m. and gave him reasons for it. The officer retrieved Mr. Nivet's cell phone from the car that appeared to have been lived in for some time. It was dirty and contained food wrappers, cigarette butts and ashes.

[10] At 5:26 p.m., P.C. Burnett provided the accused his rights to counsel. Mr. Nivet seemed confused about why he needed a lawyer and said he did not have one. The officer advised him that free legal advice from duty counsel would be made available to him. The defendant was cautioned one minute later and in addition told that everything he said could be recorded. P.C. Burnett agrees he could have, perhaps should have, given the accused his rights to counsel and made a breath demand following the arrest but felt it unnecessary to do so immediately.

[11] At 5:28 p.m., the officer made a breath demand and clarified what that involved, an explanation Mr. Nivet appeared to understand. Another officer arrived shortly thereafter to arrange for the towing of the accused's car.

[12] P.C. Burnett left the scene with the defendant at 5:33 p.m., arriving at 41 Division at 5:51 p.m. where he had to wait in the sallyport while another prisoner was being booked. The accused remained handcuffed in the back seat of the cruiser. At 6:02 p.m., he was brought in and paraded.

[13] Following the booking procedure, P.C. Burnett took the defendant to the report room where he waited to provide breath samples. Mr. Nivet was initially unsure if he wanted to speak to duty counsel, but when asked again requested the opportunity to do so. The officer phoned duty counsel at 6:17 p.m. A call back was received at 6:17 p.m. The defendant spoke in private with counsel until 7:04 p.m.

The Breathalyser Process

[14] P.C. Patrick Gros is a qualified breathalyser technician. He was called to attend 41 Division at 5:45 p.m. The Intoxilyzer instrument he set up was in proper working order and ready for use at 6:26 p.m.

[15] P.C. Gros received information from the officer about the circumstances of the accused's arrest at 6:30 p.m. He asked if a roadside screening device was used but was told no. There were no reasons given.

[16] P.C. Gros took custody of the defendant at 7:07 p.m. The officer noted the following indicia of impairment: a strong odour of alcohol from the accused's breath, bloodshot and watery eyes and droopy eyelids, a dry mouth, thick tongued speech that appeared to make articulation of some words difficult, drowsiness, sluggishness and slight shuffling in the sense of not lifting one's feet completely off the ground.

[17] The first breath test was suitable for analysis and received at 7:21 p.m. The result was 201 mgs. The second test took 4 minutes as the defendant was "backing off" in providing a sample of his breath. A "minimally suitable" sample of 170 mgs. was received at 7:49 p.m.

[18] P.C. Gros testified that given more than 20 mgs. difference in the second sample from the first result, he was not satisfied that a sufficiently deep lung sample had been obtained. He said the literature required two tests within 'good agreement' of 20 mgs that were taken close in time to each other in order to ensure a higher degree of reliability.

[19] As a result, P.C. Gros sent the defendant back to the report room to wait the required 17 minutes between tests. He then obtained a third breath sample of 177 mgs. at 8:15 p.m. He found the second and third readings in 'good agreement', truncating both in the Certificate of Analysis to 170 mgs.

[20] During the Intoxilyzer process, the officer made additional observations, including that the accused fumbled the mouthpiece during the first test and dropped it on the floor, that he was slow to put it in the hose and that he did not follow directions well in the sense of starting to blow and then stopping, although it is conceded possible that in this regard the defendant was attempting to minimize the samples he provided. In addition, he continued to be sluggish and shuffling when walking.

[21] Given that the breath results were received over two hours after the arrest, a forensic toxicologist's report was filed pursuant to s.657.3 of the Code. The report indicated that, extrapolated back to the time of driving, the accused would have had in his system a range of 175 – 220 mgs. of alcohol in 100 millilitres of blood.

[22] P.C. Gros determined that given the readings the defendant was to be held at the station until found fit to be released. He served the accused with Notice of License Suspension and a copy of the test results.

The Issues

Reasonable and Probable Grounds

[23] In R. v. Bush, 2010 ONCA 554, Durno J. (ad hoc) reviewed the principles involved in an assessment of reasonable and probable grounds [hereinafter RPG] that have both a subjective and objective component. The defence here concedes only subjective grounds. The objective component is based on the standard of a reasonable person placed in the position of the arresting officer. The standard is not an onerous test.

[24] At para. 54, Justice Durno described the assessment as one of a fact-based exercise dependent upon a consideration of the totality of circumstances, including those which undermine the officer's belief as well as those which support it: see also R. v. Cooper, [1993] O.J. No. 501 (Ontario Court of Justice – Provincial Division).

[25] What must be assessed are the facts as understood by the officer when the belief was formed (para. 66). In this regard, Justice Durno makes reference, at para. 43, to the comments of Doherty J.A. in R. v. Golub (1997), 34 O.R. (3d) 743 (C.A.), recognizing that the officer's decision to arrest "must be made quickly in volatile and rapidly changing situations…based on the available information which is often less that exact or incomplete".

[26] Importantly, as set out in Bush, at para. 64, the officer is entitled to rely on information, often in the form of a tip from a civilian that is confirmed by the officer's own observations. Importantly in this regard, at para. 71, it was held that the officer could rely on the report of erratic driving that appeared to be consistent with the driver being intoxicated in light of certain signs of impairment, but additionally consistent in significant part because he had struck a truck "parked at the extreme side of the road with ample space for cars to pass".

[27] In the case at bar, the officer had no opportunity to make observations that would assist him in giving scope, meaning or substance to the report of erratic driving in a manner that might tend to enhance the significance of the minimal, if equivocal, indicia of intoxication exhibited by the defendant. In short, while relevant, this hearsay evidence had limited inferential value.

[28] As well, it is unclear how long before the arrest at 5:19 p.m. and how light or dark it was outside when the civilian complaint was made so that the allegation of the headlights being out is of little assistance in relation to the objective component of the officer's belief.

[29] Odour, bloodshot eyes and slight swaying in the context of overall balance are, as noted by MacDonnell J. in Cooper, "weak indicators" of the impairment of one's ability to drive. There is little in these equivocal indica that in the manner contemplated in Bush, would appear to be consistent with the driver being intoxicated. As well, at its highest, the three crushed beer cans permit an inference of consumption and uncertain recency and are consistent with the seeming pack rat habits of the accused.

[30] I am mindful that as Durno J. indicated in Bush, at para. 61, a trained officer is entitled to draw inferences and make deductions drawing on experience in relation to which a court should give some deference, but not, in my view, to the degree that instinct and intuition allow for strong suspicion to form the basis for the objective component of RPG, leading to what MacDonnell J. describes as an "impermissible short cut". Although a close case, that is what I conclude occurred here. In the result, there have in these circumstances been breaches of the defendant's Charter ss. 8 and 9 rights.

The Application of s. 24(2)

[31] In light of the infringements, the accused applies to have the Intoxilyzer test readings excluded. In this regard, the onus is on the defence on a balance of probabilities to satisfy the court that to admit the evidence would bring the administration of justice into disrepute: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

[32] It is a consideration of all the circumstances that will determine whether admission of the evidence could bring about this result. This requires the court to assess and balance the effect of admitting the evidence on society's confidence in the justice system under the following lines of inquiry, including the seriousness of the Charter-infringing conduct, the impact of the breaches on the detainee's Charter-protected interests and society's interest in the adjudication of the case on its merits.

[33] The context for this analysis is one in which the more serious the state's misconduct, the stronger the need to preserve the long-term repute of the administration of justice by disassociating the court from that misconduct and excluding the evidence: R. v. Blake, 2010 ONCA 1. It is important to note that violation of a defendant's Charter rights means there has already been damage done to the repute of the system. Section 24(2) is prospective in that it seeks to determine whether admitting the evidence could bring the administration of justice into further disrepute: Grant, at paras. 67-71.

(a) Seriousness of the Charter-Infringing State Conduct

[34] Alleged state misconduct moves along a continuum from wilful and deliberate to inadvertent, minor acts committed in good faith. Egregious acts demonstrating reckless disregard of Charter rights will, as indicated in Grant, at para. 74, "inevitably have a negative effect on public confidence in the rule of law and risk bringing the administration of justice into disrepute". The concern here is not to punish the police or deter Charter breaches, but rather to preserve confidence in the rule of law and its processes.

[35] In this case, there is a clear basis for the subjective reasoning of the very experienced arresting officer. But, as noted, I have inferred on this evidence that P.C. Burnett likely relied too much on instinct and field experience to justify an investigative shortcut, albeit in good faith. He read slightly too much into too little. In the circumstances, he fell objectively short in deciding that use of the roadside screening device was unnecessary.

[36] While I am concerned to signal to the police and public the importance of the objective component to the liberty and fair trial interests of detainees, the degree of seriousness I ascribe to the officer's conduct in these circumstances is, to use a civil analogy, slightly below the standard of probability. On this ground, I am inclined to admit the evidence, but barely so.

(b) Impact on the Accused's Charter-Protected Interests

[37] The focus here is on the seriousness of the impact of the breach, and a weighing of the extent to which it undermined the interests engaged by the Charter right. It is case-specific because it is examined from the accused's perspective. The impact may range from fleeting and technical to profoundly intrusive: see Grant, at paras. 76-77.

[38] In this analysis, as articulated by Doherty J.A. in Blake, "the graver the state's misconduct, the stronger the need to preserve the long-term repute of the administration of justice by disassociating the court's processes from that misconduct".

[39] While it is probable here that use of the roadside screening process would have justified the arrest and breath demand, nonetheless, the impact of the breaches was serious. Set in motion by the investigative shortcut was a chain of events that included an unlawful arrest and breath demand, search, detention for approximately 12 hours, and although minimally intrusive, the taking of bodily samples.

[40] In these circumstances, the exclusion of the breath results would tend to discourage investigative shortcuts and preserve the long-term repute of the administration of justice.

(c) Society's Interest in a Trial on the Merits

[41] This inquiry stresses the truth-seeking function of trials and generally favours admission of the impugned evidence, particularly where the evidence is considered reliable and is important to the prosecution's case. In Grant, the court held that exclusion of reliable evidence, particularly where the method of its collection of bodily samples is considered in the authorities to be relatively non-intrusive (see R. v. Stillman) may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution.

[42] In balancing all of these factors, I am mindful that Grant indicates that while the seriousness of the offence may be weighed in the analysis, it is not a material consideration. This is a close case. The public interest in charges of this kind being tried on the merits is high. At the same, the impact of the breaches here were serious and set in motion a series of state actions that diminished the defendant's liberty interests over a period of 12 hours. However, in light of the indicia apparent in the case and good faith error in judgment on the part of the officer, I am not persuaded that the infringements were so serious that public confidence in the law and its processes would be diminished long-term. The evidence will be admitted.

Bolus Drinking

[43] As noted earlier, given that the breath testing was done outside 2 hours, the Crown tendered the report of an expert toxicologist for the purpose of proving the defendant's blood alcohol concentration [BAC] at the time of driving. As a pre-requisite to its admissibility, the Crown must prove 4 assumptions that are set out in R. v. Grosse (1996), 29 O.R. (3d) 785 (Ont. C.A.)

[44] It is only the third assumption, that the accused did not consume large quantities of alcohol within 15 minutes of driving, which is at issue in this case. While there is no evidentiary burden on the defence to prove bolus drinking, it must be able to "point to something in the evidence that at least puts the possibility that the accused had engaged in bolus drinking in play", given the common sense inference that normal people do not ordinarily consume large quantities of alcohol shortly before, or while, driving: R. v. Paszczenko, 2010 ONCA 615, [2010] O.J. no. 3974 (Ont. C.A.), at paras. 31-2.

[45] I found earlier that in the circumstances of this case the crushed beer cans permitted the inference of consumption that was unlikely to be recent, particularly in light of uncertainty as to how long before the investigation the accused was driving. In this context, applying common sense as to how ordinary people consume alcohol, I consider the possibility of bolus drinking on the part of the defendant to be remote.

[46] I am satisfied on the evidence beyond a reasonable doubt that no bolus drinking occurred here. The toxicologist's report and its conclusion that Mr. Nivet's BAC at the time of driving was over the legal limit will be admitted into evidence.

Delay

[47] Ms. Spence submits that following the arrest the officer failed, contrary to s. 254(3), to demand a sample of the accused's breath as soon as practicable. She says there is no reasonable explanation for the delay here of 7-9 minutes. She submits the authorities indicate that in those circumstances the Crown is no longer entitled to rely on the breath readings as presumptive evidence of the defendant's BAC: R. v. Singleton, [2006] O.J. No. 4332 (Ont. S.C.).

[48] In Singleton, an unexplained delay of 29 minutes rendered the subsequent breath demand unlawful and the certificate inadmissible. In this regard, see also R. v. Jalovec, [2004] O.J. No. 5980 (Ont. C.J.) and R. v. Killen, [2006] O.J. No. 4592 (Ont. C.J.). The term 'as soon as practicable' has been interpreted to mean 'within a reasonably prompt time', not 'as soon as possible': R. v. Squires (2002), 166 C.C.C. (3d) 65 (Ont. C.A.).

[49] In the case at bar, following the arrest and discovery of the beer cans, the officer followed up with a search of the defendant's car that appeared to be a repository for his personal possessions. He provided the accused his rights to counsel 7 minutes later, followed by a breath demand 2 minutes after that. The explanation for the relatively short delay because of a continuing search is not unreasonable. Counsel for the accused did not press this issue. The application to have the toxicology report excluded is dismissed.

Findings and Verdict

[50] In the result, on the evidence, the Crown has proven beyond a reasonable doubt that the accused had care or control of his motor vehicle while having more than the legal limit of alcohol in his system. There will be a finding of guilt.

Operation Care or Control

[51] P.C. Burnett did not observe the defendant driving his car. When investigating him he noted minimal signs of impairment. The observations of the breathalyser technician pointed to the effects of consumption and fatigue. The arresting officer was also in the breathalyser room but had nothing to add despite having spent more time with the accused. The Crown concedes there are discrepancies in the evidence of the two officers.

[52] In weighing the evidence, I am mindful that even slight impairment of one's ability to operate a motor vehicle is sufficient to make out the offence: R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont. C.A.), affd (1994), 90 C.C.C. (3d) 160n (S.C.C.).

[53] In R. v. Andrews (1996), 1996 ABCA 23, 104 C.C.C. (3d) 392 (Alta. C.A.), the court made note of the distinction between one's functional abilities as distinct from one's ability to drive. It held that in most cases if the conduct of the accused was a slight departure from normal conduct, it would be unsafe to convict.

[54] On this evidence, I would rely more on the evidence of the arresting officer who had significantly more opportunity to observe the defendant's functioning. I am left in reasonable doubt on the Stellato standard that the accused's ability to operate a motor vehicle was impaired by alcohol. That charge will be dismissed.

Released: April 22, 2014

Signed: "Justice L. Feldman"