Court Information

Information No.: 13 11804

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Breanna Kersey

Before: Justice Lloyd Dean

Dates Heard: October 14, 15, 2014 and January 30, 2015

Counsel:

• I. Mizel for the Crown
• B. Ducharme for the Accused

Reasons for Judgment

DEAN J.:

Introduction

[1] Ms. Kersey is charged with impaired driving and exceeding the legal limit of alcohol in her blood while operating her motor vehicle. The offences are alleged to have occurred on November 1, 2013. The court heard evidence in this matter on October 14th, 15th 2014, and January 30th, 2015.

Evidence

[2] The first witness the Court heard from was Olindo Lavoie. At the time of his testimony, Mr. Lavoie was 39 years of age. He testified that on the date of the incident he had left his place of employment in the Municipality of Leamington at approximately 1:00 a.m. He drove westbound on County Road 18 towards the Town of Kingsville. He indicated it was a little bit rainy, the roads were a little bit wet and visibility was clear. He observed the headlights of another vehicle travelling eastbound on County Road 18 towards him. That vehicle attempted to make a left turn onto Graham Side Road across the path of his vehicle causing his vehicle to strike it. Mr. Lavoie testified he had no way of stopping and the next thing he knew his airbags had deployed and his car was in the ditch. He got out of his vehicle to check on the driver of the other vehicle. He was asked by Crown counsel where the other driver was. He answered by saying she was off of County Road 18 and Graham Side Road, outside of her vehicle on the driver's side. He testified there was nobody else around. He also indicated he never saw this female in the vehicle. When he first saw the female, she was crouching down and he asked her what happened and why she did not see him (referring to his car) coming. He testified she was very apologetic and said she was sorry, she thought she could make the turn before he crossed the intersection. To him, it looked like she was stumbling a little bit and when she stood up she looked a little bit tipsy. She was also slurring her words a little bit. He asked her if she had been drinking and she told him, "Yes." He testified she kept saying she was sorry. Mr. Lavoie indicated he called the police and he believes they arrived probably within ten to fifteen minutes later. He recalls the police arriving first, then an ambulance. He did not see the police deal with the female he had observed because he was busy talking to an officer. He testified he would not recognize the female if he saw her again because it was pretty dark out and there were not a lot of lights at the scene of the accident. He remembers she was wearing a short dress and she was a brunette. He indicated he only suffered bruising to his hand as a result of his air bags deploying and did not see any injuries to the female but could not really tell if she had any.

[3] During cross-examination Mr. Lavoie was asked if he noticed whether the air bag of the other vehicle had "exploded" (meaning gone off). He responded by saying, "Not until I looked at the vehicle after..." Defence counsel then asked, "I see, but you couldn't tell until after but it did go off, when you looked at the vehicle after? That is when there was nobody in the vehicle?" To which Mr. Lavoie answered, "Yeah." Defence counsel then asked "That's when you looked at it, correct?" Mr. Lavoie answered, "Yeah, when I walked over to the car, yeah."

[4] Officer D. Brown testified he received a dispatch at approximately 1:00 a.m. regarding a motor vehicle accident at County Road 18 and Graham Side Road, which is on the outskirts of the Town of Kingsville. When he arrived at that location at 1:06 a.m. he observed two persons standing on the roadway and two vehicles in the ditch. He spoke to Mr. Lavoie, receiving information about the incident. He did not have it noted in his notebook but he believes Mr. Lavoie identified Ms. Kersey as the driver of the second vehicle, although at the time of his testimony he could not specifically recall Mr. Lavoie saying she was. Officer Brown testified she was the only other person he observed at the scene. He testified the totality of the circumstances made him confident she was the driver of one of the two vehicles.

[5] Officer Brown testified when he spoke to Ms. Kersey she appeared to be a bit dazed or confused. As he was approaching her she appeared to be unsteady on her feet and when she attempted to walk her feet crossed. When speaking to her, he detected an odour of alcohol on her breath. He testified that at 1:09 he was going to arrest her for impaired driving. He indicated he put his investigation on hold to allow medical personnel who were on the scene to attend to Ms. Kersey. At 1:13, after Ms. Kersey exited the ambulance, he arrested her for impaired driving. He noted that her speech was slurred. He summarized the observations he made which led him to believe Ms. Kersey was impaired: the odour of alcohol on her breath, unsteadiness on her feet, her feet crossing as she walked, slurred speech and seemed confused about how the accident had occurred. He further testified that after Ms. Kersey had been arrested and was in the back seat of his cruiser she lied across the back seat and fell asleep. At 1:19 he transported her to the Leamington O.P.P. Station, arriving there at 1:28. He had another officer, Officer Shaw, assist him in getting Ms. Kersey out of his vehicle. At 1:36 he placed a call to the lawyer she requested and she spoke to that lawyer at 1:39. That was his last contact with her. He gave his grounds to the qualified breath technician, Officer J. Chopchik, at 1:42.

[6] Officer Chopchik was the qualified breath technician who performed the breath tests on the accused. He testified that while he was on general patrol duty within the Municipality of Leamington, he was notified by Sergeant Higgins at 1:18 that he was required to perform a breath test. He arrived at the Leamington detachment at 1:27 and began to prepare the Intoxilyzer 8000C. At 1:38 he determined it was in proper working order. At 1:43 Officer Brown provided him with the grounds for arrest and at 1:44 Officer Shaw brought Ms. Kersey into the breath room. He observed she was wearing a yellow t-shirt and a black and white paisley skirt. He observed she had a scuff on her chin and her arm and while she walked towards the seat beside the Intoxilyzer she was swaying. When she sat down he detected a strong odour of an alcoholic beverage on her breath. At 1:47 the grounds for arrest were completed and at 1:48 Officer Chopchik read the breath demand and caution to Ms. Kersey. He testified he initially had a little bit of trouble getting a suitable sample from Ms. Kersey but at 1:59 she provided a suitable sample. The result was a reading of 173 milligrams of alcohol in 100 millilitres of blood. The process of taking a second sample began at 2:18. Ms. Kersey once again had difficulty providing a suitable sample and had to be coached again by Officer Chopchik on what she needed to do. At 2:28 the second suitable sample was provided. The result was 169 milligrams of alcohol in 100 millilitres of blood. The breath tests records were entered as exhibit one.

[7] The defence called no evidence.

Position of the Parties

Defence Position

[8] Defence counsel argues the Crown has failed to prove beyond a reasonable doubt that it was Ms. Kersey who was the operator of the motor vehicle and therefore both counts should be dismissed.

[9] Defence counsel submits only one person was in a position to identify the driver of the motor vehicle and that was Mr. Lavoie and he failed to identify Ms. Kersey as the driver. He submits Mr. Lavoie never points out to the investigating officer, Officer Brown, who the person was who Mr. Lavoie spoke to after the accident. He relies on the case of R. v. Tat, to support his position. He further argues that Officer Brown never asked Ms. Kersey if she was the driver of the motor vehicle. In response to the Crown's argument that the only reasonable inference which could be drawn is that Ms. Kersey was the driver the defence submits the driver could have still been in the vehicle or had gone somewhere else. He points out that Officer Brown never went to the vehicle.

[10] With respect to the issue of impairment, defense counsel submits none of the evidence Mr. Lavoie has offered can be used to prove impairment because he has not identified Ms. Kersey as the person he observed or spoke to.

[11] If I find that Ms. Kersey was the driver defence counsel argues that Officer Brown's observations regarding Ms. Kersey's speech should not be persuasive because Officer Brown had no prior contact with Ms. Kersey and is unable to compare her speech on the date of the incident to another occasion. Further, he points to the inability of Officer Brown to give any evidence as to what words were slurred by Ms. Kersey when she spoke. He further argues that Officer Brown is the only witness who offered an opinion that Ms. Kersey was impaired. He points out that Officer Chopchik offered no opinion to the court about Ms. Kersey's impairment. Defence counsel argues Officer Brown's opportunity to observe Ms. Kersey was brief.

[12] With respect to the exceed charge, defence counsel argues the breath tests were not taken as soon as practicable. Counsel submits there is a lack of evidence with respect to the time period between when Officer Shaw took over custody of Ms. Kersey and when Officer Shaw delivered Ms. Kersey to Officer Chopchik. Counsel points out that Officer Shaw was not called as a witness and therefore there is a lack of evidence as to whether the police acted reasonably. He relies on the case of R. v. Ortiz-Ordonnez, [2015] ONSC 280, to support his argument surrounding this issue.

Crown's Position

[13] It is the Crown's position that there is no other reasonable inference which can be drawn from the circumstantial evidence other than Ms. Kersey was the driver of the vehicle. The Crown submits while there is no "in-dock" identification given by Mr. Lavoie he does provide circumstantial evidence of identification. The Crown submits Mr. Lavoie testified the only other individual there at the scene was a lone female. He identifies that female as a brunette wearing a short dress.

[14] The Crown submits the case of Tat, supra, is distinguishable to the facts in the case at bar and does not apply.

[15] The Crown argues if the court is satisfied that Ms. Kersey was the driver then Mr. Lavoie's testimony regarding his interaction with her is relevant with respect to the issue of impairment. The Crown also points to the observations of Officer Brown of Ms. Kersey and the evidence of Officer Chopchik to support a finding that the accused was impaired. The Crown also submits the motor vehicle accident itself, when combined with the other evidence, supports a finding of impairment.

[16] With respect to the exceed charge and whether the tests were taken as soon as practicable, the Crown submits the case of Ortiz-Ordonnez, supra, is also distinguishable. The Crown, during its submissions, went through the timeline from the accused's arrival at the detachment to the time of the tests and submits the police acted reasonably and the tests were taken as soon as practicable and therefore the Crown should be able to rely on the presumption found in s. 258(1)(c) of the Criminal Code of Canada.

Analysis

Identity of the Driver

[17] Dealing first with the issue of identity.

[18] In order to find Ms. Kersey was the driver of one of the two vehicles on the basis of the circumstantial or indirect evidence heard in this case, I must be satisfied beyond a reasonable doubt that is the only rational conclusion (inference) which can be drawn from the whole of the evidence: see R. v. Griffin, 2009 SCC 28.

[19] When I consider the whole of the evidence in this case I am satisfied beyond a reasonable doubt that the only rational conclusion/inference which can be drawn is that Ms. Kersey was the driver of one of the two vehicles.

[20] Mr. Lavoie never observed Ms. Kersey in the vehicle but when he first observed her she was crouching down outside of her vehicle on the driver's side of the vehicle. He asked her what happened and why she did not see his car coming and she answered by saying she was sorry, she thought she could make the turn in time. Defence counsel asked Mr. Lavoie about not observing if the airbags deployed in the other vehicle until he looked into the other vehicle when there was nobody in the vehicle and he responded, "Yeah." He testified there was nobody else around. I am satisfied that the person Mr. Lavoie observed and spoke to was the driver of the other vehicle.

[21] The only other thing to consider is whether or not I am satisfied beyond a reasonable doubt that the female Mr. Lavoie was speaking to was the same person Officer Brown observed and arrested.

[22] Although he did not note it in his notebook he believes Mr. Lavoie identified Ms. Kersey as the driver of the other vehicle however could not specifically recall that. He did testify that the totality of the circumstance made him confident she was the driver of one of the two vehicles.

[23] Officer Brown was dispatched at 1:00 and arrived six minutes later. He saw two persons on the road when he arrived. One was Mr. Lavoie, the other was Ms. Kersey.

[24] On the totality of the above noted evidence, I am satisfied beyond a reasonable doubt that the only rational conclusion/inference which can be drawn is that the female who Officer Brown observed and arrested was the same individual Mr. Lavoie had observed and spoke to. Further, on the whole of the evidence I am satisfied that the only rational conclusion/inference which can be drawn is that Ms. Kersey was the driver of the vehicle who made the left turn across the path of Mr. Lavoie's vehicle and caused the accident.

[25] I agree with the Crown that the case of Tat, supra, is distinguishable from the case before this court and does not apply to the factual situation found here.

As Soon as Practicable ("ASAP")

[26] ASAP does not mean "as soon as possible". Rather, the samples must be taken in a reasonably prompt manner under the circumstances unique to the case. The determination is a factual one to be considered by the trial judge. Where the time is prima facie unreasonable the Crown will need to explain to the satisfaction of the judge how the delay meets the requirement set out in s. 258(1)(c)(ii). If there is a reasonable doubt as to whether the samples were taken as soon as practicable, then the Crown will not be able to rely upon the presumption.

[27] The Ontario Court of Appeal summarizes the relevant law in R. v. Vanderbruggen, at paragraphs 12 and 13, as follows:

12 That leaves the question that is at the heart of this appeal -- the meaning of as soon as practicable. Decisions of this and other courts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances. See R. v. Phillips (1988), 42 C.C.C. (3d) 150 (Ont. C.A.) at 156; R. v. Ashby (1980), 57 C.C.C. (2d) 348 (Ont. C.A.) at 351; and R. v. Mudry, R. v. Coverly (1979), 50 C.C.C. (2d) 518 (Alta. C.A.) at 522. There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably. See R. v. Payne (1990), 56 C.C.C. (3d) 548 (Ont. C.A.) at 552; R. v. Carter (1981), 59 C.C.C. (2d) 450 (Sask. C.A.) at 453; R. v. Van Der Veen (1988), 44 C.C.C. (3d) 38 (Alta. C.A.) at 47; R. v. Clarke, [1991] O.J. No. 3065 (C.A.); and R. v. Seed, [1998] O.J. No. 4362 (C.A.).

13 In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that -- in all the circumstances -- the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody. See R. v. Letford (2000), 150 C.C.C. (3d) 225 (Ont. C.A.) at para. 20; R. v. Carter, supra; R. v. Cambrin (1982), 1 C.C.C. (3d) 59 (B.C.C.A.) at 61-3, and R. v. Seed at para.

[Emphasis added]

[28] The issue becomes what is an unreasonable delay. There is no consensus in the case law about what length of delay is unreasonable. The cases are largely determined on the unique facts of each case. I need only apply reason and common sense derived from my experience when determining this issue.

[29] Ms. Kersey was arrested at 1:13 and the first sample was taken at 1:59, forty-six minutes later. In order for the Crown to rely on the presumption in s. 258(1)(c) the Code permits an outside limit of two hours from the time of the offense to the taking of the first sample. The time of the offence was approximately 1:00. Therefore the first sample was taken approximately sixty minutes after the incident.

[30] Defence counsel has argued the Crown has failed to provide evidence as to where the accused was and what Officer Shaw was doing with the accused during the time period of 1:39 to 1:44, a period of five minutes. Defence counsel submits because the Crown did not call Officer Shaw as a witness there is a lack of evidence to show the police acted reasonably. Five minutes is not a time period that is prima facie unreasonable.

[31] In my view, the Crown needed to not address the issue. As stated in the case of Vanderbruggen, supra, in paragraph thirteen which I have reproduced above, "…there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody." Nonetheless, we know from Officer Chopchik's evidence that the grounds given to him from Officer Brown began at 1:43 and completed at 1:47. Therefore the first sample could not have been taken prior to 1:47 in any event.

[32] As further stated by the Court of Appeal in Vanderbruggen when referring to Section 258(1)(c)(ii), at paragraph sixteen:

16…These provisions must be interpreted reasonably in a manner that is consistent with Parliament's purpose in facilitating the use of this reliable evidence.

[33] I am satisfied, when considering all the circumstances, the police acted reasonably and the samples were taken as soon as practicable. Therefore, the Crown is able to rely on the presumption in s. 258(1)(c).

Impairment

[34] Given that I am satisfied of Ms. Kersey's identity as the driver of one of the two vehicles, she will be found guilty on the exceed charge.

[35] With respect to the impaired driving charge, in order to secure a conviction for impaired driving the Crown is not required to prove a specific level of impairment. Evidence that establishes any level of impairment of the ability to drive caused by alcohol is sufficient proof of the offence (see R. v. Stellato, aff'd ).

[36] The totality of the symptoms observed by Mr. Lavoie, Officer Brown and Officer Chopchik, the events of the accident including the statements made by the accused to Mr. Lavoie and the results of the breath tests have satisfied me beyond a reasonable doubt that the accused ability to operate her motor vehicle was at least slightly impaired by the previous consumption of alcohol. The Crown has met its burden. The accused is also found guilty of impaired driving.

Released this 16th day of April, 2015

Justice Lloyd Dean