Ontario Court of Justice

Date: 2014-06-09

Court File No.: City of Toronto 998 13 350409

Between:

Her Majesty the Queen

— AND —

Gheorghe Stetco

Before: Justice J. De Filippis

Heard on: 13 January & 14 April 2014

Reasons for Judgment released on: 9 June 2014

Counsel:

• G. Karding, counsel for the Crown
• S. Roy, for the defendant

De Filippis J.:

[1] Introduction

[1] The defendant was charged with impaired driving and refusing to provide a breath sample to a qualified intoxilyzer technician. I heard from four witnesses; three police officers and the defendant. The defendant applied to stay the proceedings because, after arrest, he was subjected to video surveillance while in the washroom at the police station. I dismissed that application at the start of the trial. The defendant also claimed his Charter rights under section 8 (to be free from unreasonable search and seizure) and section 10(b) (right to counsel) were violated and applied to exclude evidence tendered by the Crown to prove the charges. There is no merit to these claims and I dismiss them. These reasons also explain why I find the defendant not guilty of impaired driving and guilty of refusal to provide a breath sample.

Prosecution Evidence

[2] On the day in question, PC Ford was conducting speed enforcement in the area of Kingston Rd. and Birchcliff Ave. At 1:44pm, the defendant drove past him in a motor vehicle at a speed of 82 km/hr in a zone with a posted limit of 50 km/hr. The defendant was pulled over and the officer approached the driver's door. He advised him of the reason for the stop and demanded his driver's license, permit and insurance. PC Ford testified the defendant passed over his licence in his wallet before locating it. He also searched for his insurance and permit for some time before finding them in a blue folder commonly used for such documents resting in plain view in the centre console. When asked, the defendant denied drinking alcohol.

[3] PC Ford wore an audio recording device and this was played to the court. The defendant became agitated and angry as he searched for his documents. In addition to these observations, the officer detected the odour of alcoholic on the defendant's breath and slightly slurred speech. Accordingly, he demanded the defendant forthwith provide a sample of his breath into an approved screening device. The defendant questioned why he must go the cruiser for this purpose and after further discussion, loudly said, "You know what, I'm going to refuse". After explaining the consequences of failing to comply, the defendant was told he would be placed under arrest for this offence. At this time, PC Crawford arrived on scene. He also detected an odour of alcohol coming from the defendant's breath and noted that his speech was slurred.

[4] PC Ford testified that the defendant picked up a water bottle to drink. As it has been his experience that some people believe drinking water will help them by diluting alcohol, he said "that isn't going to help you." He denied the suggestion he tried to take the bottle away from the defendant and testified that when the latter attempted to take a drink, he "missed his mouth" and spilled water down his chest. This convinced the officer the defendant was impaired and he told him he was under arrest for that offence. The defendant refused to leave the vehicle. He can be heard to say "No" as he braced himself against the interior of the car. The two officers forcibly removed the large man from the small car with some difficulty as the defendant resisted arrest. Much of this is captured on video from a camera in the cruiser parked some distance behind the defendant's vehicle. The defendant shouted and cried as he was put to the ground and handcuffed. He was taken up and escorted to the cruiser. The defendant alternatively screamed and cried while in the back seat. His handcuffs were loosened after he complained they hurt him. PC Ford then read him his rights to counsel as the defendant continued to shout and cry.

[5] The video in the cruiser recorded the trip from the scene of arrest. The officers proceeded directly to the police station as the defendant occasionally talked to himself and cursed. On arrival at the station, the defendant was paraded in front of a sergeant. The latter explained the right to counsel and the availability of duty counsel. The defendant declined and said he wanted to speak to a "Catholic priest". When told to remove his belt, his pants fell down and he had to hold them up.

[6] The defendant was turned over to PC Kim, a qualified intoxilyzer technician, to obtain samples of the defendant's breath. These proceedings are captured on video. The officer explained how to provide a breath sample. The defendant protested that he had had only one glass of wine and made several unsuccessful attempts to provide a sample. PC Kim informed him that he was sucking in and/or blowing for short bursts and instructed the defendant to "keep blowing, nice and easy". He also advised him that blowing into the machine would produce a sound and that he must continue until told to stop. The officer demonstrated how to blow by doing so on a mouthpiece of his own. This mouthpiece was not connected to the machine and, thus, no sound was heard. On each of several subsequent attempts the defendant blew into the device until the sound was just heard and then he stopped blowing.

[7] PC Kim informed the defendant that he would be charged with refusal to comply. The defendant said "I refuse. Charge me." As he stood up to leave the room, another officer told him that that meant there would be two charges. This seemed to surprise the defendant and he strongly objected to "having two charges". He pleaded for another opportunity to comply. During this second segment, the defendant made several more unsuccessful attempts to provide a sample. He blew longer on these occasions as PC Kim said "keep going" but stopped each time before the machine could register the sample.

[8] PC Kim again informed the defendant he would be charged with refusal. Again the defendant asked for another chance. He was given several more opportunities with the same results. In the third segment, PC Kim advised the defendant he would have "one last chance". In fact, he was given several more. On each occasion, the defendant failed to blow long enough. He was escorted from the room loudly objecting to the added charge and begging for another opportunity.

[9] PC Kim testified that, having regard to the defendant's ability to shout during their interaction, he did not consider it necessary to inquire if the defendant had "lung capacity issues" preventing him from providing a suitable sample. He also stated the defendant had bloodshot eyes and a strong odour of alcohol from his breath.

Defence Evidence

[10] The defendant testified that there is no centre console in his vehicle and that he did not overlook his documents; they were in the glove compartment. He denied that PC Ford ever made a roadside demand for breath samples and that he simply accused him of being "drunk" before five officers put him to the ground, while some of them knelt on his back and neck, pushing his face into the road. He added that these officers then picked him up and threw him "like a rag" into the cruiser. The defendant testified that before reading his rights to counsel, PC Ford said, "I know you're a Romanian" in an accusatory fashion and claimed the police were brutal and aggressive.

[11] The defendant asserted that during the ride from the scene of arrest to the police station he threatened to break the window of the car if they did not fix his position in the vehicle because the pain was so great, and that he began to kick at the window. He added that when the police realized he was about to damage the window, they pulled over and sat him upright before continuing. The defendant denied the booking sergeant re-iterated his right to counsel or that he asked for a Catholic priest. He said there were 4 or 5 officers in the room, that they mocked him, and one of them pulled his belt and pants down.

[12] The defendant testified that he was not impaired and tried his best to provide a breath sample. With respect to the latter, in cross-examination, he added that he has a hearing problem and was unable to hear the sound the machine made when he blew into the mouthpiece. He asserted that he did not understand until the trial date how to blow. However, he agreed that he understands the words "blow until I tell you to stop."

Credibility

[13] Much of the defendant's testimony is contradicted by the audio and video record: He was, in fact, subjected to a roadside demand; there were two officers at the scene, not five; he was not thrown into the cruiser by these five officers but was escorted to the vehicle by PC Ford and PC Crawford; the defendant did not threaten to break the car window, or attempt to do so, and the police did not stop en route to the station; he did, in fact, ask for a Catholic priest when advised of his right to counsel; the police did not pull his pants down and they did not mock him.

[14] Faced with these palpable contradictions, Defence counsel argued that I should give his client "some leeway" as he was "traumatized by being thrown to the ground" and "it felt as though five officers were involved". Counsel suggests the defendant did not intend to mislead the court but simply expressed an "honest belief" in a dramatic manner. This is, perhaps, the only argument counsel can present; but, it must be said that it is one that highlights concerns about reliability in attempting to address issues of credibility. The defendant testified at his criminal trial. Poetic licence has no place in such solemn circumstances. The defendant's testimony is all the more remarkable as he was present in court when the audio and video record was presented to me. I note, however, that he testified three months after most of this evidence was tendered. I suspect the defendant carelessly ignored the trial record in his eagerness to tell me his version of events. In any event, I cannot overlook the significant inconsistencies between his testimony and facts I know to be true. I reject the defendant's evidence.

[15] Much of the evidence given by the police witnesses is confirmed by same record that undermines that of the defendant. One event that is not captured on audio or video is the "spilled water". This is significant because PC Ford testified it elevated his suspicion of impairment to one of reasonable and probable grounds. The Defence claims the officer lied in denying he caused the water to spill on the defendant. PC Crawford could not corroborate PC Ford on this point. The angle of the camera in the cruiser is such that the video record is incomplete. However, it does not appear that PC Ford lunged at the defendant or made similar such gestures. In all the circumstances, I find that the defendant spilled the water on himself.

Charter Issues

[16] The section 8 motion is based on the claim that the officer did not have reasonable and probable grounds to arrest the defendant. A reasonable and probable ground to arrest has both a subjective and an objective component. The subjective component requires that the officer honestly believe the suspect committed an offence. The objective component means that the officer's opinion must be supported by objective facts: Storrey v. The Queen (1990), 53 C.C.C. (3d) 316 (S.C.C.). Judicial scrutiny of reasonable and probable grounds for a breathalyzer demand must recognize the context within which the police officer's obligation operates. An officer must make a quick but informed decision about whether a driver is impaired. In this context, the grounds needed for a breath demand is not an onerous threshold. It must not be inflated to the context of testing trial evidence. Neither is it to be so diluted as to threaten individual freedom: R. v. Censoni, [2001] O.J. No. 5789 (S.C.J.). In other words, there must be enough to justify laying a charge but this does not mean a prima facie case or proof beyond a reasonable doubt. In this case, I am satisfied PC Ford had reasonable and probable grounds to arrest the defendant and demand he provide a breath sample. In coming to this conclusion I rely on the indicia of alcohol consumption observed by the officers and the defendant's bizarre behaviour.

[17] The indicia of impairment by the defendant include the odour of alcohol, confusion about where his documents were located, inability to drink water without spilling it over his chest and severe mood swings. The officers also noticed blood shot eyes and slightly slurred speech. However, I note that these observations are also consistent with the fact the defendant had been crying and has an accent. The bizarre behaviour includes his immediate and unprovoked hostility to the police and resisting arrest. The arresting officer's grounds are confirmed by subsequent evidence, including the defendant's request for a priest, the failure to understand simple instructions about how to provide a breath sample, and his persistent obstinacy, punctuated by moments of weeping. I find the defendant's demeanour and conduct to be the result of alcohol consumption.

[18] The defendant also claims his right to counsel, pursuant to section 10(b), was violated. Defence counsel concedes his client declined to contact counsel but maintains the police failed to explain the right to him in a meaningful manner; that is, that they failed in their informational duty. The fact that the defendant asked for a Catholic priest when the booking sergeant re-iterated the right to counsel might support the assertion he did not understand and that the police had a duty to better explain. However, the Defence has not persuaded me of this. Indeed, the defendant's testimony undermines his Charter claim; he conceded that PC Ford advised him of his right to counsel and that he replied he did not want one because he was upset the officer had made reference to his ethnicity. It is reasonable to conclude the defendant was being flippant in asking for a priest when the right to counsel was raised again by the booking sergeant. This is consistent with the defendant's antagonistic attitude during his interaction with the police.

Impairment

[19] The offence in question is made out by proof of any degree of impairment, from slight to great; see R. v. Stellato, [1994] 2 S.C.R. 478 (S.C.C.). This does not mean that any abnormal driving will suffice as this would capture common mistakes made every day by sober people. In this case, the defendant was travelling well above the speed limit. This can be explained by the fact the defendant was impaired. However, I am not convinced of that. Motorists who are not intoxicated regularly commit the offence of speeding. In the absence of any other evidence of bad driving, it would not be safe to convict.

Refusal to Provide a Sample

[20] A feigned attempt is the equivalent of a refusal: See R. v. Young, [2007] O.J. No. 1776 (Ont. C.A.). In R. v. Tavangari (2002), 28 M.V.R. (4th) 104 (Ont. C.J.), Justice Kenkel observed that:

In considering whether the Crown has proved beyond reasonable doubt that the accused has refused or wilfully failed to comply with a screening device demand, the court must look at all of the circumstances of the entire transaction between the police officer and the accused.

These cases typically involve conversation between the parties that is likely to be unique, as well as a variety of circumstances which tend to combine in ways that again are particular to the case. There can be no specific rules isolating one factor, such as the number of tests to be conducted, from the other circumstances of a transaction to determine whether there has been a failure to provide a sample. Each case must be individually assessed, looking at all of the circumstances of the transaction between the officer and the accused as a whole, to determine whether the Crown has proved a refusal or failure within the meaning of s. 254(5).

[21] The only explanation offered by the defendant for his failure to provide a sufficient sample is that he did not understand how to do so. Indeed, he testified that it was only at his trial that he realized what had been expected of him. This is significant: Nothing new emerged at trial that could explain this awareness. The only difference is that the defendant was not under the influence of alcohol at trial as he watched the video record.

[22] I note that the defendant flatly refused the approved screening device demand at the roadside. He also refused to comply with the demand in question, to provide a suitable sample to PC Kim, only to rescind that declaration when told it would result in an added charge. The Crown suggests these actions show the defendant never intended to comply and that his attempts to do so were feigned. In my view, that is not a complete answer. I find these outbursts to be reflective of the defendant's angry and stubborn response to the police – an attitude, as already noted, that was fuelled by alcohol. PC Kim told the defendant how to comply in clear and simple terms. The defendant was given many chances to do so.

[23] Poor judgment is a normal consequence of excessive alcohol consumption. Where, as here, a person understands the demand to provide a breath sample, and the consequences of non-compliance, it is no defence to a charge of refusal that intoxication caused him not to fully understand; see R v Masters, [1993] Y.J. No. 68. This is not a case in which the defendant was so grossly drunk that he was physically unable to perform or mentally incapable of comprehending was required of him. The defendant's attempts to provide a breath sample were interspersed with defiance and pleas for more opportunities. Considering all the circumstances of the interaction between the defendant and the officer, I find he refused to comply.

Released: June 9, 2014

Signed: "Justice J. De Filippis"