Court File and Parties

Court File No.: 11-15199 Brampton

Date: November 7, 2014

Ontario Court of Justice

Central West Region

Between:

Her Majesty the Queen

— and —

Muhammad Nadeem

Before: Justice Richard H.K. Schwarzl

Heard on: June 7 and October 8, 2013; June 5 and October 21, 2014

Reasons released on: November 7, 2014

Counsel:

Mr. P. Maund and Ms. Stackhouse for the Crown

Mr. J. Rabinovitch for the Accused

SCHWARZL, J.:

1.0: INTRODUCTION

[1] The Accused, Mr. Muhammad Nadeem, is on trial for the criminal charges of impaired driving and driving with excess blood alcohol stemming from an incident in Mississauga in the late evening hours of November 25, 2011.

[2] There are five issues for me to consider. First, did the police have reasonable grounds to make a breath demand? Second, was the breath demand made forthwith? Third, were the breath samples taken as soon as practicable? Fourth, were the breath tests taken within two hours of the alleged offence? Lastly, has the Accused's impairment by alcohol to drive a motor vehicle been proven beyond a reasonable doubt?

2.0: THE EVIDENCE

2.1: Prosecution Evidence

2.1.1: Malcolm London

[3] Malcom London has been a member of the R.C.M.P for nearly thirty years. After he finished working at 11:00 p.m. on November 25, 2011 he headed home by driving his personal vehicle. As he drove, he noticed the traffic was light, the weather was clear, and the visibility was good.

[4] At around 11:40 p.m. he saw the passenger side of a white subcompact car about a hundred feet ahead of him and saw it strike the median on an off-ramp. Mr. London told the police shortly after the event that it was the driver's side of the car that struck the median but in his testimony he said that he made a mistake on this point.

[5] The car wound up going the wrong way for a short time, then stop and turn around to continue the right way. Mr. London pulled over to watch what happened next, which was the white car drove northbound on Dixie Road with a flat front passenger tire, then turn eastbound onto Sheridan Drive where it did a three-point turn and drove westbound on Sheridan past Mr. London. Mr. London signalled the driver with his flashlight to get his attention to let him know that his tire was flat but the driver just stared straight ahead without reacting while driving at about 10 km/h before coming to a stop at the first red light. Mr. London agreed that he temporarily lost sight of the car for a short time but believed that the car he saw strike the median and get a flat tire was the same white car with damage and a flat tire that was operated by the Accused.

[6] When the white car halted for the traffic light, Mr. London pulled up beside it, stopped, got out and approached the driver's door of the stationary vehicle being operated by the Accused, who was the sole occupant of the vehicle. Mr. London shone his flashlight at the Accused, knocked on his window and spoke loudly to him about the flat tire. If the window was down at all, it was only partially open. The Accused was unresponsive to London but appeared focussed on a handheld device, being either a phone or a GPS. Mr. London agreed with the suggestion that given the slow driving, the three-point turn, and the use of a handheld device that it was possible that the Accused was lost and possibly distracted while driving.

[7] Mr. London asked the Accused more than once if he had been drinking. After a delay, the Accused said that he had. At this point, Mr. London identified himself to the Accused as a police officer. He told the Accused he thought that he was driving while impaired and told him to put his car into park. The Accused did not comply with this direction. Coincidental to all of this, a Peel Police car happened to drive by. Mr. London flagged it down, told the officer everything he saw and then allowed that officer, P.C. Rodziewicz, to take over.

2.1.2: Thomas Rodziewicz

[8] Thomas Rodziewicz is a police officer with the Peel Regional Police Services. On November 25, 2011 he was on general traffic patrol. At around 11:33 p.m. he noticed a man, later identified as Mr. London, standing next the Accused's motor vehicle and waving at the officer. P.C. Rodziewicz stopped and was told by Mr. London that he was an off-duty R.C.M.P. officer who thought that the Accused was impaired after following his car and seeing it hit a curb and driving the wrong way. P.C. Rodziewicz recalled that Mr. London told him the Accused hit a curb, almost hit some cars, and that the Accused was weaving all over the road. Having witnessed no driving himself, P.C. Rodziewicz relied entirely upon the information supplied by Mr. London with respect to how the Accused operated his motor vehicle.

[9] After speaking with Mr. London, P.C. Rodziewicz went to the driver's door where he found the Accused behind the wheel. P.C. Rodziewicz smelled alcohol on the Accused's person and noticed his eyes were bloodshot, he spoke with an Indian accent but his speech was slurred, his pants were undone with his belt off, and the Accused appeared to have urinated his pants and had vomited. Initially, P.C. Rodziewicz said the Accused had thrown up on himself, but later testified the vomit was on the driver's seat, consistent with his evidence that he noticed that the driver's seat appeared soiled. The officer also saw the car was damaged but made no notes and had no memory of the particulars of that damage. P.C. Rodziewicz did not observe the Accused to suffer from any problems with his coordination.

[10] Based on the entirety of the circumstances to that point, including the information provided by Mr. London and his own observations, P.C. Rodziewicz believed the Accused was impaired by alcohol and within two minutes of arriving at 11:33 he arrested the Accused for impaired driving. P.C. Rodziewicz then called dispatch for backup to assist in towing the Accused's car. He then spoke to Mr. London again and searched the Accused's car.

[11] At 11:44 p.m. P.C. Rodziewicz turned his attention back to the Accused and read him his rights to counsel, in response to which the Accused said, "Please sir, no charge." At one point, it appeared the Accused did not understand his rights so the officer went over them again in small chunks. The Accused kept saying, "Please sir, one chance." The delivery of rights to counsel was completed at 11:46 p.m. P.C. Rodziewicz testified that the Accused never said he did, or did not, want to speak with a lawyer.

[12] At 11:47 P.C. Rodziewicz provided the Accused with a primary caution.

[13] At 11:49 P.C. made a breath demand upon the Accused, who responded, "Please sir, I am begging you."

[14] After making the breath demand, P.C. Rodziewicz radioed a request to have a RIDE officer attend to assume carriage of any further investigation of the matter. P.C. Rodziewicz did this because his evening was very busy and he hoped that the RIDE officer would free him up to take other police calls. The officer did not recall why he felt the shift was a busy one for him. P.C. Rodziewicz also sought to rely upon the expertise of RIDE offices in such cases. When he called for a RIDE officer, P.C. Rodziewicz was not sure how long it would take one to arrive.

[15] Within a short time, two officers arrived. The first was P.C. Hatcher, and the second was P.C. Pappis, who is a member of the RIDE unit.

[16] At 12:05 a.m. P.C. Rodziewicz briefed P.C. Pappis on the investigation to date and turned the Accused over to him to continue the investigation.

2.1.3: Mitchell Hatcher

[17] Mitchell Hatcher is a Peel Regional Police Services officer. At around 11:33 p.m. on November 25, 2011 he was on general patrol when he saw P.C. Rodziewicz's cruiser stopped with its emergency lights activated. P.C. Hatcher went to investigate. On his arrival, he saw P.C. Rodziewicz speaking to Mr. London. P.C. Rodziewicz then told him that he had a situation involving an impaired driver. Together, they approached the Accused's motor vehicle where the Accused was seated behind the wheel. Hatcher noticed that the Accused's car had a flat front passenger tire and what appeared to be vomit on the interior of the driver's side door. He also saw a GPS and cell phone in the centre console and a baby seat in the rear.

[18] P.C. Hatcher watched the Accused get out of his car. The Accused was heavily intoxicated by alcohol, demonstrating extreme unsteadiness on his feet, slurred speech, and the smell of alcohol. P.C. Hatcher did not recall a heavy accent but was sure the Accused's voice sounded intoxicated. P.C. Hatcher was afraid the Accused might fall over. After P.C. Rodziewicz arrested and cuffed the Accused, P.C. Hatcher searched him and escorted him to Rodziewicz's cruiser.

[19] Immediately afterwards, P.C. Hatcher took a statement from Mr. London and dealt with seizing and towing the Accused's car.

2.1.4: Pawel Pappis

[20] Pawel Pappis is an officer with the Peel Regional Police Services. On November 25, 2011 he was a member of the RIDE unit, specializing in the investigation of drunk driving incidents. At 11:45 p.m. he received a request to attend P.C. Rodziewicz's location, which he did at midnight. P.C. Pappis said that it is common for road officers to request a RIDE officer to assume carriage of impaired driving investigations. P.C. Pappis also recalled that P.C. Rodziewicz told him he was busy in his patrol area.

[21] On his arrival, P.C. Pappis saw the Accused in P.C. Rodziewicz's cruiser. P.C. Rodziewicz then brought P.C. Pappis up to speed on his investigation to that point, including arresting him. Pappis was told by Rodziewicz that the Accused had driven in the wrong lane, hit a curb, deflated a tire, was waved down by a motorist, had urinated himself, thrown up on himself, was unsteady on his feet, had red rimmed eyes, slurred speech and the odour of alcohol on his breath. P.C. Pappis also spoke to Mr. London and received information from him.

[22] At 12:05 a.m. P.C. Pappis re-arrested the Accused for impaired driving. In so doing, he made his own observations of the Accused which included vomit on himself, red rimmed eyes, the odour of alcohol, and a dishevelled appearance. He saw clear signs of impairment in the Accused. Consequently, P.C. Pappis brought the Accused to his cruiser. While escorting him there, P.C. Pappis noticed that the Accused's pants were falling off of him and that he was very unsteady on his feet and it appeared that he might fall down without the officer's support, which he provided.

[23] At 12:05 P.C. Pappis radioed a request of a qualified technician and was told to attend 11 Division. Between 12:05 and 12:07 P.C. Pappis reiterated rights to counsel to the Accused, who said he wanted to speak with a lawyer.

[24] At 12:07 P.C. Pappis made a breath demand upon the Accused, who said he understood it.

[25] At 12:18 a.m. P.C. Pappis left the scene with the Accused and drove him straight to 11 Division where they arrived at 12:27 a.m. The sallyport was very busy causing a delay until 12:43 when the Accused was brought inside the station.

[26] At 12:45 a.m. P.C. Pappis called duty counsel on behalf of the Accused. Duty counsel called back at 1:00 a.m. at which time the Accused spoke to the lawyer in private until 1:12 a.m. While the Accused was on the telephone, P.C. Pappis provided his grounds to P.C. Pinheiro, the qualified technician.

[27] While inside the police station, P.C. Pappis observed that the Accused continued to smell of alcohol, had a pale face, slurred speech, red eyes, dilated pupils, and dishevelled clothes which where stained with vomit and urine on his pants.

2.1.5: Carlos Pinheiro

[28] Carlos Pinheiro is a qualified technician with the Peel Regional Police Services.

[29] At around 1:01 a.m. on November 26, 2011 P.C. Pinheiro received grounds from P.C. Pappis regarding the Accused. Pinheiro was told that an eyewitness saw the drive a car into a curb and then drive on a damaged tire. He was also told that another officer spoke with the Accused who had alcohol on his breath, red eyes, slurred speech, and vomit inside the car. That officer formed grounds to arrest the Accused of impaired driving and after arresting him turned him over to P.C. Pappis. Pappis told the qualified technician that he noticed that the Accused was unsteady on his feet, had alcohol on his breath, and had red glossy eyes causing him to believe that the Accused was impaired to drive.

[30] At 1:12 a.m. the Accused was brought into the breath room and placed in P.C. Pinheiro's custody. The qualified technician then immediately provided the Accused a primary caution, a secondary caution, and his own breath demand, all of which the Accused understood.

[31] At 1:25 a.m. the Accused provided a suitable sample of his breath directly into an approved instrument operated by P.C. Pinheiro. The sample registered a blood alcohol concentration of 157 milligrams of alcohol per one hundred millilitres of blood.

[32] At 1:50 a.m. the Accused provided a second suitable sample of his breath directly into the approved instrument. This sample registered a blood alcohol concentration of 155 milligrams of alcohol per one hundred millilitres of blood.

[33] While in the breath room, P.C. Pinheiro made a number of observations of the Accused including an odour of alcohol on his breath, watery and bloodshot eyes, normal pupils, a soiled shirt, and a Pakistani accent. Based on the entirety of his dealings, P.C. Pinheiro concluded that the effects of alcohol on the Accused were noticeable and that his ability of operate a motor vehicle was impaired by the consumption of alcohol.

2.2: Defence Evidence

2.2.1: Mohammad Nadeem

[34] At the time of this incident Mr. Nadeem was the owner and operator of a family restaurant. On November 25, 2011 he catered a wedding anniversary party there until around 9:30 p.m. The guests were acquainted with him so Mr. Nadeem not only served the party, but also joined them. He consumed one or two beers with the party. After the party he cleaned up and left around 11:00 p.m.

[35] When he drove away from the restaurant the Accused felt fine. He said the alcohol he had consumed had no effect on him whatsoever. He did not take his regular route home because he was running late. He took what he thought was a shortcut by following a map on his GPS program on his cell phone. He had trouble reading the map and driving at the same time. At one point he dropped his phone and as he picked it up his car struck a curb, causing a flat. He did a u-turn to find a safe place to stop. He did a three-point turn and pulled over. By the time he stopped, he was lost.

[36] When the Accused stopped, a man came up to the car and knocked on his window, which he opened right away. The man said that he was a policeman. Mr. Nadeem said, "What's up?" The officer asked if he had been drinking to which Mr. Nadeem replied, "I drank a long time ago." He was then arrested and handcuffed.

[37] Mr. Nadeem has a wound on his stomach, which he showed in court. His stomach has what appears to be a mark the size of an orange on his lower abdomen. Mr. Nadeem testified that when he drives, the buckle of his belt rubs on his stomach. To ease the discomfort, he drives with his belt and pants undone. Mr. Nadeem testified he explained this to the officer and that the officer allowed him to buckle up his belt. However, he also testified that when he got out of his car, his pants were at his feet because they fell down forcing him to pull them up.

[38] Mr. Nadeem denied vomiting. He said that he was chewing paan while driving. Paan is a leaf commonly consumed in South Asian culture. Like tobacco, paan can be juicy and spitting is common while chewing it. The expressed residue is reddish in colour. Mr. Nadeem said he forgot to bring a spittle container when he left work because he was tired. He said that at every stop, he opened his door and spit out. He then said he only stopped and spat once. Mr. Nadeem believed he made had got some paan spittle on his car, but not on his clothes. His clothes were dirty from spices and curry from work.

[39] Mr. Nadeem denied urinating his pants. He said that he was wearing his work clothes and that while cleaning up at work he splashed water on his pants.

3.0: ISSUES AND ANALYSIS

3.1: Did P.C. Rodziewicz have reasonable grounds to make a breath demand?

3.1.1: Positions of the Parties

[40] The position of the defence is that P.C. Rodziewicz did not have reasonable grounds to make a breath demand because of what were described as significant discrepancies between Mr. London's evidence and that of the officer. Furthermore, the defence submits that P.C. Rodziewicz made some observations that were consistent with impairment, but not others that one would expect. Lastly, it was submitted that P.C. Rodziewicz failed to consider exculpatory factors such as the concession by Mr. London that the Accused may have been lost and distracted by his GPS.

[41] The Crown submits that there was a more-than-ample basis upon which P.C. Rodziewicz could make a breath demand. The Crown submits that even if there were innocent explanations and even if P.C. Rodziewicz was wrong in his assessment of the situation, his belief was nevertheless reasonable.

3.1.2: Applicable Legal Principles

[42] Grounds to arrest or to make a breath demand must be honestly and subjectively held by the officer and his honest belief must be objectively justified: R. v. Shepherd, 2009 SCC 35; R. v. Bernshaw, 95 C.C.C. (3d) 193 (S.C.C.) at p. 216; R. v. Storrey, 53 C.C.C. (3d) 316 (S.C.C.); R. v. Bush, 2010 ONCA 554.

[43] There is no requirement that there be direct evidence of alcohol consumption either through observation of the individual or by statement from him or her, as opposed to a reasonable inference, in order to satisfy the requirement of reasonable and probable grounds: R. v. Heidemann, [2002] O.J. No. 2114 (S.C.J.); R. v. Costello, [2002] O.J. No. 93 (C.A.) at ¶ 2.

[44] The officer is not required to establish a prima facie case for conviction before making the arrest, or to consider all of the alternative explanations for the observed conduct: R. v. Mitchell, [2004] O.J. No. 435 (S.C.J.) at ¶10; R. v. Bush, supra; R. v. Shepherd, supra; R. v. Wang, 2010 ONCA 435.

[45] "Reasonable grounds" is essentially an opinion. As such, the belief, based on perceived facts, is frequently a compilation of a state of facts that are too subtle and complicated to be narrated separately and distinctly. In dealing with probabilities relating to human behaviour, a trained officer is entitled to draw inferences and make deductions based on his experience: R. v. Censoni, [2001] O.J. No. 5189 (S.C.J.).

[46] The Court must consider the totality of the evidence for the witness' reasonable ground to believe the subject is impaired, not any individual sign on its own: R. v. Huddle, 1989 ABCA 318; R. v. Saulnier, [1990] B.C.J. No. 161 (C.A.); R. v. Elvikis, [1997] O.J. No. 234 (Gen. Div.) at para. 24; R. v. McMillan, [2003] O.J. No. 4284 (S.C.J.).

[47] While an officer must take into account all information available to him and discard only information that he has reason to believe is unreliable, he is not obliged to engage in a judicial weighing of the items in favour and against his belief: R. v. Censoni, supra, R. v. Golub, 117 C.C.C. (3d) 193 (Ont. C.A.), R. v. Lindsay; R. v. Colbourne, 157 C.C.C. (3d) 273 (Ont. C.A.).

3.1.3: Analysis

[48] Malcolm London testified that he saw the Accused's motor vehicle strike a median or curb, go the wrong way on the road, drive of a flat, not stop promptly despite the flat, and drive unusually slow. He also said that the Accused was unresponsive to a flashlight in the face and knocking at the window, and was delayed in his responses when spoken to. He said the Accused admitted to drinking alcohol. I find that Mr. London reasonably believed the Accused was drunk and driving.

[49] P.C. Rodziewicz testified that Mr. London told him that the Accused was impaired and that the Accused had hit a curb, drove the wrong way, was weaving, and almost hit other cars.

[50] While there are some discrepancies between the evidence of Mr. London and P.C. Rodziewicz I find that P.C. Rodziewicz nevertheless got it right; that is, he subjectively believed that based on what Mr. London told him, the Accused was driving erratically while he intoxicated by alcohol. Given the totality of the evidence, it was entirely reasonable for P.C. Rodziewicz to hold this belief.

[51] P.C. Rodziewicz did not take into consideration that the driving of the Accused could have been caused not by impairment, but by distraction and/or by being lost. The evidentiary record in this case does not contain any evidence that the potential or reality of being lost or distracted was brought to P.C. Rodziewicz's attention either by Mr. London or by the circumstances. It would appear that the issue of being lost of distracted arose for the first time at trial. Therefore, P.C. Rodziewicz could not have been expected to consider something he did not appear to be aware of.

[52] In any case, while some of the Accused's behaviour may be explained by being lost or being distracted, it was entirely reasonable in the circumstances for the officer to believe that the Accused's behaviour was the product of intoxication by alcohol. Indeed, P.C. Rodziewicz's overall and reasonable belief that the ability of the Accused to operate a motor vehicle was impaired by alcohol was also based upon, and reinforced by, his own observations of the Accused's intoxication. P.C. Rodziewicz's assessment was shared by, and consistent with, Mr. London, P.C. Hatcher, P.C. Pappis and P.C. Pinheiro, each of whom made their own independent conclusions that the Accused was too drunk to drive.

[53] Even if some of P.C. Rodziewicz's observations and recollections were wrong (for example if the purported vomit was in fact paan spittle, and that there was no evidence the Accused nearly hit other cars), this does not in any way detract from either the subjective or objective nature of his reasonably held view that the Accused's ability to operate a motor vehicle was impaired by the consumption of alcohol.

[54] I am well satisfied on the totality of the evidence that P.C. Rodziewicz had reasonable grounds to make a breath demand. There is no breach of section 8 of the Charter.

3.2: Was the breath demand made by P.C. Rodziewicz made "forthwith?"

3.2.1: Positions of the Parties

[55] The defence submits that the breath demand made by P.C. Rodziewicz was not made forthwith as required by the Criminal Code as it was not made until twelve minutes after arresting the Accused for impaired driving, thereby violating the officer's statutory duties and the Accused's Charter rights.

[56] The Crown submits while there is a gap between making the arrest and making the breath demand, P.C. Rodziewicz's demand was nevertheless made forthwith in all of the circumstances.

3.2.2: Applicable Legal Principles

[57] As of 2008, section 254(3)(a)(i) of the Criminal Code provides that:

(3) Where a peace officer believes on reasonable and probable grounds that a person is committing, or at any time within the preceding three hours has committed, as a result of the consumption of alcohol, an offence under section 253, the peace officer may, by demand made to that person as soon as practicable, require that person to provide then or as soon thereafter as is practicable

(a) To provide, as soon as practicable,

(i) Samples of breath that, in a qualified technician's opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood.

(emphasis added)

[58] The Criminal Code thus provides police officers flexibility in the timing of a breath demand by allowing it to be made as soon as practicable as opposed to forthwith (or immediately) at the law used to require.

[59] "As soon as practicable" means "within a reasonably prompt time in all of the circumstances" and does not mean either immediately or as soon as possible: R. v. Singh, 2014 ONCA 293; R. v. Vanderbruggen; R. v. Squires; R. v. Letford, [2000] O.J. No. 4881 (C.A.); R. v. Price, 2010 ONSC 1898 at ¶ 14 – 21.

3.2.3: Analysis

[60] In the case at bar, P.C. Rodziewicz testified that within two minutes of encountering the Accused at 11:33 p.m. he formed his grounds to arrest the Accused for impaired driving and in fact arrested him at that moment. Therefore, the arrest was at or around 11:35 p.m.

[61] After arresting the Accused, P.C. Rodziewicz spent time arranging for a tow of the Accused's car, searched the car, and speaking to Mr. London again. This all took until 11:44 p.m. when the officer returned his attention to the Accused. He gave the Accused rights to counsel between 11:44 and 11:46, the primary caution at 11:47, and finally the breath demand at 11:49 p.m. The breath demand was therefore made approximately fourteen minutes after P.C. Rodziewicz formed his grounds to do so.

[62] I find that the breath demand made by P.C. Rodziewicz was made as soon as practicable. The officer did not waste time or ignore his duties towards the investigation or the Accused. It was reasonable to delay making the demand until the officer had made arrangements to secure the Accused's motor vehicle and search it. Speaking further to Mr. London while he was still available at the scene was also reasonable. Although P.C. Hatcher was there and could have done these things, it was appropriate for P.C. Rodziewicz as the lead officer at the time to do these things.

[63] Even if I am wrong and the breath demand of P.C. Rodziewicz was not made as soon as practicable, I find that the breath demands made by both P.C. Pappis and P.C. Pinheiro were each made as soon as practicable. In each case the officers made their demands at the first reasonable opportunity to do so. Both P.C. Pappis and P.C. Pinheiro had ample grounds to make a breath demand in the first instance, being based in both cases on a reasonable belief that the Accused had driven poorly while intoxicated by alcohol. In short, even if the breath demand by P.C. Rodziewicz was invalid, the Accused was subject to two other valid breath demands.

[64] I find that the Accused gave his breath samples into the approved instrument while subject to three valid demands. The police complied with their statutory duties in making each demand and none of the Accused's Charter rights were violated by the timing of them.

3.3: Were the breath tests taken as soon as practicable?

3.3.1: Positions of the Parties

[65] The defence submits that in the circumstances of this case, the breath tests were not taken as soon as practicable because an unnecessary and avoidable delay was caused by the decision of P.C. Rodziewicz to turn the investigation over to a RIDE officer instead of continuing the investigation himself.

[66] The Crown submits that the decision by P.C. Rodziewicz to transfer the investigation to an officer specializing in drink/drive cases did not create any inordinate or unacceptable delay in this case.

3.3.2: Applicable Legal Principles

[67] Sections 258(1)(c)(ii) and 258(1)(d)(ii) of the Criminal Code require that both breath tests be taken as soon as practicable after any breath demand has been made.

[68] There are two main reasons why these requirements exist: trial fairness and liberty interests: R. v. St. Jean, [2012] O.J. No. 2684 (O.C.J.) at ¶ 6 – 10; R. v. Forsythe, [2009] M.J. No. 438 (C.A.) at ¶ 16 - 25. With respect to trial fairness, the "as soon as practicable" requirements ensure that the statutory presumption of identity operates both fairly and accurately. Regarding the subject's liberty interest, the "as soon as practicable" requirements minimize the period of detention of an arrestee.

[69] As referred to earlier in these reasons, "As soon as practicable" means "within a reasonably prompt time in all of the circumstances" and does not mean either immediately or as soon as possible: ¶ 59, supra.

[70] There is no burden on the Crown to account for every minute when considering this issue: R. v. Singh, supra; R. v. Vanderbruggen, supra; R. v. Carey, [2006] O.J. No. 3821 (C.A.); R. v. Persaud, [2006] O.J. No. 5363 (S.C.J.) at ¶ 16 – 22.

[71] The key issue is whether the Crown has proven that the police acted both promptly and reasonably in all of the circumstances: R. v. Singh, supra; R. v. Vanderbruggen, supra; R. v. Price, supra.

3.3.3: Analysis

[72] P.C. Rodziewicz decided to transfer the investigation to a RIDE officer after making the breath demand at 11:49 p.m. He said he did so for two reasons: first because it was a busy shift and he wanted to be available to take other calls; second because he wanted an officer more expert in drink/drive matters to deal with the Accused. According to P.C. Pappis, he received a call to attend the scene as a RIDE officer at around 11:45 p.m. A difference of four minutes in either direction makes no difference to my analysis.

[73] When P.C. Rodziewicz arrived on scene at 11:33 p.m. he immediately recognized that this was a drink/drive matter. He dealt with the Accused swiftly by arresting him within two minutes at around 11:35. At that time, the officer thought of, and called for, a tow truck but waited nearly fifteen minutes to call for an RIDE officer.

[74] I do not accept the bald statement that an officer is busy is, without more, a valid excuse to effectively palm off what is surely a time-consuming investigation. On the other hand, the transference of an investigation to another officer who is better able through knowledge or experience to take charge can be a reasonable step. The compelling inference I draw from the evidence of P.C. Rodziewicz is that he felt that a RIDE officer would do a better job than he would.

[75] While it was acceptable to cause some delay by calling for a RIDE officer, no explanation was given for P.C. Rodziewicz's delay in making the request. The conditions that motivated him to call for another officer to take carriage of the matter existed and were known to him at the first moment he arrived, saw the Accused and spoke to Mr. London. If P.C. Rodziewicz was going to call for a RIDE officer, it was unreasonable for him to delay the call until as late as 11:49 p.m. In my view P.C. Rodziewicz could, and should, have called for the RIDE officer immediately upon arresting the Accused instead of calling for a tow truck. I find that P.C. Rodziewicz failed to act either reasonably or promptly to facilitate the taking of the breath samples as he was required to do.

[76] The conduct of P.C. Rodziewicz showed an apparent indifference or ignorance to his duties and obligations to move the matter along expeditiously. P.C. Pappis finished speaking with the Accused at 12:07 but did not leave the scene until 12:18 a.m. Given that there were two other officers present to deal with all at-scene aspects of this case, this unexplained 11 minutes compounds what I have already found to be an unreasonable delay.

[77] Assessing the circumstances as a whole, and bearing in mind that the Crown need not explain every minute that passes, in this case the police created an unreasonable delay in the taking of the breath samples. Accordingly, the Crown is not entitled in this case to rely upon the statutory presumption afforded to it where the police do act as soon as practicable. Absent this presumption, and absent any other evidence, the breath tests results are inadmissible.

3.4: Was the first breath sample analyzed within two hours of the alleged offence?

3.4.1: Positions of the Parties

[78] The defence submits that there is a reasonable doubt that the first breath test was taken within two hours of the alleged offence.

[79] The Crown submits that it has proven beyond a reasonable doubt that the first breath test was taken within two hours of the alleged offence.

3.4.2: Analysis

[80] Given that I have already ruled the breath tests are inadmissible for not having been taken as soon as practicable, there is no need for me to rule on this issue. However, if I had been required to do so, I would have found that they were taken within two hours. Both P.C. Rodziewicz and P.C. Hatcher said that they came upon the scene at 11:33 p.m. There is no reason to doubt the accuracy of this body of evidence. P.C. Pinheiro's unchallenged evidence is that the first test was taken at 1:26 a.m., or 113 minutes after the alleged offence. On the record before me, I would have found that the first test was taken within two hours of the alleged offence.

3.5: Has the Crown proven impairment beyond a reasonable doubt?

3.5.1: Positions of the Parties

[81] The defence submits that given the conflicts in the evidence of the prosecution witnesses and in light of the evidence of the Accused that he was sober and provided explanations for his poor driving and other behaviours, there ought to be a reasonable doubt regarding the impairment of the Accused by alcohol to drive safely.

[82] The Crown submits that considering the evidence as a whole, the Accused's evidence ought not raise a reasonable doubt and further that despite the conflicts in the evidence, the Accused's impairment by alcohol to drive has been proven to the requisite standard.

3.5.2: Applicable Legal Principles

[83] Where, as here, an accused person testifies he is entitled to be acquitted if the court believes his evidence. If the court does not believe the Accused, but his evidence raises a reasonable doubt, he must be acquitted. Even if the court totally rejects the Accused's evidence, the Accused must be acquitted unless the remaining evidence proves his guilt beyond a reasonable doubt: W.(D.) v. The Queen, 63 C.C.C. (3d) 397 (S.C.C.).

[84] The court may believe none, some, or all of a witness's evidence: R. v. R.E.M., 2008 SCC 51, 235 C.C.C. (3d) 290 (S.C.C.) at ¶ 65; R. v. Hunter, [2000] O.J. No. 4089 (C.A.) at ¶ 5. The court is entitled to accept parts of a witness's evidence and reject other parts. Similarly, the court can accord different weight to different parts of the evidence that it has accepted: R. v. J.H., 192 C.C.C. (3d) 480 (Ont. C.A.) at ¶ 44.

[85] Any degree of impairment by alcohol to drive safely ranging from slight to great, establishes the offence: R. v. Stellato, 78 C.C.C. (3d) 380 (Ont. C.A.); aff'd , 90 C.C.C. (3d) 160 (S.C.C.); R. v. Moreno-Baches, 2007 ONCA 258.

[86] Slight impairment to drive relates to a reduced ability, in some measure, to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, regard for the rules of the road, and the like: R. v. Censoni, supra.

3.5.3: Analysis

[87] Assessing the evidence as a whole, I did not believe the Accused and his evidence does not raise a reasonable doubt on the central issues. The Accused said he had consumed only one or two drinks, having had his last drink around 9:30 p.m., and felt no effects of alcohol while driving. If this was true, he should have been obviously and unmistakably sober when he encountered the police at 11:30. The Accused's evidence that he was sober is fatally contradicted by all the other witnesses who variously described the Accused as smelling of alcohol, having bloodshot eyes, displaying slurred speech, and having clothes that were soiled by vomit and urine. Both P.C. Hatcher and P.C. Pappis testified that the Accused's balance was so poor that they thought he would fall over. P.C. Rodziewicz stated that he made no observations of any negative coordination. However, P.C. Pappis testified that P.C. Rodziewicz told him that the Accused was unsteady on his feet. I find that P.C. Rodziewicz was wrong or forgetful and I prefer the evidence of Hatcher and Pappis on the issue of the Accused's balance. P.C. Pinheiro made no observations of swaying, but as the qualified technician he had a very limited opportunity to make observations of the Accused's standing or walking.

[88] Any differences between the prosecution witnesses on the issue of impairment are minor and are wholly reconciled with each other when taking the evidence as a whole because each of them unequivocally stated for compelling reasons that the Accused was drunk.

[89] The Accused denied vomiting, explaining that his clothes were stained by spices and curries from work and his paan spittle may have been on his car when he missed spitting outside. He said he didn't urinate his pants, but instead splashed water on his pants while cleaning up at work. Vomit is easily recognized by anyone, particularly by its odour. Likewise, urine is observed often by a stain on the pants and by its unmistakable odour. Although none of the prosecution witnesses were asked why they believed the Accused had vomit and urine on him, the common observations of the officers satisfies me beyond a reasonable doubt that it was not spittle or water, but vomit and urine.

[90] With respect to the fallen pants of the Accused, having seen his stomach wound I accept or at least am left in a state of reasonable doubt that belted or buttoned trousers irritate the injury when he drives. However, I find that when he got out and his pants fell to the ground he was too intoxicated to fasten his pants as he got out.

[91] The Accused explained his poor driving as due to being lost and by being distracted by his GPS. While Mr. London agreed that the Accused might have been lost or distracted, this does not raise any reasonable doubt when stacked against the evidence as a whole which includes the Accused driving the wrong way on the road, driving some considerable distance on a flat, not pulling over but inside turning around with the flat, being unresponsive to Mr. London's entreaties and flashlight, and having been described by everyone but himself as intoxicated by alcohol. If the Accused was lost and distracted I find his intoxication played a real role in diminishing his ability to follow directions on a map and by using a hand held device while driving which is a violation of a breach of an important rule of the road.

[92] I also find it significant that even nearly two hours after driving, P.C. Pinheiro found the effects of alcohol on the Accused in the breath room to be noticeable. Although I have excluded the breath test results, the fact that there was alcohol in the Accused's body nearly four hours after he claimed to have stopped drinking underscores why I do not believe that he had only one or two beers that night.

[93] Considering and assessing the evidence as a whole, I am well satisfied that the Crown has proven beyond any reasonable doubt that the ability of the Accused to operate a motor vehicle was impaired by the consumption of alcohol and that he drove drunk.

4.0: CONCLUSIONS

[94] For all of the reasons given, I find the Accused not guilty of driving with excess blood alcohol but guilty of impaired driving.

Original Signed by The Honourable Justice R.H.K. Schwarzl

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice

Footnote

[1] The presumption of identity presumes that the blood alcohol concentration at the time of testing is the same as the blood alcohol concentration at the time of driving. The physiology of the absorption and elimination of alcohol can create significant differences between actual and tested blood alcohol concentrations the longer the time between driving and testing.