Court File and Parties

Ontario Court of Justice

Date: 2015-07-22

Court File No.: Oshawa 14-11092

Between:

Her Majesty the Queen

— and —

Malham Outri

Before: Justice G. R. Wakefield

Heard on: April 28th and May 1st, 2015

Reasons for Judgment released on: July 22nd, 2015

Counsel

M. Hill — counsel for the Crown

I. Isenstein — counsel for the defendant Malham Outri

Judgment

WAKEFIELD, J.:

Introduction

[1] "Over 80" charges consume a substantial amount of judicial resources in the Ontario Court of Justice. I often wonder whether equally substantial savings in the Justice System would result if mass-produced Interlock devices were mandatory in all motor vehicles. I suspect such an administrative response would result in a clear reduction in the carnage caused by drunk drivers. It would certainly reduce the number of Charter challenges to police conduct which now seem to be the Defence foundation of almost all drinking and driving trials. The defence in this trial is yet again an example of focusing on the arresting officer's investigation by way of a Charter review as opposed to the conduct of the Defendant. The question before me is whether the investigating officer had reasonable and probable grounds for the arrest together with an argument concerning the requirement that breath tests be conducted "as soon as practicable".

The Charges

[2] Malham Outri is charged that on the 6th day of February, 2014, he was operating a motor vehicle while both Impaired by alcohol and while his blood alcohol was "Over 80".

[3] In the case at bar, Malham Outri was clearly operating a motor vehicle while having consumed sufficient alcohol to produce truncated Intoxilyzer readings of .170 and .150 milligrams of alcohol in 100 millilitres of blood.

Facts: The Traffic Stop and Initial Observations

[4] Mr. Outri first attracts the attention of Constable Williams and his partner at approximately eleven p.m. when the officer observed the Defendant's motor vehicle southbound on Brock Road in the City of Pickering and as it performed a "U-turn" to go northbound and stop behind two other vehicles at the Bayly Street intersection. The officer confirmed that the "U-turn" was performed correctly in light traffic and stopped properly behind the two other cars and as such was obeying the traffic lights. The Defendant then moved over a lane without signalling to enter a dedicated right hand turn lane which is separated from the northbound lanes by a median, and proceeded eastbound on Bayly Street. This turn was also without a signal, though neither Crown nor Defence counsel were able to assist me as to whether a turn signal was required in a dedicated median separated laneway. While westbound, the Defendant moved from the curb lane into the passing lane without signalling. A transport truck was parked in that curb lane, and as the Defendant passed the truck, he moved partially into a left turn lane without signalling. At no time did the Officer note any speeding concerns nor any concerns with any of the intersections he passed through.

[5] The officer while following the Defendant, observed the vehicle swerve one or two occasions within its own lane. At this time the officer activated his emergency lights intending to pull the vehicle over to check for sobriety. In reaction to the emergency lights, the Defendant moved back into the curb lane without signalling, and in pulling over to a stop, the officer concluded the vehicle had hit the curb. Apparently the roads had been ploughed and salted, but there was accumulated slush and ice along the curbs. He conceded the contact with the curb could be due to either a reaction to the cruiser siren or due to the slippery road conditions. The latter would be consistent with the officer's description of accumulated slush by the curbs.

Roadside Interaction

[6] The officer approached the driver side door, and was met with a strong odor of cologne, which in the officer's experience has been used to mask the smell of alcohol by impaired drivers. In response to the officer advising the reason for the pull over was to determine sobriety, the Defendant denied consuming any alcohol and asserted he was on his way home to Ajax from Scarborough. This caused the officer concern as travelling from Scarborough to Ajax would normally result in either a straight route along the 401 or Highway 2 and not along Bayly, and certainly not by going south of Bayly, albeit to turn around in order to access Bayly. However, the officer did not testify as to where in Ajax the Defendant was driving in order to determine whether Bayly was an appropriate route.

[7] The usual request for documentation resulted in the Defendant pulling out a wallet with quite tightly packed plastic cards and a fumbling an attempt to pull out the driver's licence, including a suggestion that the officer take the wallet and pull out the licence himself, an opportunity the officer declined. The licence was then retrieved and passed over to the officer who confirmed the Defendant's identity. The officer had no recollection of any difficulty in retrieving ownership or insurance slips, where those documents came from, or even if the Defendant was wearing gloves while trying to retrieve the drivers licence. Once produced, there was no difficulty in passing the drivers licence over to the officer. He was unsure how long or how many attempts, if any, the Defendant took to pull out his licence. The officer was unsure how cold it was that night, or if the Defendant's car was heated. The Defendant was described as co-operative throughout the investigation. The officer understood Mr. Outri throughout the investigation and did not detect any slurring.

[8] However, through this interaction with the Defendant the officer detects an odor of alcohol from the Defendant's breath and asks the Mr. Outri to follow him to the cruiser. The officer describes the Defendant walking fine but with exaggerated arm and leg movements which were slow and deliberate while walking on the roadway towards the cruiser. The officer conceded that his observations of the Defendant's movements being exaggerated were in the context of never having observed or met the Defendant before. Additionally, the officer confirmed the Defendant walked properly from the cruiser into the sally port at 19 Division, from the various rooms in the investigation, including taking the stairs to the next floor. In that regard I would note that the original observation of walking was on winter roads described as ploughed and salted, though still wet and possible light snow, compared to the interior areas of the police station. The officer at 11:05 p.m. forms the opinion that Mr. Outri was impaired and places him under arrest. Rights to Counsel, Caution, and Breath Demand were made over the succeeding 7 minutes. Another officer arrived to deal with the towing of the motor vehicle, and at 11:17 P.C. Williams starts his transport of the Defendant towards 19 Division and arrives there at 11:22.

Custody and Breath Testing

[9] The Defendant requested a specific lawyer with whom the Defendant had conversation commencing at 11:49 and concluding at 11:54, whereupon the custody of Mr. Outri was transferred over to the breath technician P.C. Boyle, who conducted the tests and certified the Instrument readings. Mr. Outri was returned to Constable Williams at 00:28 and once the additional paperwork was completed, the officer reviewed all the paperwork with the Defendant who appeared to understand without any difficulty.

Crown's Case and Procedural Matters

[10] The Crown closed its case with Constable Williams, and requested that the Impaired count be withdrawn. The Defence then closed without calling evidence. I draw no adverse inferences from the Crown withdrawing the Impaired count as the test for conviction is obviously not the test applied to reasonable and probable grounds nor are there any adverse inferences in the Defence electing not to call evidence as the testimony of the arresting officer must stand scrutiny independently.

[11] The balance of the trial were submissions on the alleged Charter breaches with the consequential impact on the admissibility of the breath tests, and an "As soon as practicable" issue.

Legal Analysis: Reasonable and Probable Grounds

[12] My first issue is to determine whether Constable Williams had the subjective grounds necessary to empower him to arrest the Defendant; on this ground Defence concedes the officer had the necessary subjective grounds. I have been provided a number of cases to assist me in assessing the correct analysis as to whether the officer objectively had sufficient grounds.

[13] Clearly, the legal test for Reasonable and Probable Grounds is not a high one. The test is more than a mere suspicion, and less onerous than a prima facie standard; it is a fact based analysis of the totality of the circumstances the arresting officer had in mind; the officer is entitled to disbelieve and disregard any evidence disbelieved; the officer must balance any circumstance detracting from the conclusion of impairment to those suggestive of impairment, and the totality of circumstances must be sufficient that a reasonable person in the position of the arresting officer would be able to conclude that reasonable and probable grounds existed.

[14] The grounds need only amount to evidence of slight impairment by alcohol as opposed to gross impairment. There is no minimum time for the investigation, nor any mandatory minimum number of circumstances in order to amount to an objective review. I instruct myself not to engage in "the luxury of judicial reflection" nor engage in a dissection of each individual ground reviewed in isolation of each other.

Application to the Facts

[15] In my view, an objective person in the position of this officer would not feel they had reasonable and probable grounds. While the observations of the Defendant's driving southbound on Brock and the U-turn ending up on Bayly confirmed a series of Highway Traffic Act breaches, the manoeuvres were each completed competently. The swerving within the lane was at least once but within the lane. The passing of the transport truck on Bayly was conducted competently albeit without signals, and the movement into part of the turning lane was part of the moving past the parked transport truck. The continued driving along Bayly was competently done as was the pulling over apart from hitting the curb. As for hitting the curb, the officer did not describe the motor vehicle as bouncing off the curb, and conceded the contact with the curb may have been the result of road conditions.

[16] The presence of a strong cologne smell within the Defendant's car certainly was a circumstance which in the officer's experience raised the suspicion of the cologne masking the odor of alcohol, but hardly a circumstance of impairment. The officer described fumbling for the driver's licence, but confirmed the jam-packed nature of that wallet and had no recollection of how the licence was ultimately retrieved or any difficulties with any other documents. The offer of passing the wallet to the officer to get the licence is suspicious, but hardly unique. The sense of the initial walking by the Defendant when exiting the car and going to the cruiser was described as "exaggerated" as opposed to requiring the car for balance, or indeed, any balance issues, nor any such concerns when at the police station.

[17] Indeed the physical indicia of impairment appears minimal outside of the observed driving, and that driving was completed safely while breaking rules of the road. In my view, as stated, an objective person would not in the totality of these circumstances conclude there were reasonable and probable grounds for arresting the Defendant for Impaired driving.

Charter Breach and Exclusion of Evidence

[18] Clearly, society demands through criminal legislation that the carnage caused by impaired drivers be curtailed. Citizens also have the right not to be subject to detention and arrest without the requisite statutory and constitutional grounds and such an important right should never be surrendered to expediency of police investigation. Of course, finding that balance must be a frustrating exercise for all police officers doing their best to ensure highway safety, especially when the subsequent Intoxilyzer readings are confirmatory of the officer's conclusions leading to arrest of a driver abusing the privilege of driving by drinking alcohol to excess.

[19] In my view, the circumstances of this arrest fall at the more serious end of the scale. Parliament has given police the power to arrest without warrant and to compel a driver to provide potentially self-incriminatory evidence by balancing the requirements an arresting officer must meet prior to exercising that power of arrest and seizure. Anything less than strict compliance with the ability to arrest undermines the intrusion on a citizen's Charter rights permitted by the applicable sections of the Criminal Code.

[20] The taking of the breath samples is minimally intrusive on the Defendant's bodily integrity. However, the breach of the Defendant's Charter rights resulted in detention, handcuffs, custody, impounding of the car, the immediate suspension of his driving privileges, and the obtaining of evidence which would not have been discoverable by any other means were it not for the Charter breaches. The impact on the Defendant's Charter protected interests is severe.

[21] Society has a tremendous interest in the adjudication of this and all drinking-driving offences. The word "carnage" has been used so familiarly in these cases it seems to be losing its impact. The trauma on families victimized by drinking drivers, including their own families, on the investigating officers who see the carnage, on the emergency personnel in hospitals means all have a tremendous interest in stopping such conduct. Society has an intense interest in adjudicating this type of offence on its merits as our system of justice has only a reactive role to play. However, society has an equally strong interest in a system of justice which is administered properly and not brought into disrepute by devaluing the rights of every citizen. In the case at bar, there were no accidents, no obvious signs of impairment and a very cooperative Defendant.

[22] In my view, the correct balancing of these factors call for exclusion of the Certificate of Analysis to prevent bringing the administration of justice into disrepute.

"As Soon as Practicable" Analysis

[23] As for the submissions on the "as soon as practicable" argument, in my view the caselaw is clear I should look at the total time involved in obtaining the breath samples and not dissect each minute of delay when determining the reasonableness of the total time expended. In the case at bar, while it was not clear what time the Defendant was pulled over, the decision to arrest occurred at 23:05. The breath tests were completed and the Defendant back in the custody of the arresting officer at 00:28. The intervening time included impounding the car and facilitating the Defendant accessing counsel of choice. The entire elapsed time was one hour and 23 minutes, well within the time Parliament has set for breath tests to be completed. I find the elapsed time to be reasonable.

Disposition

[24] Without the Certificate of Analysis as evidence of the readings, the Defendant is hereby acquitted.

Released: July 22nd, 2015

Signed: "Justice G. R. Wakefield"