Ontario Court of Justice

Date: 13 November 2014

Court File No.: Ottawa 14-A9400

Between:

Her Majesty the Queen

— and —

Darryl Larocque

Before: Justice Robert Wadden

Heard on: November 5, 2014

Reasons for Judgment released on: November 10, 2014

Counsel:

Hart Shouldice — counsel for the Crown

Anne-Marie McElroy — counsel for the defendant

WADDEN J.:

[1] Introduction

[1] The accused is charged with offences contrary to ss. 253(1)(a) and 253(1)(b) of the Criminal Code. He brought an application alleging violations of ss. 8 and 9 of the Canadian Charter of Rights and Freedoms and sought to exclude evidence of breath readings pursuant to s. 24(2). At the request of both counsel, the evidence on the application was heard blended with the substantive evidence on the trial.

The Evidence of the Police Officers

[2] Constables Gervais and Corbeil of the Ottawa Police testified that they were working on uniformed patrol on the overnight shift of January 19, 2014. They were inside the store at an Ultramar gas station in the rural south end of Ottawa shortly after 1:00 a.m. when a man, who was a friend of the accused, got in line behind them. The friend was obviously intoxicated and Cst. Gervais asked him if he had been driving. The officer was concerned as the store is in a remote location and it is unlikely anyone would have walked there. The man replied that he had not been driving but had been driven to the location by his friend. The officers completed their purchases, went outside and put their items in their cruisers. Cst. Gervais then approached the only vehicle in the parking lot. Cst. Corbeil followed a few feet behind.

[3] When the officers approached his car, the accused was seated in the driver's seat. There is no dispute he was in care or control of the car.

[4] On approaching the car Cst. Gervais testified that the accused had a blank stare and was looking straight ahead. Cst. Gervais testified that he knocked on the window as he wanted to make sure that the accused was not driving under the influence. In response to the knock the accused slowly opened the driver's door. Cst. Gervais could smell a strong odour of alcohol from the vehicle. The vehicle had not been running, but the keys were in the ignition. The accused took the keys out of the ignition and put them in his pocket, telling Cst. Gervais that he "didn't have anything because the keys were in his pocket". The accused got out of the car.

[5] Cst. Gervais asked the accused if he had consumed any alcohol. Both officers testified that the response from the accused was so slurred it was incomprehensible. All Cst. Gervais could make out was that he said he had nothing to drink. The accused was asked for his documents, which he produced without difficulty. Cst. Gervais asked the accused to walk to his police vehicle. There was nothing out of the ordinary in the balance of the accused. Cst. Gervais had not detected any odour of alcohol coming directly from the breath of the accused.

[6] Cst. Gervais formed a suspicion that the accused had alcohol in his body and asked Cst. Corbeil for his Approved Screening Device ("ASD"). Cst. Gervais made the ASD demand to the accused and administered the test. The accused registered a fail. The officer arrested the accused, made the breath demand and transported him to the police station, where he spoke to legal aid duty counsel. Breath tests resulted in readings of 160 mg/100ml.

[7] Cst. Gervais acknowledged that without the fail on the ASD he would not have had grounds to administer the breath demand. He testified that he initially approached the accused's car as a result of his observations of the friend inside the store, which raised concerns with him that the driver might have been drinking. He did not have any information from the friend that the driver had been drinking. His suspicion that led to the ASD was based on the blank stare of the accused as he sat in the driver's seat, the smell of alcohol from the vehicle and the slurred speech when asked about drinking.

[8] Cst. Gervais acknowledged that the car was on private property and he was not investigating under the authority of the Highway Traffic Act. He was of the view that the accused was detained as of the point that he began questioning him while he was still seated in his car.

Charter Issues

[9] The accused alleges the following breaches of his rights contrary to ss. 8 and 9 of the Charter:

(a) Cst. Gervais lacked articulable cause to investigate the accused, given that his vehicle was located on private property and there was no evidence of driving;

(b) Cst. Gervais lacked reasonable grounds to suspect that the accused had alcohol in his body and therefore the ASD demand was invalid and the seizure of breath samples from the accused were as a result of an unreasonable search; and

(c) the arbitrary detention of the accused resulted in an invalid ASD demand and a breach of his requirement to be advised of his right to counsel.

[10] The accused relies on s. 24(2) of the Charter to seek exclusion of the evidence obtained subsequent to the breaches, in particular the breath readings.

(a) Articulable Cause

[11] Cst. Gervais approached the accused as he sat in a parked car in a parking lot. There is no dispute that a police officer has the authority, pursuant to s. 48(1) of the Highway Traffic Act, to "require the driver of a motor vehicle to stop for the purpose of determining whether or not there is evidence to justify making a demand under section 254 of the Criminal Code." In its written response in this case, the Crown suggests the Highway Traffic Act is not restricted to highways. However, there is authority to suggest that the power under s. 48(1) of the Act only applies to a vehicle travelling on a roadway, not a vehicle in a parking lot. Mr. Justice Doherty gave a qualified opinion on the issue in R. v. Hajivasilis, 2013 ONCA 27 (at para. 13), where he stated that:

… s. 48, which allows a police officer to "require the driver of a motor vehicle to stop" for a specified reason, arguably has application only on highways as defined in the HTA since, by definition, "driver" means "a person who drives a vehicle on a highway". A person driving a motor vehicle on a private parking lot is at least arguably not a driver for the purposes of the HTA.

[12] Cst. Gervais was correct in stating he was not operating under the authority of the Highway Traffic Act. He was acting under the common law power of the police to prevent and investigate crimes.

[13] In this case, Cst. Gervais saw the accused sitting in his car parked at a gas station in a remote rural location shortly after 1:00 a.m. Given that the driver's friend in the store was clearly drunk, the question of whether the driver had been drinking was a legitimate concern for the officer. The only way to get to or from the rural gas station was to drive, so it was obvious that the accused had driven there and would soon drive away. It was not unreasonable for Cst. Gervais to approach the driver, before he started the car to drive away, to determine if he had been drinking. The initial approach was momentary and merely involved the officer having contact with the driver of a parked car. Cst. Gervais did not stop the accused as he was driving. He merely spoke to him as he was parked. As the accused was waiting for his friend to return to the car, the initial approach by Cst. Gervais did not impede his movements in any way.

[14] I find that the actions of Cst. Gervais in approaching and initially speaking to the driver, even in the absence of Highway Traffic Act authority, were proper and appropriate in the circumstances. The only evidence before me is that his actions were motivated by an intention to investigate possible drinking and driving. There was no bias or personal animus that motivated his actions. There is no evidence he had ever previously dealt with the accused or gotten any prior information on him. Speaking to the driver was an investigative action related to motor vehicle issues. It was a preventative investigation authorized by the officer's common law powers. To suggest that he could not approach the driver but had to wait for the vehicle to go in motion on the road, where he would have the authority to make a Highway Traffic Act stop, would be to suggest that the officer would have to allow the public to be put in danger before he could take any investigative steps. I find Cst. Gervais was acting within his authority to speak to the driver and that the initial detention of him was not arbitrary and not a breach of the s. 9 rights of the accused.

(b) Reasonable Grounds for the ASD Demand

[15] Once Cst. Gervais smelled the odour of alcohol coming from the car he had a clear reason to have a concern about the driver consuming alcohol. Once the accused was standing outside the car the officer did not detect an odour of alcohol coming from his breath. He formed a suspicion that the accused had alcohol in his system based on his initial observations of the accused – the blank stare ahead as Cst. Gervais, in uniform, approached him – and the slurred, almost incomprehensible speech of the accused. The presence of the drunk friend in the store and the odour of alcohol from the car provided context that brought alcohol into play as a live issue.

[16] Section 254(2) of the Criminal Code states that if an officer "has reasonable grounds to suspect" that a person has alcohol in his body and has operated or had care or control of a motor vehicle he may, by demand, require the person to provide a breath sample into an approved screening device ("ASD").

[17] There is no dispute that Cst. Gervais subjectively felt he had the grounds to make the ASD demand. The allegation on the Charter application is that the officer's grounds were not objectively reasonable, thus invalidating the demand and rendering the taking of the ASD breath sample a violation of s. 8 of the Charter.

[18] The standard for "reasonable suspicion" is less than "reasonable and probable grounds" and well below "proof beyond a reasonable doubt." In assessing whether the officer had a "reasonable suspicion" for the ASD demand there is not a checklist of factors to consider. For example, it is not a precondition to a valid ASD demand that the driver have the odour of an alcoholic beverage on his breath or admit to having consumed alcohol: see R. v. Zoravkocic, [1998] O.J. No. 2668 (C.A.). Furthermore, "observations of overt indicia of impairment or consumption are not prerequisites to making an ASD demand": see R. v. Singh, [2006] O.J. No. 5133 (Durno S.C.J.). In determining whether there was an objective basis for the officer's suspicion the court can take into account all of the facts known at the time, whether the officer considered them or not: see R. v. Singh at para. 18.

[19] In this case, Cst. Gervais observed the accused sitting in his car staring ahead with a blank look when he, a uniformed officer, approached his car. While this factor may have an innocent explanation, as the accused was waiting for his friend, it is also a factor the officer may legitimately take into account in forming a reasonable suspicion. The smell of alcohol from the car indicated that the accused had been in the presence of alcohol or those who were drinking. The accused's behaviour in pocketing the keys and telling the officer that he therefore had nothing on him was suspicious. It was in this context that the officer heard the strong slurring of the speech of the accused. These factors, even in the absence of the smell of alcohol from the breath of the accused or an admission of consumption, are circumstantial evidence capable of supporting a common sense inference that the accused had been drinking. They are sufficient to hold that the officer's suspicion was reasonable, the s. 254(2) demand was valid and there was not a breach of the Charter rights of the accused.

(c) Right to Counsel

[20] Having determined that the ASD demand was valid it follows that there was not a breach of the accused's right to counsel. The demand was made "forthwith" upon the officer forming his grounds. Cst. Gervais testified that he formed his suspicion at 1:26 a.m. and immediately asked Cst. Corbeil for the ASD, which he had readily available. The demand was read and the test administered at 1:27 a.m.

[21] If the demand is valid and made "forthwith" the requirement to inform the accused of his right to counsel is suspended. In R. v. Quansah, 2012 ONCA 123, the Court of Appeal held (at para. 22) that "[s]o long as the demand is validly made pursuant to s. 254(2) - that is, so long as it is made 'forthwith' - for Charter purposes there is no unjustified seizure or arbitrary detention or breach of the requirement to advise the detainee of his or her right to counsel."

[22] After the accused failed the ASD test at 1:26 he was placed under arrest and read his right to counsel at 1:32. He spoke with legal aid counsel soon after arrival at the police station, just before his breath tests. There is no allegation that after the fail on the ASD the accused was not properly informed of his right to counsel or given the opportunity to exercise it.

[23] Therefore, there was no breach of the accused's right to counsel.

Conclusion

[24] For the reasons stated above, I do not find that there were any breaches of the Charter rights of the accused. The Charter application is dismissed. The evidence of the breath readings is admissible at trial. The accused is found guilty on the count of "over 80" contrary to s. 253(1)(b).

[25] The Crown rightly concedes that there is insufficient evidence to prove the offence of impaired care or control under s. 253(1)(a). The accused is found not guilty on that count.

Released: November 13, 2014

Justice Robert Wadden