Ontario Court of Justice
(East Region)
Her Majesty the Queen
v.
Geoffrey Allan Dumont
Before: Justice David M. Paciocco – Ottawa, ON
Reasons for Decision
Released: January 28, 2014
Counsel:
- Ms. S. Fountain for the Crown
- Mr. S. May for Mr. Dumont
I. Introduction
[1] Geoffrey Allan Dumont is charged with impaired care and control of a motor vehicle contrary to section 253(1)(a), and with having care and control of a motor vehicle with more than the legal limit of alcohol in his blood, contrary to section 253(1)(b). Both charges relate to events that occurred in the City of Ottawa on the 17 April 2013. This prosecution was conducted as a blended voir dire to enable the evidence relating to the substantive charges and alleged breaches of sections 8, 9 and 10(b) of Mr. Dumont's rights to be adjudicated efficiently. The impaired driving charge turns on whether the Crown has proved beyond a reasonable doubt that Mr. Dumont's ability to drive was impaired by alcohol and whether he had care and control of his motor vehicle while impaired. The "over 80" charge also depends upon whether the Crown has proved that Mr. Dumont had care or control, and on whether evidential breath test results secured from Mr. Dumont at 2:04 and 2:26 respectively are admissible, and if so, whether the Crown can rely upon the presumption of identity in subsection 258(1)(c) in the Criminal Code of Canada. Both admissibility and the operation of the presumption are challenged by the Charter motions.
The Evidence
[2] It is uncontested that on 17 April 2013 Mr. Dumont was operating a motor vehicle at the intersection of Queen Elizabeth Drive and Catherine Street in the City of Ottawa, and that at approximately 12:00 a.m. he lost control of the vehicle and collided with a traffic island and signpost, damaging the front and front driver's side wheel of the vehicle. The time of the accident cannot be pinned down more precisely.
[3] Mr. Alain Lapensee heard the collision but did not see the accident. The contribution he makes as a witness to this case is that at some undefined time around midnight he heard a motor vehicle collision in the area of the traffic island, observed the implicated vehicle almost immediately thereafter, and saw only one person around the vehicle. After making these observations Mr. Lapensee initially walked away from Catherine Street and then circled back up to Queen Elizabeth Drive, walking by the accident intersection before approaching the police station sometime before 12:30, where Mr. Lapensee reported the accident and summoned the police.
[4] While I believe that Mr. Lapensee was endeavouring to be honest, I cannot rely upon the testimony he gave relating to the condition of the man we now know to have been Mr. Dumont. Mr. Lapensee saw Mr. Dumont from a distance and "assumed" he must be impaired. I believe this impression coloured Mr. Lapensee's testimony. His evidence included observations not noted in the statement he gave to the police. His account about Mr. Dumont's inability to stand is also inconsistent with that observed by the police witnesses who dealt more directly with Mr. Dumont and who noted no unsteadiness on his feet. Mr. Lapensee testified that he went to the police to "make sure [Mr. Dumont] does not walk." He drew conclusions that Mr. Dumont was impaired without sufficient evidence. I believe he may remember his observations to be more dramatic than they actually were.
[5] This case therefore turns on the evidence of Cst. Wightman and Cst. Trepanier for the Crown, and the evidence of Mr. Dumont in his own defence. I have cautioned myself to observe the principles of R. v. W.(D.) in evaluating the evidence in this case, given that Mr. Dumont offered testimony in his defence. I must acquit Mr. Dumont if I believe the exculpatory evidence provided by him, or even if that evidence simply raises a reasonable doubt. Even if I reject his evidence entirely, I cannot convict him unless the evidence I do accept proves his guilt beyond a reasonable doubt, and where accounts of events differ, I cannot simply choose the version I prefer. A trial is not a credibility contest.
[6] Cst. Wightman was the first witness to testify. On 17 April 2013 he was on duty in a marked police cruiser. As he pulled into the police station driveway around 12:30 or so, he was assigned to investigate the nearby accident reported by Mr. Lapensee. Cst. Wightman drove the few hundred metres to the scene. Mr. Dumont agrees with Cst. Wightman that when Cst. Wightman arrived, Mr. Dumont had the car jacked up and was working on its front wheel. Cst. Wightman did not give clear evidence of the precise position of the vehicle but I accept Mr. Dumont's testimony that after coming to a stop on the traffic island, he drove the car to the left side of the road and that is where it was located when Cst. Wightman arrived at approximately 12:35. I also accept Mr. Dumont's evidence that the vehicle was pulled over safely.
[7] Cst. Wightman testified that he had a brief conversation with Mr. Dumont, secured his licence and checked its details on the onboard computer before returning to Mr. Dumont and having a face to face conversation with him. During this conversation Mr. Dumont admitted being the driver and to having consumed alcohol. Cst. Wightman noticed Mr. Dumont's eyes were bloodshot and he could smell alcohol on Mr. Dumont's breath. Despite these observations and the accident Cst. Wightman, an experienced formerly qualified breath technician, did not believe he had reasonable and probable grounds to arrest Mr. Wightman for impaired driving. Cst. Wightman concluded by 12:38, however, that he had reasonable grounds to suspect that Mr. Dumont had consumed alcohol before driving. Cst. Wightman did not have a roadside alcohol screening device with him but arranged for one to be delivered. Cst. Wightman testified that while waiting he explained to Mr. Dumont that he would have an alcohol screening device brought to him, and that Mr. Dumont would be required to perform the test. The two of them stood outside of their vehicles waiting. The alcohol screening device was delivered by Cst. Johnson at 12:42, and at 12:44 Cst Wightman gave the formal alcohol screening device demand. After the machine was prepared and demonstrated Mr. Dumont complied, producing a fail at 12:47. Mr. Dumont was immediately arrested for operating a motor vehicle having consumed alcohol exceeding 80 milligrams of alcohol in 100 millilitres of blood. He was handcuffed and searched and placed in the rear of Cst. Wightman's police vehicle.
[8] Between 12:56 and 12:59 Mr. Dumont was read his rights and given the evidential breath demand. At 1:03 he was transported to the station, arriving a few minutes later. By 1:13 he was paraded before the desk sergeant and searched by special constables and by 1:18 a message had been left for an unavailable lawyer before Mr. Dumont ultimately declined the opportunity to consult counsel.
[9] It was not until 1:35 that Cst. Wightman met with the qualified breath technician, Cst. Trepanier. Cst. Wightman could not explain the 17 minute delay between 1:18 and 1:35 as he had no memory or notes of what happened. Cst. Trepanier explained the delay. She testified that she was not dispatched to the station until 1:11, some 24 minutes after Mr. Dumont had been arrested, and was still preparing to receive the sample during that 17 minute period. She did not know what the delay was in her dispatch. In any event, she was ultimately able to meet with Cst Wightman to receive his grounds for arrest over a seven or eight minute period, 1:34 – 1:41 (Cst. Trepanier's testimony) or 1:35 – 1:43 (Cst. Wightman's testimony).
[10] At 1:54 (Cst. Trepanier's testimony) or 1:56 (Cst. Wightman's testimony) Cst. Trepanier received Mr. Dumont into her custody to process his breath samples. Cst. Wightman offered no explanation for the 13 minute delay between the end of the interview and the delivery of Mr. Dumont to Cst. Trepanier, and Cst. Trepanier could not explain it either. She did not know whether she herself was ready for Mr. Dumont when the interview with Cst. Wightman occurred, or whether she was still preparing for the test at this time.
[11] After receiving Mr. Dumont, Cst. Trepanier entered data into the approved instrument at 1:58 and secured the first sample from Mr. Dumont at 2:04, producing a reading of 183 milligrams of alcohol in 100 millilitres of blood. The second reading was secured at 2:26 producing a reading of 169 milligrams of alcohol in 100 millilitres of blood. Mr. Dumont told Cst. Trepanier in a voluntary statement that he drank 3 to 5, or 4 to 5, beers at home between 4:30 and 8:00 or 9:00 o'clock.
[12] As indicated, Mr. Dumont testified in his own defence. In his testimony Mr. Dumont explained that after he left work that day he was obliged to return briefly during off peak hours to affect repairs related to his work. After watching the hockey game and drinking beers at home he returned to his office on Slater Street in the City of Ottawa, parked his vehicle and worked for a half hour or so. He left work to drive his usual route home when the accident happened. He testified that he was in the process of changing channels on his radio when he collided with the traffic island. He noticed the damage he had done to the road-sign and to his car. He was able to move the car to the side of the road to a safe location in case any cars came along, turned it off and put on the emergency flashers.
[13] Mr. Dumont testified during his evidence in-chief that he realized at that point that if he was "distracted by the radio, any further driving was not in the cards at all." His plan was to contact his brother-in-law who could drive the car if the car was driveable or a tow truck if it was not. If the car was driveable his plan was to have his brother-in-law drive the car to his workplace parking spot where it could be more closely inspected at a later time, and to then walk back to the accident scene with his brother-in-law and leave in his brother-in-law's car. It was while he was removing the front wheel to see how extensive the damage was before deciding which option to pursue that the police arrived.
Analysis
[14] I will begin with Mr. Dumont's Charter claim, which has two components. The first alleges that the roadside sample was illegally secured, since the demand was not made "forthwith" as required by the Criminal Code of Canada. If true, this would violate sections 8 of the Charter as an illegal search, and section 9 of the Charter as an illegal and therefore arbitrary detention. Section 10(b) would be violated as well, since Mr. Dumont was detained during the delay in the demand and was not given his right to counsel without delay. The second Charter claim urges that the evidential breath sample was illegally obtained because it was not taken "as soon as practicable" as required by section 254(3) of the Criminal Code of Canada, violating sections 8 and 9 of the Charter.
[15] I am rejecting the first Charter challenge described, relating to the six minute delay in making the formal alcohol screening test demand after Cst. Wightman formed his grounds to make that demand. While I agree that a six minute delay would not satisfy the "forthwith" requirement of section 254(2)(b) of the Criminal Code of Canada in the circumstances of this case, I am of the view that in this case the conversation Cst. Wightman had with Mr. Dumont before making the formal demand constituted a demand in law. It sufficiently communicated to Mr. Dumont that he was going to be obliged to provide a sample of his breath: R. v. Nicholson (1970), 8 C.C.C. (2d) 170; R. v Flegel (1972), 7 C.C.C. (2d) 55; R. v. Boyce [1997] O.J. No. 1329 (C.A.). I make this finding because Cst. Wightman testified that while they were waiting for the roadside alcohol screening device to arrive, he explained to Mr. Dumont that he was having an alcohol screening device brought to him and that Mr. Dumont would be required to perform the test. Mr. Dumont effectively confirms this. He testified that when he was being questioned by the officers before the device arrived, an officer informed Mr. Dumont of his intention to have the test done. This "demand" was made "forthwith." In any event, even if the conversation had been insufficient to constitute a demand I would not have excluded the evidence on the basis of this breach. I understand that Cst. Whiteman was confused over his obligation under the law, and has habitually mistakenly delayed giving the demand in roadside screening device cases and that his ignorance of his basic legal responsibilities does increase the seriousness of the breach. To be clear, Cst. Whiteman was not acting in bad faith. His laudable efforts to persuade Mr. Dumont to speak to a lawyer show that. This breach, in my view, is of moderate seriousness in all of the circumstances. Meanwhile the impact on Mr. Dumont was negligible. He knew from Cst. Whiteman's casual conversation why he was being detained and this softened the impact of the delayed formal warning. Even without this, the impact of the breach on him would have been transient and insignificant given the short delay involved and that Mr. Dumont was not going to be going anywhere, in any event, given the accident. When the moderately serious breach that had no discernible impact on the Charter rights of the accused is balanced against the negative impact of excluding the reliable evidence in this case, I am of the view that the long-range interest of the administration of justice would be better served by admission than exclusion.
[16] The second alleged Charter breach is more compelling. The evidential breath samples were not taken lawfully because they were not taken "as soon as practicable." As indicated, I was offered no explanation for the 29 minute delay in dispatching Cst. Trepanier to receive Mr. Dumont's breath samples. This lead, in my view, to the 17 minute delay between the time that Mr. Dumont was ready to furnish a sample at 1:18, and the meeting between Cst. Trepanier and Cst. Wightman to discuss the grounds for Mr. Dumont's arrest, at 1:35. During the delay, on the evidence before me, Mr. Dumont must have been sitting idle in custody. I am aware that during this time Cst. Trepanier was in fact readying the machine, but had she been summoned when it was evident that a qualified technician was needed, this delay would probably not have occurred. As also indicated, there was no explanation attempted for the 13 minute delay between the end of the officer's briefing and Mr. Dumont being handed off. There is a total of 30 minutes of unexplained delay. In finding that this delay undermines the "as soon as practicable" requirement I have taken into account that the overall delay between Mr. Dumont's detention at 12:38 and the first sample at 2:04 was not long relative to the two hour period, being approximately 86 minutes. I am also mindful that the police should not be expected to account for every moment but, as intimated, these are significant periods of wholly unexplained delay. It may be that there were perfectly good explanations available for what transpired but I have not been educated by the evidence because the officers failed to note why things were languishing for a material period of delay. I cannot therefore, on the evidence before me, find that the samples were taken from Mr. Dumont "within a reasonably prompt time under the circumstances": R. v. Vanderbruggen, [2006] O.J. No. 1138 at para.12 (C.A.).
[17] The failure by the Crown to comply with the "as soon as practicable" requirement of section 254(3) makes the search illegal and therefore unreasonable under section 8. It also prevents the Crown, where a Charter challenge has been brought, from satisfying the pre-requisites to the evidentiary shortcut provided by section 258(1)(c). Since the Crown cannot, in this case, use the presumption of identity and since no expert evidence was called, there is no evidence before me that Mr. Dumont's blood alcohol level at the time of driving was over the legal limit. I am therefore finding Mr. Dumont not guilty of the charge of having more than the legal limit of alcohol in his body.
[18] The impaired driving charge is more complex. As indicated, it turns on whether the Crown has proved beyond a reasonable doubt that Mr. Dumont's ability to drive was impaired by alcohol, and on whether the Crown has proved beyond a reasonable doubt that he was in care and control of his motor vehicle while so impaired.
[19] Based on the evidence before me I am satisfied beyond a reasonable doubt that Mr. Dumont's ability to operate a motor vehicle was impaired by alcohol. The impairment may have been slight, but I have no doubt it existed.
[20] I make this finding cognizant that based on Mr. Dumont's physical signs Cst. Wightman did not even think he had grounds for an impaired driving arrest. I am also mindful that I cannot rely on Cst. Trepanier's opinion that Mr. Dumont's ability to operate a motor vehicle was slightly impaired, because her opinion was based in part on the Intoxilyzer results, which she does not have the demonstrated expertise to interpret as proof of impairment. I am also aware that on the evidence I do accept that Mr. Dumont's speech was fine, he was coherent and responsive, and there were no issues with his balance. In spite of all of this I find Mr. Dumont's ability to drive was impaired by alcohol because he smelled of alcohol, he admitted consuming alcohol, his eyes were bloodshot and glassy consistent with impairment, his face was flushed as described by Cst. Trepanier, because he was unable to maintain control over his vehicle while performing a simple task of tuning a radio, and because of Mr. Dumont's own opinion, expressed in his testimony, that he should not have been driving at the time. I will begin with Mr. Dumont's admission since this was a point of controversy during submissions.
[21] During his evidence Mr. Dumont attempted to walk the fine line of explaining that even though he did not feel intoxicated or sense any issues with his fitness to drive, he had decided that he should not be driving if he was distracted to the extent he was simply by tuning his radio. During cross-examination it was suggested to him that he realized alcohol had an effect on him. He responded that he did not know if there was an "aha" moment but "at that point I knew I should not be driving a car." He then offered, "I guess knowing I had … beers that perhaps I was not in proper condition to drive." He then attributed his loss of control to his earlier drinking and fatigue.
[22] This, in my view was an admission by Mr. Dumont that his ability to operate a motor vehicle was impaired by alcohol. The realization that the beers contributed to his condition is credible. It is a statement against his interest, and this self-appraisal is supported by the acknowledgment he made in-chief that it twigged on him when he was being questioned by the officers that "maybe this was a trouble situation" and that he did not want to call his brother because his brother was "judgmental." Mr. Dumont was aware that his alcohol consumption contributed to his inattention. I find Mr. Dumont's admission that he perhaps was not in a proper condition to drive, in part because of the beers, to be important evidence.
[23] I am aware that Mr. Dumont also offered the explanation that he was tired. That fatigue contributed to Mr. Dumont's diminished driving ability does not matter in law so long as alcohol is a contributing factor: R. v. Bartello [1997] O.J. No. 2226 (Ont.C.A.). This rule is sensible. Even if fatigue provides the setting in which alcohol more easily diminishes physical acuity and judgment, the accused's abilities are nonetheless impaired by alcohol. I have no doubt that Mr. Dumont's alcohol consumption contributed to his inattention, and to the manner of driving that led to this single vehicle accident.
[24] In sum, his admissions of alcohol consumption and "inattention" leading to the accident, his admission that the alcohol would have contributed to this, and the condition of his eyes and his complexion, combine to persuade me beyond a reasonable doubt that Mr. Dumont's ability to drive was at least slightly impaired, and this is enough in law.
[25] The remaining question is whether he was in care and control of his motor vehicle. It is not contested that Mr. Dumont drove his motor vehicle onto the traffic island. Mr. Lapensee heard the collision and saw a sole male at the accident scene only moments later. Cst. Whiteman saw the damaged sign and debris near Mr. Dumont's car, and the extensive damage caused to Mr. Dumont's vehicle. For his part Mr. Dumont admitted that this happened. As a matter of law and common sense, someone who is driving obviously has care or control over their motor vehicle.
[26] Mr. May urges me not to convict Mr. Dumont based on his driving given that the allegation is impaired care and control, not impaired driving. He relies on the case of R. v Pendleton [1982] O.J. No. 132 (C.A.) in support. First, Pendleton is no longer good law. As the Ontario Court itself commented in R. v. Khawaja 2010 ONCA 862, [2010] O.J. No. 5471 at para. 150, a decision affirmed in the result by the Supreme Court of Canada 2012 SCC 69, [2012] S.C.J. No. 69, Pendelton has "been overtaken by subsequent cases." In making this observation the Khwaja Court rejected the principle that "the Crown cannot seek and obtain a conviction based on a different basis than it presented its case to the court," citing R. v. Drolet, [1989] R.J.Q. 295 (C.A.), affirmed, [1990] 2 S.C.R. 1107. The Court also approved of R. v. Pinceman 2004 SKCA 33, [2004] S.J. No. 134 (C.A.) which held, at para 35 that the law in Pendelton did not survive R. v. Drolet where Justice Lebel, now of the Supreme Court of Canada, rejected the notion that impaired "care and control" and impaired "driving" cannot be treated as included offences because Parliament distinguished between them. The real issue is fair notice. Since someone who is driving is necessarily in "care and control" it is in no way inconsistent with the allegation to convict them of car and control based on proof of driving.
[27] The Khwaja court, at para. 150, explained that in any event Pendelton applied solely where the offence the court relies upon is "on a different occasion than that in regard to which the Crown called evidence in its case in-chief." The events that the Crown presented and relied upon against Mr. Dumont began with the accident and ended with Mr. Dumont's arrest. Mr. Dumont's accident and his alleged care and control following the accident occurred as part of the same general transaction. I am therefore finding Mr. Dumont guilty of impaired care and control based on his act of driving in the condition he was in.
[28] Even had I not taken this position, I am satisfied beyond a reasonable doubt that throughout Mr. Dumont was in care and control of his car. The law of "care and control" remains complex and fact specific after R. v. Boudreau 2012 SCC 56. Care and control consists of "an intentional course of conduct associated with a motor vehicle by a person whose ability is impaired … in circumstances that create a realistic risk, as opposed to a remote possibility, of danger to persons or property": at para. 9. Where an accused is exercising control over a motor vehicle, this realistic risk is met if there is an intention to drive. It can also be met where there is no intention to drive but where there is a realistic risk that the person will change their mind. While R. v. Szymankski 2009 CarwellON 5150 (Ont.S.C.J.) provides a helpful list of factors, that list is not exhaustive nor is it to be used as a checklist. The material issue where an accused person credibly disclaims an intention to drive is whether, on the facts of the case, there is a realistic risk that he might change his mind and use his control over the motor vehicle to do so.
[29] I have no doubt in this case that there was a realistic risk Mr. Dumont would try to do so, setting the vehicle in motion, notwithstanding his testimony that he had abandoned any intention to drive after the accident. First, he was prepared to drive when he left home, in spite of the beers he had consumed. While the accident may have dampened his enthusiasm for doing so, his conduct shows that alcohol consumption cannot be counted on as enough to prevent him from driving. Second, I find that Mr. Dumont was motivated to remove his vehicle from the scene as promptly as he could. I am troubled that he had no intention of reporting the accident. His explanation for not having done so - that he could see the police station - made no sense. He hoped to remove himself from the scene. Third, his proposed plan for leaving without driving was contingent, even if I credit it. Mr. Dumont had not yet spoken to his brother-in-law and would have had no idea at the time whether his plan would fly. I find that if Mr. Dumont could not reach his brother-in-law, or his brother-in-law refused to come and if Mr. Dumont's car proved operable, it is most unlikely he would have called a tow truck instead of driving it the walking distance to his parking lot where he said he was motivated to leave it. In making this finding I am bearing in mind that in R. v. Bourdreau 2012 SCC 56 at para. 48 the Supreme Court of Canada commented that the realistic risk threshold is a "low" one, and I am also bearing in mind the principles in R. v. W.(D.). Mr. Dumont was in care and control even after the accident occurred, in spite of his claim that he had no intention to drive.
[30] I am therefore finding Mr. Dumont guilty under Count 1, contrary to section 253(1)(a) of impaired care and control of a motor vehicle on 17 April 2013 in the City of Ottawa. I find him not guilty of count 2, contrary to section 253(1)(b) of care and control over the legal limit.
Released: January 28, 2014
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The Honourable Justice David M. Paciocco