Court Information

Ontario Court of Justice

Date: 2014-01-16

Court File No.: Toronto 4817 998 12 70017194

Parties

Between:

Her Majesty the Queen

— and —

Paul Murphy

Judicial Officer and Counsel

Before: Justice Richard Blouin

Heard on: December 16, 2013

Reasons for Judgment released on: January 16, 2014

Counsel:

• G. Ho, counsel for the Crown
• J. Myskiw, counsel for the defendant Paul Murphy

Judgment

BLOUIN, J.:

Facts

[1] Paul Murphy stands charged that he committed the offences of Driving Impaired and Driving Over 80 on January 31, 2012.

[2] The Crown called one police officer, PC Christopher Knight.

[3] The defendant did not call witnesses, but argued that his s. 9 Charter rights were violated, leading to a s. 8 unlawful search, and as a result submitted the breathalyzer evidence should be excluded under s. 24(2). The defendant also argued that the breath samples were not taken as soon as practicable, as required by s. 258(1)(c). As a result, the presumption of identity required to prove the offence of Over 80 is not available.

[4] The case proceeded as a blended trial and voir dire.

Police Observations and Stop

[5] At 2:46 a.m. PC Knight made observations of the defendant's driving his Toyota Highlander that concerned him. These observations included:

• straddling lanes one and two on Eglinton Avenue East near Redpath;
• activating a left turn signal in that same area where there was no place to turn into;
• at Mount Pleasant, the defendant stopping at the red light, but when it turned green instead of continuing eastbound at Eglinton, he honked his horn;
• approaching Bayview Avenue on a green light, the Highlander stopped for 5-10 seconds before making a left turn onto Bayview.

[6] After the police lights and siren were activated, the defendant stopped in a condominium driveway just north of Eglinton. There were one or two centimetres of snow on the roadway.

Roadside Observations and Arrest

[7] When PC Knight spoke to the defendant, he smelled alcohol on his breath. Also observed were:

• glassy eyes;
• pupils enlarged;
• extremely slow to speak;
• difficulty finding his licence.

[8] At that time PC Knight formed the opinion that the defendant's ability to operate a motor vehicle was impaired by alcohol, and he arrested him at 2:59 a.m.

Police Station and Breath Samples

[9] At 3:07 the defendant was taken to 32 Division, arriving at 3:19 a.m.

[10] After booking, attempts were made to contact a lawyer. In this case the defendant's father, starting at 3:27 a.m. At 3:51, the defendant was taken to the breath room.

[11] At 3:59, the defendant provided a sample with a reading of 270 milligrams.

[12] At 4:21, the defendant provided a second sample with a reading of 260 milligrams.

[13] The defendant was taken to 53 Division and was still in custody at 7:00 a.m. in order to have time to sober up.

Legal Analysis

Arbitrary and Unlawful Stop

[14] The law is clear in that police require no cause to stop motorists. As long as the stop is for lawful purposes (to check for sobriety, mechanical fitness, licence ownership and insurance particulars under the HTA), it can be random. (See R. v. Nguyen; R. v. Mellenthin, [1992] 3 SCR 615.)

[15] Although Constable Knight testified that he stopped the defendant because he was concerned with his driving, when asked by the Crown why he had done so, he did not articulate reasons connected to the specific powers contained in the HTA. However, it is clear after reviewing Exhibit 1, the onboard police video, that Constable Knight was checking the sobriety of the defendant. The first question asked by Knight after "How's it going?", is "Were you drinking tonight?".

[16] In my view, the defendant was lawfully stopped by Constable Knight. The issue then becomes did the police have reasonable and probable grounds to arrest the defendant pursuant to s. 254(3) of the Criminal Code when he arrested, handcuffed, and placed him in the rear of the police vehicle to be transported to 32 Division.

[17] Since s. 9 arbitrary detention was a live issue, the Crown sought to establish grounds to arrest the defendant from both the officer's evidence, and the onboard police video. Constable Knight testified regarding the defendant's driving. He spoke of three distinct incidents along the stretch of Eglinton Avenue East from just west of Redpath Avenue to Bayview Avenue. Only the last of the three was captured on video.

[18] My viewing of that video shows no bad driving whatsoever. The officer testified that the defendant approached Bayview Avenue in the left turn lane. Although there was a green light at Bayview and no traffic, he sat at the light for 5-10 seconds. My viewing of the Exhibit 1 shows the defendant slowly moving into the left turn lane and making a slow left turn. Exactly what one would hope he would do on snowy roads that lead downhill to the intersection. He did not stop at all, much less 5-10 seconds. I have no idea where PC Knight gets that.

[19] The other two incidents, that were not caught on video, have the defendant (1) attempting a left turn at Redpath from the middle lane, where there is no place to turn into, while just before that straddling the lanes of traffic and (2) stopping for a red light at Mount Pleasant. When the light turned green he did not proceed but honked his horn. The officer did concede that because of the snow the lanes were hard to see.

[20] Around 2:59, and after stopping the defendant in a commercial driveway off Bayview, the Constable Knight formed grounds that the defendant's ability to operate a motor vehicle was impaired by alcohol and arrested him.

[21] Those grounds were informed by the driving evidence, and the interaction with the defendant upon the vehicle stop. When PC Knight approached the driver's window. He asked, "How's it going?" and immediately thereafter, "Have you been drinking tonight?" Despite Knight's characterization of the defendant answering "any" question slowly as was in his notes, the defendant answered some questions slowly and some very quickly.

[22] That characterization of the defendant being slow to speak in answering any questions, along with glassy eyes, enlarged pupils and trouble finding his licence led the officer to arrest the defendant.

[23] My viewing of the onboard video shows the defendant slow to answer some questions and quick to answer others. In my view, he did not have trouble finding his licence. He reached to his back pocket quickly to retrieve what appeared to be a wallet and took 7-8 seconds to locate the licence inside. Nothing abnormal about that.

[24] PC Knight's view that the defendant had glassy eyes and dilated pupils cannot be confirmed or rejected by viewing the video. It was too far away. I do, at this point, note that I had some concerns about the officer's ability to accurately capture what occurred that night. First, there is the incorrect notes about the defendant stopping for 5-10 seconds before making a left turn at Bayview, which did not happen. Secondly, the officer made notes and maintained this position in court, that the defendant answered "any" questions slowly, which he did not. Finally, the officer estimated the distance from just west of Redpath and Bayview Avenue along Eglinton Avenue at less than .5 kilometers. Anyone, who says he knows the area well, as he did, would know that is not even close to being correct. It is actually 1.8 kilometers (per Google maps). I don't have much confidence in the accuracy of his observations. In addition, the video of the arrest shows the defendant stable on his feet, not slurring any words, having no trouble providing his licence.

[25] Given that PC Knight felt he had reasonable grounds to arrest based on his observation of the defendant's driving, and of the defendant, I conclude he fell far short, to the reasonable observer, in attaining that standard. He had reasons to suspect alcohol to allow for a roadside screening test, but he did not have reasonable grounds to arrest, and make a s. 254(3) demand.

Section 24(2) Analysis

Seriousness of the Charter-Infringing State Conduct

[26] In my view, the defendant's arrest, in the absence of reasonable and probable grounds to do so, is particularly concerning given that police have available to them, in drinking and driving investigations, a screening tool (the ASD) to allow formation of lawful grounds. That tool should have been employed here and was not. The defendant was required to submit to an arrest, handcuffing and a visit to the police station that required him detained for over an hour before performing tests. (I do not include the time after that till his release, since that time was dictated by the high readings.) All of this in the context of the officer's notes containing false information about the defendant's manner of driving. Here I am talking about the officer noting that the defendant stopped his vehicle for 5-10 seconds while making a left turn onto Bayview when he clearly did not. The seriousness of the police conduct is at the higher end of the scale for the above reasons, and requires the Court to send a message that it will not be condoned. This aspect strongly favours exclusion.

Impact of the Breach on the Defendant's Charter-Protected Interests

[27] Admission of the evidence would send a message that the right to be free of arrest unless reasonable and probable grounds exist, would send a message that such an important principle in the individual's relationship with the police matters little. This aspect favours exclusion.

Society's Interest in Adjudication on the Merits

[28] This aspect favours inclusion. The breath sample readings are reliable, they are three times the legal limit, and the Crown's case is crippled without their inclusion.

[29] In the final analysis, I find the admission of breath sample readings would bring the administration of justice in disrepute.

[30] Accordingly, that evidence is excluded. The defendant will be found not guilty on the charge of Driving Over 80.

Impaired Operation

[31] Since I found the police officer did not have reasonable grounds to arrest the defendant, it is obvious that the evidence prior to arrest falls considerably short in proving Drive While Ability Impaired. There is, in addition, no evidence regarding impairment after the arrest. When the Court examines the booking video, nothing there assist in proving impairment. The defendant will also be found not guilty of the Impaired Driving count.

[32] Although moot at this point, I find the breath samples were taken as soon as practicable per Vanderbruggen.

Released: January 16, 2014

Signed: Justice Richard Blouin