Court File and Parties

Court File No.: Central East - Newmarket 13-06946 Date: 2014-11-06 Ontario Court of Justice

Between: Her Majesty the Queen — and — Carlos Tames-Salazar

Before: Justice P.N. Bourque

Ruling on Charter Application

Judgment

Released on November 6, 2014

Counsel:

• Shambavi Kumaresan, for the Crown
• Heather Spence, for the accused, Carlos Tames-Salazar

BOURQUE J.:

Overview

[1] The defendant was operating a pick-up truck southbound on the Highway 400 on Sunday, September 28, 2013 evening. He was observed by a civilian driver, and as a result of a call to 911, he was stopped, arrested and eventually charged with impaired driving and driving with excess alcohol.

[2] The defendant has brought an application under the Charter to exclude the results of the subsequent breath tests from the trial. The matter proceeded (as is usual) in a blended fashion. Ultimately, I must decide whether the officer had reasonable and probable grounds to make an arrest for impaired driving, whether the impaired driving is proven, and whether the crown has proven beyond a reasonable doubt that the first breath test was taken within 2 hours of the last operation or care and control of the motor vehicle.

Darrin Thompson

[3] . . . is an OPP constable with some 8 years' experience. He was on duty on the Highway 400 and received a dispatch at 8:10 p.m. where a civilian reported that a red pick-up truck with two ATV's in the back may be being driven by an impaired driver. The original licence plate report was corrected by a second dispatch. The officer positioned himself on the shoulder of the Highway 400 southbound near Highway 9. He described the evening as clear and dry and the traffic was heavy but moving about 80 kilometres per hour.

[4] He spotted the vehicle which matched the description (including the licence number) proceeding south and he followed, at 8:15 p.m. He noted that the vehicle "jerked" to the left and then weaved onto the lane line. He decided to stop the vehicle and activated his roof lights. He stated it took a while for the vehicle to find room through the traffic and stop. For safety, he went up to the passenger side and saw that the defendant was driving and a young man was in the passenger seat. He smelled alcohol coming from the car so he went over to the driver's side.

[5] He asked for documents and stated that the defendant fumbled some documents and produced 3 expired and one current driver's licence. He asked the defendant to get out of the car and he satisfied himself that the smell (sweet like red wine) of alcohol was coming from the driver. He stated that the defendant fell into him as he got out of the car and he stumbled as he walked to the back of the truck and did not walk in a straight line.

[6] With regard to his notations of times, he stated that he would use his watch or sometimes the clock in the cruiser. He believed that he used his watch for the times. He did not note the time he stopped the vehicle but indicated that it would have been within 2 minutes of his observation of the vehicle at 8:15 p.m. Therefore the last driving would be at 8:17 p.m. and the last time the defendant would have been in the driver's seat would be 8:17 p.m. or 8:18 p.m.

[7] He stated that another officer, Flynn-Morrison, came up at this time. He stated that he formed the opinion that the defendant was operating a motor vehicle while impaired by alcohol and provided his grounds to Flynn-Morrison and they arrested him together. He searched the defendant and saw to some other matters and left the scene at 8:45 p.m. because of an accident call.

[8] The officer was cross-examined about whether the observations of the movements of the truck could have been caused by wind. He did not think so and did not believe it was windy. He was also cross-examined about whether he had checked the load in the vehicle to see if it had shifted. He cited his experience in dealing with motor vehicles and commercial motor vehicles and stated that he would have noticed if the movement had anything to do with a shifting load. He was cross-examined about his observation of a scar on the defendant's knee. He believed that it was an old scar (not a recent injury) and believed he spoke to the defendant about it. He was cross-examined about his observation about the defendant not walking straight but he believed in his observation and stated he was walking to the right and just behind the defendant.

Ron Scott

[9] . . . is a computer software salesman and was in his vehicle with two other persons coming south on the Highway 400 from his cottage. He believes the weather was nice and he did not recall any wind. He stated that he saw a red pick-up truck in front of him in the far left (of three) lanes. He stated that he saw the vehicle drift over to the left and almost hit the guardrail and then quickly move right halfway into the right lane. He stated that other traffic cleared away from the right lane location as this movement happened over 10 times. They followed for about 5 minutes and a passenger in the car called 911 and they stayed on the phone line until the car was pulled over by an OPP car, some 15 minutes later. He did not notice the licence number of the vehicle and while he remembered that there were items in the back of the pick-up truck, he could not say what they were.

[10] He stated that he believes that the time of the incident was about 8:00 p.m.

Marik Kxenycz

[11] . . . is the qualified breath technician. He was on duty and summoned to the Aurora Detachment to do a breath test on the defendant. His timelines are as follows:

Time	Event
20:23	Notified that he would be required to do a breath test. He was on the road and had to return to Aurora OPP.
20:45	He arrived at Aurora OPP.
21:00	He did the diagnostic test.
21:03	He did a calibration check.
21:05	He did a sample test of his own breath.
21:07	He did a flow sensor test.

[12] He was satisfied at this point that the device was operating properly and that it was ready to receive the breath of the test subject. At some point, he received the grounds for arrest from Constable Flynn-Morris. At 21:57, the defendant was brought into the breath room. The officer noted that the defendant's eyes were glassy and bloodshot and he had a cut on his knee but it did not appear to be serious. The defendant also stated to the officer that he had a sore right knee. The officer did not know why it was some 50 minutes after his device was ready to perform the tests that the defendant was brought in.

Time	Event
21:59	He read the secondary caution.
22:00	He read the breath demand.
22:09	The first sample was taken with a reading of 134 milligrams of alcohol in 100 millilitres of blood.
22:11	The officer began to complete the alcohol influence report.
22:31	The second sample was taken with breath readings of 128 milligrams of alcohol in 100 millilitres of blood.

Dana Flynn-Morris

[13] Is an OPP officer with 2 years' experience. She heard the dispatch and positioned herself on Highway 400 southbound just below Highway 88. The weather was clear and 17 degrees some two hours earlier. Her recollection to the timing is as follows:

Time	Event
20:12	She heard the dispatch about a complaint about an impaired driver. The complaint said that the car (a red pick-up truck) had been weaving in its lanes - over the air Officer Thompson indicated that he was following the red pick-up and could see it weaving.
20:19	Officer Thompson said that he had stopped the vehicle
20:21	Officer arrived and saw officer Thompson beside the red truck and saw Thompson helping the defendant out of the vehicle and helped him walk to back of truck. Thompson was holding his arm. Did not see anyone else in the vehicle. Witness approached and could smell alcohol from defendant's breath. Driver looked at witness and was having a hard time focusing on the witness. She asked the driver if he had anything to drink and there was no response. The driver had a large smile and grin on his face. The defendant was walked back to the witness's cruiser with Thompson still holding on to him.

[14] The witness concluded that the defendant was operating a motor vehicle between 2012 and 2019 (from time of dispatch to time of Thompson stopping vehicle) and was impaired by alcohol. The grounds as set out by the officer were as follows:

(a) Traffic complaint about a vehicle weaving;

(b) Officer Thompson stated that he saw the defendant vehicle weaving;

(c) Saw defendant exit seat and had to be assisted by officer;

(d) Appeared to be unsteady;

(e) Could smell an odour of alcohol; and,

(f) Defendant could not focus his eyes.

[15] The witness arrested the defendant for impaired driving. Officer Thompson placed cuffs on the defendant and searched him and placed him in the back of the witness's cruiser.

Time	Event
20:25	The defendant was in the back of the cruiser. The caution and rights to counsel and breath demand were read. The defendant indicated that he did not understand and spoke Spanish. The officer called dispatch and asked for a Spanish officer to assist at the station.
20:39	Officer left the scene for the Aurora detachment.
20:58	Officer got to the station. Met by officer Lopez.
21:06	Officer Lopez read the rights to counsel and caution and breath demand in Spanish. - the defendant wished to speak to a Spanish duty counsel. The witness was present throughout.
20:12	The defendant was placed in a cell.
21:17	The officer called duty counsel.
21:29	Call back from duty counsel and the officer explained that the defendant needed a Spanish translator
21:39	Got a call back from Spanish Translation service through duty counsel.
21:44	Defendant was on the phone to duty counsel and it was complete at 21:53.
21:53	The witness spoke to the defendant who advised that the defendant was having problems with his legs. The witness stated that this was the first time she heard that the defendant was having problems with his legs, and he stated that he had a problem with his leg since he was 7 years old. The witness stated that he was unsteady on his feet and they pushed him into the breath room on a chair.
21:56	The witness provided grounds to the breath tech. The officer did not include in these grounds the issues of the grin and lack of focus at the roadside.
23:36	The witness was given the results from the breath tech.

Leslie Lopez

[16] . . . is a York Regional Police officer with 3 years' experience. He is a native Spanish speaker and came to provide translation assistance to the OPP. He arrived at the station and waited for the arrival of the defendant and the officer. When they arrived, he provided rights to counsel, the breath demand and caution. He believed the defendant understood and the defendant did not request his own counsel but wished to speak to a Spanish counsel.

[17] There was some discussion about the defendant's leg. The witness stated that the defendant spoke of being on a motorcycle but can't recall if the witness said that he had fallen off the motorcycle. He also pointed out some swelling on his leg and the witness believed that Officer Flynn-Morris was there at the time.

[18] He did not make any notations of impairment, but explained that he did not think it was his duty to make notations on that issue.

Did the officer have reasonable and probable grounds to arrest the defendant for impaired driving?

[19] The defendant asserts that the officer did not possess the subjective or the objective grounds to make an arrest of the defendant for impaired driving.

[20] Officer Flynn-Morris stated that the following information was available to her when she formed her grounds to arrest the defendant:

(a) The call over dispatch from a civilian witness which included the information that the defendant was "weaving";

(b) The information also received over the air from officer Thompson that he observed the defendant to be "weaving";

(c) The observation that she made that the defendant was unsteady on his feet coming out of the truck and walking while being held by Officer Thompson;

(d) The observation that the defendant's breath smelled of an alcoholic beverage;

(e) The observation that the defendant was not focusing upon her when she was speaking to him and that the defendant was "grinning" which she found to be an unusual.

[21] The defence argues that since the officer did not include the last indicia noted above in the grounds she gave to the breath technician, that this indicia should not be considered. I disagree. These indicia were contained in her notes. She related them in-chief. She did not resile from them in cross-examination. I find that they were in her mind when she formed her grounds.

[22] With regard to the walking observations, the defence accepted that at that point, she considered them for her grounds but I should exclude those observations in the final analysis of the charge of impairment.

[23] It has been stated many times in R. v. Censoni, [2001] O.J. No. 5189 and other cases that the proof of grounds to arrest for impaired driving is not an onerous burden and should not be equated with proof beyond a reasonable doubt at trial. The fact that some of these indicia may be attributed to some other explanation also does not take them out of the panoply of factors that an officer is entitled to consider in her decision to arrest for impaired driving. Taking all of the factors known to the officer, I believe that she did possess the appropriate subjective and objective grounds to make and arrest for the charge of impaired driving. The Charter challenge is therefore dismissed.

Has the crown proven beyond a reasonable doubt that the first breath test was taken within two hours of the defendant's last driving or care and control of the automobile?

[24] As per section 258(1)(c) of the Criminal Code, where the first test is taken within two hours of the "time the offence was alleged to have been committed" then the Crown can rely upon the presumption of identity, and the readings at that time are taken to be the breath readings at the time of the offence.

[25] The defence asserts that unless I am satisfied beyond a reasonable doubt that the first test was indeed taken within that two-hour window, then I cannot apply the presumption of identity to the breath readings.

[26] Officer Thompson stated that he first saw the defendant's vehicle at 20:15 hours and that he stopped the vehicle at 20:16 at the earliest. He did not specify when the defendant turned off the vehicle and indeed stepped out of the vehicle. Officer Flynn-Morris states that at 20:19 she got a dispatch saying that officer Thompson had stopped the vehicle. Officer Flynn-Morris states that she arrived at 20:21 and at that time she saw the defendant getting out of his vehicle.

[27] Therefore the "time that the offence was alleged to have been committed" was as early as 20:16 and as late as 20:21. There was no evidence about any synchronization of watches. The first breath test was taken at 22:09.

[28] In R. v. Rajeswaran, [2003] O.J. No. 2210, Duncan J. used this non-synchronization, a six-minute window to the two-hour limit and uncertainty as to determining the time of the offence to be left with a reasonable doubt. In R. v. King, [2008] N.N. No. 99, a two-minute window left a doubt. In R. v. Khaliwal, [2004] O.J. No. 5783, a seven-minute window did not leave the court in doubt.

[29] Without some difficulty expressed on the evidence as to the accuracy or otherwise of various timepieces, I will not speculate as to whether synchronization was a live issue. I will assume that police officers on traffic duties are aware of making observations and pinpointing the times of their observations. That does not lead to perfection, but I cannot assume or assign some sort of range of error which I should apply in this or any other case.

[30] If the last time of the offence was 20:16 then the two hour limit was met with 7 minutes to spare. If the last time of the offence was 20:21, then there was greater time to spare. In its best situation for the defence, does this 7 minute window leave me with a reasonable doubt about whether the test was taken within the two hour limit? It does not. Once I have made that finding, then I have no discretion other than to apply the law as it is written and apply the presumption of identity.

[31] The defendant will be found guilty of the charge of driving with a blood alcohol limit at 20:16 of 120 milligrams of alcohol in 100 millilitres of blood.

Has the crown proved beyond a reasonable doubt that the defendant is guilty of impaired driving?

[32] I have recited all the evidence above with regard to the issue of impaired driving. I accept that Officer Flynn-Morris noticed a lack of focus in the defendant's eyes and a grin. With regard to the issue of the defendant walking, upon a review of all of the evidence I believe that I am not convinced that such observations of his walking at the roadside or anywhere else were as a result of impairment as opposed to being the result of some injury, either old or new, or a combination of the same.

[33] I do, however, place weight in my deliberations on the evidence of the civilian witness Ron Scott who followed the defendant for some 20 minutes. He saw him drift over to the left and almost hit the guardrail and then quickly move right and go halfway into the right lane. He describes that similar motions happened some 10 times. He denied the suggestion that perhaps wind could had been a factor.

[34] That uncontested observation is strong evidence, coupled with the other indices of impairment noted by officers Thompson, Flynn-Morris and the breath tech, that the defendant was at least slightly impaired by the consumption of alcohol. Such evidence in its totality, leads, in my opinion to my conclusion that the Crown has proved the impairment of the defendant beyond a reasonable doubt.

[35] The defendant will also be found guilty of the offence of impaired driving.

Signed: "Justice P.N. Bourque"

Released: November 6, 2014