Court File and Parties

Date: 2014-04-25

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Michael Daides

Judgment

Before: Justice Sandra Bacchus

Heard: March 25, 2014

Reasons released: April 25, 2014

Counsel:

• P. Alexander, for the Crown
• D. North, for the Defendant

Bacchus J.:

Introduction

[1] The defendant is charged with one count of Impaired Driving and one count of Drive Over 80mg contrary to the Criminal Code, and one count of Speeding contrary to the Highway Traffic Act. On August 24, 2012, at approximately 9:30 pm, the defendant was operating a van northbound on Keele Street when he was observed by police constable Patrick Gros.

[2] The defendant's vehicle pulled onto northbound Keele street in front of Officer Gros' vehicle and then accelerated at a high rate of speed. Officer Gros activated his B3 radar device and clocked the defendant at 86km in a 60 km zone. Officer Gros testified that he sped up to catch the defendant's vehicle and activated his roof lights.

[3] The defendant's vehicle stopped at a red light at an intersection north of Sheppard and south of Grand Ravine Drive. Officer Gros positioned his vehicle to the right and rear of the defendant's vehicle so that the defendant would see him. However, Officer Gros did not sound his horn or get out of his vehicle to approach the defendant.

[4] When the light changed to green the defendant's vehicle proceeded through the intersection at approximately 30 km/hr, before turning into a plaza at 3665 Keele Street.

[5] Officer Gros positioned his vehicle perpendicular to the rear of the defendant's vehicle and observed the defendant's van start to move back. This caused Officer Gros to yell to the defendant to put the car in park. Officer Gros testified that he did not see any reverse lights come on the defendant's van.

[6] At 9:30 pm, Officer Gros approached the driver's side of the van and observed the defendant driver, and two other passengers. Officer Gros testified that he was face level with the driver and could smell a strong odour of alcohol on the defendant's breath. At 9:33pm, after a brief discussion with the defendant, Officer Gros formed a suspicion that the defendant might have alcohol in his blood and made a demand that the defendant provide a sample of his breath into an approved screening device.

[7] At 9:37pm the defendant registered a fail and was arrested for driving with over 80 mg of alcohol in his blood. At 9:59pm, the defendant was transported to 32 division. Samples of the defendant's breath were taken at 11:07pm and 11:28pm and the results obtained were readings of 100mg in 100ml per blood respectively. (Exhibit 2)

Analysis of the Evidence

Impaired Driving

[8] The crown must establish beyond a reasonable doubt that the defendant's ability to operate his motor vehicle was impaired and that the consumption of alcohol was a contributing factor. The law requires that slight impairment in one's ability to operate a motor vehicle is sufficient for proof of the offence of impaired driving. If the evidence establishes any degree of impairment of the ability to operate the motor vehicle, the offense of impaired driving is made out. R v. Stellato, [1993] O.J. No. 18 (Ont C.A.), affirmed, [1994] SCJ No. 51.

[9] Evidence that the defendant's judgment is impaired by alcohol would be sufficient to make out the offence of impaired driving even if the manner of driving did not demonstrate an impaired ability to drive. R v. Kewaquado, (2001) O.J. No. 6063, affirmed (2003) O.J. No. 2223 (C.A.).

[10] Officer Gros testified in a credible, reliable and fair manner. The officer's opportunity to observe the defendant's driving was focussed and unobstructed. The officer's evidence that he reached for his radar gun upon observing the defendant's vehicle is externally consistent with his evidence that he observed the defendant accelerate at a high rate of speed. There is no challenge to the reliability of the radar device. The results of the radar gun are consistent with Officer Gros' observations.

[11] Officer Gros was forthright in testifying that there was nothing in the manner of the defendant's driving which he viewed as dangerous or unusual, and that by the time he approached the defendant's vehicle in the plaza he had not as yet decided if he was going to give the defendant a ticket for speeding.

[12] The crown submits that the totality of the following factors constitute proof beyond a reasonable doubt that the defendant's ability to operate his motor vehicle was impaired by alcohol:

• that the defendant was speeding;
• that the defendant did not pull over at the intersection when Officer Gros was behind him signalling by flashing his cruiser lights;
• that the defendant travelled extremely slowly when leaving the intersection before pulling into the plaza;
• that the defendant smelled of alcohol, had tired droopy eyes, began to sweat profusely in the back of the cruiser and became increasingly repetitive, belligerent and nonsensical over the course of the investigation.

[13] With respect to these indicia I am satisfied beyond a reasonable doubt that the defendant accelerated his speed and was travelling for some brief period of time at 86 km in a 60km zone. As noted both the radar gun readings and Officer Gros' observations regarding the defendant's accelerated speed are unchallenged in this respect. However, on the issue of the defendant's impaired ability to operate the motor vehicle there is nothing remarkable in the way the defendant operated his vehicle which assists in satisfying the crown's burden of proof.

[14] There is no evidence that the defendant was speeding over any significant period of time or that his driving was erratic to any degree. Officer Gros did not observe any weaving or other driving manoeuvres by the defendant which were consistent with an impaired ability. The fact that Officer Gros was unsure whether he was even going to give the defendant a ticket for speeding is consistent with a finding that there was nothing even slightly remarkable in the manner the defendant was operating his vehicle other than its speed.

[15] In addition, there is nothing I find to be compelling in the fact that the defendant did not remain at the intersection when Officer Gros was behind him at the intersection flashing his cruiser lights.

[16] Exhibit 2 reveals that the defendant's van had no rear window. The officer did not do anything more to hail the defendant while stopped at the intersection other than flash his lights. Thus reasonable inferences are available that the defendant may not have immediately noticed the police vehicle or may have been uncertain whether he was being pulled over.

[17] After proceeding through the intersection the in car camera system indicates that the police cruiser's sirens were activated momentarily, although Officer Gros has no recall of this happening. (Exhibit 2) In any event the defendant turned his vehicle into the plaza which was the next available location after the intersection to pull off the road. There was nothing remarkable or significant in the way the defendant manoeuvered his vehicle; the defendant's slow manner of driving and decision to pull into the plaza is consistent with realizing that the officer was behind him. I do not find that the defendant's failure to immediately stop or remain at the intersection or the slow, cautious manner that the defendant turned into the plaza to be compelling indicia that the defendant's ability to operate his motor vehicle or his judgment was impaired at the time he was operating this vehicle.

[18] With respect to the officer's observations of the defendant, Officer Gros agreed that the defendant's eyes which he described as droopy and somewhat tired-looking appeared to be consistent with his presentation in court during this trial. The defendant was sweating profusely in the back of the cruiser but it is reasonable to infer that the defendant's condition was in response to the heat in the back of the cruiser, where the windows were up and doors closed. There was no indication that the defendant was having this difficulty when initially stopped and investigated by the police outside of the vehicle.

[19] It is clear, given the evidence of Officer Gros and having viewed the in car camera video, that while at the roadside before the defendant is arrested and detained in the police cruiser, the defendant is responsive to all the questions put to him by the officer and has no difficulty with his motor skills.

[20] What remains in terms of indicia is the smell of alcohol from the defendant's breath and the fact that the defendant became increasingly obnoxious the longer he was detained by the police. Although the odour of alcohol confirms that the defendant had consumed alcohol, the strength of the odour alone is not probative of the issue of the degree of the defendant's impairment. R v. Tavone, (2007) O.J. No. 3073.

[21] Sometime after the defendant is placed under arrest however, his behaviour appears to decompensate. The defendant becomes increasingly repetitive and argumentative and later belligerent and nonsensical.

[22] In my view the defendant's initial repetitive and argumentative behaviour is equivocal at best on the issue of impairment. Initially, while in the police cruiser, though repetitive and argumentative, the defendant remains clear and coherent in his communication with the officer.

[23] However, as time passed Exhibit 2 reveals that the defendant's speech became slower and he began to make nonsensical and incoherent comments. This behaviour is certainly consistent with a significant level of impairment.

[24] However, the missing component I find is a temporal connection between the evidence of impairment and the defendant's driving. Section 253(1)(a) of the Criminal Code requires that the crown establish beyond a reasonable doubt the defendant's impaired ability while he was operating his motor vehicle. There is simply no contemporaneity between the defendant's subsequent impairment and the driving observed by Officer Gros sufficient to find that the crown has proven this offense beyond a reasonable doubt. Given the totality of the evidence I find that I am left with a reasonable doubt in this regard and the defendant will be found not guilty of impaired driving.

Drive Over 80 mg

[25] The defendant argues that the delay in taking the breath samples runs afoul of the requirement of section 258(1)(c)(ii) of the Criminal Code which requires that each sample be taken as soon as practicable after the time of the alleged offence and in the case of the first sample no later than two hours from the alleged commission of the offense.

[26] In this case the defense points to four areas of either unexplained or unnecessary delay as a result of the arresting officer's conduct or other state action which the defendant contends either individually or cumulatively resulted in unnecessary delay.

[27] Firstly, the defendant argues that the officer acted unreasonably in not immediately transporting the defendant to the division after the officer dealing with the tow of the defendant's truck arrived on scene.

[28] Secondly, the defendant argues that there is an unexplained 6 minute delay when the defendant and arresting officer were in the sally port area of 32 division before the defendant was booked into the station which this Court should find unreasonable.

[29] Thirdly the defendant argues that the arresting officer's decision to contact and connect the defendant with duty counsel absent the defendant's request to speak with duty counsel resulted in a further unreasonable delay of approximately 12 minutes in obtaining the breath samples.

[30] Fourthly, the defendant argues that there is no evidence that the breath technician was ready to receive the defendant or was even in the building before 22:58pm when the defendant attended the breath room to provide his initial sample. There is an approximate 14 minute gap between the time the defendant completes his brief conversation with duty counsel at 22:44pm and enters the breath room. The defendant argues that as there is no reasonable explanation for the delay in bringing the defendant to the breath room, the crown has failed to establish that the defendant's readings were taken as soon as practicable.

[31] In R v. Vanderbruggen, [2006] O.J. No. 1138, the Court of Appeal held that the 'as soon as practicable' does not require that the demand be made immediately, only that the officer has acted reasonably in incurring any periods of the delay. At paragraph 13 the Court held:

In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence in taking the first test. The "as soon as practicable" requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that in all the circumstances the breath samples were taken within a reasonably prompt time there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody.

[32] In this case I find that neither the delay at the roadside or at the sally port was unreasonable. Officer Gros only remained at the scene for an additional 5 or 10 minutes to complete paper work pertaining to the defendant's matter. Certainly there were other options available to Officer Gros rather than remaining at the scene; Officer Gros could have let his partner drive while he tended to these duties or he could have waited until he arrived at the station. However, I cannot say there was anything unreasonable or inordinate in the delay caused by the officer's course of action in this respect.

[33] In addition, Officer Gros testified that the reason for the 6 minute delay in entering the station from the sally port area was that he was waiting to be called in to the division which is the usual booking process. Again I find nothing inordinate in this time frame. In addition, I note Officer Gros' testimony regarding the handful of operating breath test facilities in the city that evening and that there was no breath tech facility in 31 division where the defendant was arrested. It is reasonable to infer that the minimal delay the defendant experienced in the sally port was occasioned by some delay in processing prisoners at the division. I find that this time frame was not unreasonable.

[34] At 10:29pm Officer Gros placed a call to duty counsel on the defendant's behalf even though the defendant had not requested that such a call be placed. At 10:38pm duty counsel returned the call. As the officer was escorting the defendant to the privacy booth to speak to duty counsel the defendant told the officer that he did not want to speak to duty counsel. Officer Gros' responded by telling the defendant that he could tell duty counsel himself. The defendant was placed in the privacy booth at 10:41pm and completed his call with duty counsel at 10:44pm.

[35] The defendant was a frustrating individual to deal with while under arrest at the scene. He incessantly and repeatedly asked Officer Gros questions about whether he was going to jail and what would happen to him as a result of being charged. Even though Officer Gros attempted to answer the defendant's questions the defendant did not appear to be listening and continued to press about his legal rights often talking over the officer.

[36] Officer Gros was patient and professional in dealing with the defendant. However as a result of the defendant's constant interruptions, Officer Gros omitted asking the defendant if he wished to speak with a lawyer after giving him his rights to counsel at the roadside. Having later realized his omission Officer Gros admits that in an attempt to fix the problem with the rights to counsel, he initiated a call to duty counsel for the defendant, even though the defendant did not ask to speak to duty counsel.

[37] In determining whether or not an officer's decision to contact duty counsel may result in a finding that the defendant's breath samples were not taken as soon as practicable an analytical frame work for analysis by the trier of fact has been set out and relied upon in cases such as R v. Davidson, [2005] O.J. No. 3474 and R v. Maudsley, (2006) O.J. No. 3619 as follows:

1. The first question is whether there has been a clear and unequivocal waiver by the accused of the right to counsel;

2. If the waiver was not clear and unequivocal it is reasonable for the police to contact duty counsel in order to avoid later being confronted with the argument that the accused's right to counsel was infringed;

3. If the degree of the accused's intoxication is such as to create a reasonable basis for the police to conclude that the right to counsel was not fully comprehended it would be reasonable for the police to contact duty counsel to avoid a subsequent allegation of a breach of the right to counsel;

4. If the waiver is clear and unequivocal it is not reasonable, as a matter of law, for the police to contact duty counsel thereby delaying the administration of the breath tests. Where the delay occasioned by the call to duty counsel is unreasonable it is effectively unexplained;

5. The innocence of the police motive in placing the call to duty counsel is irrelevant, as an accused should not be forced to speak to counsel where he or she clearly wishes to waive that right;

6. There is no requirement that an accused repeat or persist in a waiver or express the waiver in strong terms. As in other areas of the law, "no means no";

7. The fact that an accused ultimately takes a call from duty counsel does not, by itself, operate as an estoppel of the waiver. All the surrounding circumstances must be examined to discern if the waiver has been withdrawn.

[38] In this case although there is no evidence that the defendant specifically waived his right to counsel during the booking process, the preponderance of the evidence is that the defendant did not ask to speak to a lawyer and specifically did not ask that the officer contact duty counsel on his behalf. When the defendant was advised by Officer Gros at approximately 22:41pm, that duty counsel was on the phone for him, the defendant responded by stating: "Fuck it! I don't want to talk to him. What's he going to tell me?"

[39] Certainly Officer Gros understood that the defendant did not wish to speak to duty counsel and responded by directing the defendant to tell duty counsel himself. The reason that the defendant spoke to duty counsel was that Officer Gros compelled him to do so. The defendant's intention to waive his right was clear and unequivocal.

[40] Having made this finding I find that Officer Gros' action in putting the defendant in touch with duty counsel on his own initiative and then insisting the defendant speak with duty counsel over his clear objection was not a reasonable course of action: "Counsel cannot be forced on an accused that declines to exercise his or her right." R v. Shin, [2007] O.J. No. 125, par. 28. Officer Gros could have remedied his omission by simply asking the defendant specifically if he wished to speak to a lawyer or duty counsel and then heeding the defendant's request, if any. Unfortunately, the course of conduct Officer Gros adopted resulted in an unreasonable delay of 12 minutes. The fact that the defendant took the call and spoke to duty counsel for approximately 3 minutes does not operate as an estoppel of the waiver. Maudsley, supra, para. 39.

[41] Despite the reasons for this period of delay I would not find that this period alone is significant enough to determine the issue. There is no allegation of a Charter violation in this case. As such in my view it is not the police conduct in respect of the delay which determines the issue but instead whether the delay itself caused the breath samples not to be taken in a reasonably prompt manner. In the circumstances of this case finding this 12 minute delay to be detrimental to the elements of proving this offense would erroneously elevate the requirement that the defendant's breath sample be taken as soon as practicable to a requirement of as soon as possible.

[42] In this case however, there is an additional 14 minutes of unexplained delay from the time the defendant completes his brief conversation with duty counsel at 10:44pm until the defendant is brought to the breath technician at 10:58pm to provide his first sample. Officer Gros testified that he believed that the breath technician was in the building preparing the instrument but conceded that he did not have any direct knowledge that this was in fact the case. In re-examination Officer Gros confirmed that he had made a note at 22:44pm to the effect that he was waiting for the breath tech and doing paperwork but his evidence went no farther in closing the gap. Officer Gros' evidence regarding the time spent preparing the breath room is speculative. There was no other evidence lead regarding the reason for delay during this time period.

[43] The court is left therefore with no explanation for this period of delay. It would be improper and speculative on the evidence before me, given the onus and burden of proof on the crown, to take judicial notice that the breath technician may likely have been in attendance and preparing for the test in this time frame.

[44] Again, standing alone this period of delay would not be detrimental to a finding that the readings in this case were taken as soon as practicable. However, the total of 26 minutes of unexplained or unreasonable delay where the defendant's first sample was obtained 1 hour and 37 minutes from the time of the alleged offense is a significant period of delay. I find such a period of time is inconsistent with a finding that the readings were obtained in a reasonably prompt manner, as soon as practicable. Davidson, supra.

[45] As such, I find that the crown has failed to comply with the requirements of section 258(1)(c)(ii) of the Criminal Code and the crown is denied the presumption of identity in relation to the breath readings. The defendant is therefore found not guilty of the Drive Over 80mg count.

[46] Acquittals will be entered in respect of count 1 and 2.

Reasons released: April 25, 2014

Signed: Justice Sandra Bacchus