Court File and Parties

Court File No.: 14-06514 Central East Region-Newmarket Date: 2015-06-17 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Thomas Scheitrowsky

Before: Justice Peter C. West

Evidence heard on: May 8, 2015

Reasons for Judgment Delivered on: June 17, 2015

Counsel:

• Ms. E. Thomas, for the Crown
• Mr. M. Neziol, for the defendant, Thomas Scheitrowsky

WEST J.:

Introduction

[1] On August 23, 2014, Mr. Scheitrowsky was charged with having consumed alcohol such that his ability to operate a motor vehicle was impaired, contrary to s. 253(1)(a) of the Criminal Code and operate motor vehicle with a blood alcohol concentration (BAC) greater than 80 mg of alcohol in 100 ml of blood, contrary to s. 253(1)(b) of the Criminal Code. The Crown advised she would only be proceeding on the impaired driving charge at the commencement of the trial. The Crown called two witnesses; a civilian witness, Kelly Chang and the investigating police officer, P.C. Anna Jankowska. The defence did not call any evidence.

Factual Background

[2] Kelly Chang was coming out of the Home Depot Store at 1st Markham Place Plaza with a friend at approximately 5:30 p.m. She was walking to her car when she heard tires screeching and a loud impact noise. She did not see the impact. She looked towards the direction of the impact noise and observed a beige Camry-type vehicle in collision with a black Volkswagen. At the time of the collision there were not many cars driving.

[3] She observed the driver of the beige Camry reverse his car and pull into a parking spot in the aisle just north of the Volkswagen. She went to the beige Camry and asked if the driver and passenger were okay. She observed the male driver and female passenger get out of the vehicle before she spoke to them. They indicated they were okay and seemed to be laughing and giggling about what happened. Ms. Chang believed the driver and passenger were exhibiting inappropriate behaviour by laughing and giggling given what had just happened, which Ms. Chang viewed to be very serious.

[4] The driver's face was red or pinkish/reddish. He was a white person. She testified she pointed out the driver to the police officer who attended to investigate the accident. In cross-examination she described what the driver was wearing in her police statement; namely, a white teenage male wearing a black t-shirt and jeans. Ms. Chang identified the driver of the Camry in court, saying, "I recognize him" and pointed to the defendant, Thomas Scheitrowsky.

[5] Her sister stayed with the driver to ensure he did not leave and Ms. Chang went into the Chapters store, which was close to where the Volkswagen was parked, to see if she could locate the owner. She had a clerk in the store page the owner and eventually a woman came forward and Ms. Chang advised her as to what had happened.

[6] Ms. Chang had a conversation with the driver about what happened before she went into the Chapters store. The driver told her his steering wheel had locked and he could not avoid the accident. When Ms. Chang came out of the Chapters store the driver provided another reason for the collision; namely, he was only going 20 km/hr., which Ms. Chang testified seemed very slow given the damage she observed to the passenger side of the Volkswagen. There was also discussion that the Camry had struck the Volkswagen straight on; however, Ms. Chang testified she saw the vehicle in contact with the Volkswagen at a diagonal.

[7] Ms. Chang did not look at the damage to the Camry. She drew a diagram of the position of the cars, with arrows depicting the direction of the Camry before the impact and how it reversed and drove north into a parking space in a different aisle. In cross-examination, Ms. Chang testified there was nothing obstructing her view of the Camry in collision with the Volkswagen, the Camry reversing and driving forward northbound to park in another parking spot in another aisle. She had a clear view of the defendant exiting the driver's seat of the Camry. The Camry was facing in an easterly direction after it came into contact with the Volkswagen. It reversed and drove north to the parking spot.

[8] P.C. Jankowska has been a York Regional Police officer since November 2012. On August 23, 2014 she was in uniform, driving a marked police cruiser. Her police vehicle was not equipped with an in-car camera. She made rough notes initially as her investigation progressed and then wrote her notes in good. At 18:21 she was dispatched to the scene of a collision in the parking lot located at 3135 Highway 7 East in Markham. This mall is east of Woodbine Avenue. She attended and observed a number of people standing by 2 motor vehicles. She observed a black Volkswagen with damage to its whole right passenger side. The other vehicle, a Camry, had extensive damage to its front end. The air bag in the Camry was deployed and the whole front end was caved in.

[9] P.C. Jankowska spoke to Kelly Chang who advised she saw the driver exit the Camry and saw him walk to the passenger's side. She pointed out Mr. Scheitrowsky as the driver. Mr. Scheitrowsky told the officer his steering wheel had seized. When the officer arrived on scene the two vehicles were not in contact with each other. The Camry had been moved to another spot north of where the Volkswagen was parked. The officer told Mr. Scheitrowsky she did not believe the steering wheel had seized as the Camry had to reverse and then Mr. Scheitrowsky had to turn his steering wheel to be able to get to the parking spot the Camry was parked in.

[10] Mr. Scheitrowsky was wearing a black t-shirt, grey jeans, a blue hat and black running shoes. This was the same description given by Ms. Chang as to the clothes the driver of the Camry was wearing.

[11] P.C. Jankowska testified the black Volkswagen had been backed into a parking spot but the force of the impact had pushed the vehicle at an angle. There was a trail of mud or dirt on the ground leading up to the Volkswagen. The officer located a cement planter which it appeared a car had driven over. She drew a diagram, which was filed as Exhibit 2, depicting her observations at the scene. The officer testified Mr. Scheitrowsky's explanation for why the accident occurred, namely, his steering wheel seized, did not make sense because he had reversed his car after the impact and then turned the steering wheel so he could drive north to the next aisle and park.

[12] P.C. Jankowska asked Mr. Scheitrowsky if he had been drinking and he denied any consumption. The officer observed Mr. Scheitrowsky smoking when he first arrived, which she testified she believed was done to mask the odour of alcohol. The officer was able to detect a slight odour of alcohol when Mr. Scheitrowsky had stopped smoking and asked him if he had been drinking because there was an odour of alcohol on his breath. Mr. Scheitrowsky then admitted to drinking one drink at Kelsey's. When the officer asked him his birth date he indicated 1995 05 95, which the officer testified made no sense to her. When she told him the birth date made no sense, he ultimately corrected what he said to 1995 05 30 but the officer had to ask him a few times for his correct birthdate.

[13] As a result of detecting the slight odour of alcohol on Mr. Scheitrowsky's breath and his admission of consuming a drink at Kelsey's the officer formed a reasonable suspicion Mr. Scheitrowsky had alcohol in his body. She made a demand that Mr. Scheitrowsky provide a sample of his breath into an approved screening device (ASD). She brought the defendant to her cruiser and got out her ASD. She demonstrated how the device operated by providing her own breath sample. Mr. Scheitrowsky indicated he understood and provided a sample of his breath into the ASD. Mr. Scheitrowsky blew a fail, which the officer testified meant Mr. Scheitrowsky had 100 mg of alcohol, or more, in 100 ml of blood because the ASD is calibrated to register a "Fail" at 100 mg of alcohol in 100 ml of blood. At 18:52 the officer placed Mr. Scheitrowsky under arrest for over 80. The officer read the defendant his right to counsel at 18:54, as well as a caution that he was not required to say anything. Mr. Scheitrowsky told the officer he understood and he wanted to speak to a lawyer, the free one.

[14] P.C. Jankowska had requested a male officer attend the scene to secure Mr. Scheitrowsky's vehicle and search Mr. Scheitrowsky prior to transporting him to the police station. At 18:58 she read the defendant the breath demand and asked if he understood and Mr. Scheitrowsky said "word", which the officer understood was slang to indicate he understood.

[15] Mr. Scheitrowsky advised P.C. Jankowska he had to pee and asked to go to the washroom. She advised him that he would have to wait until the male officer arrived so he could be searched. P.C. LaCroix arrived at 19:01. P.C. Jankowska requested he do a pat down search on Mr. Scheitrowsky and then interview the civilian witness, Kelly Chang.

[16] After Mr. Scheitrowsky was placed back into the police cruiser at 19:12. He advised P.C. Jankowska he had peed his pants and he was quite upset. P.C. Jankowska told the defendant she had not realized he had to go as bad as he did but she had to wait for the male officer to get there.

[17] P.C. Jankowska left the scene at 19:13 to drive to 5 District police station and arrived at 19:25. On the drive to the police station P.C. Jankowska observed that Mr. Scheitrowsky appeared to be very intoxicated. He said he thought the whole situation was funny and wondered if the video of him in the police car would be posted on YouTube. The officer advised her car was not equipped with an in-car camera so there was no video. He started shouting at the window and wanted the officer to roll down the window so he could shout at passing motorists.

[18] He asked the officer if she would turn on the radio, which she did. When a song was playing Mr. Scheitrowsky began to sing "I'm so drunk, I'm so drunk" to the tune of the song. When they arrived at the 5 District police station, she opened the rear passenger door, Mr. Scheitrowsky exited the vehicle and as he walked to the door he stumbled. This can be seen on the sally port video, Exhibit 3.

[19] The officer testified that as a result of Mr. Scheitrowsky's conduct in the police vehicle she formed the belief he was impaired as a result of the consumption of alcohol.

[20] Mr. Scheitrowsky was brought before Acting Staff Sgt. Altermann. He did not want to stand on the line; he kept stepping off the line and was slightly unsteady on his feet. It appeared that P.C. Leibold was holding Mr. Scheitrowsky up by holding onto his arm and his hands, which were still handcuffed behind his back. It is clear on the video that P.C. Leibold is holding the defendant up so he does not fall down. Mr. Scheitrowsky complained about peeing his pants and was told by the Acting Staff Sgt. that he would be provided with alternate clothing to put on. When he was advised by the Acting Staff Sgt. the booking area was video-taped, Mr. Scheitrowsky laughed and looked up at the camera and stuck his tongue out. (Time on video is 19:32:09.) The booking hall video is Exhibit 3.

[21] At different times on the video-tape, in the booking hall, Mr. Scheitrowsky can be seen bending his knees as if he is jumping up and down. At one point he appears to be stumbling over his feet, is unsteady and has to be supported by the officer. (Time on video is 19:32:40.) At another time he is bouncing up and down by bending his knees. (Time on video is 19:35:08.)

[22] P.C. Jankowska testified the booking process took longer than normal because of Mr. Scheitrowsky's behaviour and he was not listening to what the Acting Staff Sgt. was saying. The Acting Staff Sgt. had to repeat things over and over to the defendant. At one point P.C. Jankowska also stood beside Mr. Scheitrowsky and took hold of his left arm because she became concerned Mr. Scheitrowsky was going to spit on P.C. Leibold as he kept turning and looking at him.

[23] Mr. Scheitrowsky did not consume any alcohol from the time she first spoke to him in the parking lot until he was turned over to the qualified breath technician. P.C. Jankowska observed throughout her dealings with Mr. Scheitrowsky that his face was a bit flushed, he was unsteady on his feet when walking or standing and he repeatedly wanted to talk about his having peed himself.

[24] In cross-examination the officer agreed his bizarre behaviour in the police car and at the police station occurred after he had peed himself. She agreed the issue surrounding the birthdate could have been caused by the air bag deploying but she asked him if he was okay and he said he was. She observed no visible injuries and Mr. Scheitrowsky did not complain about anything.

[25] P.C. Jankowska testified it appeared from the physical evidence at the scene that Mr. Scheitrowsky was coming from the west, mounted or struck the planter, continued eastbound and struck the parked Volkswagen. There were dirt tracks from the planter to the collision with the Volkswagen.

[26] After the Crown closed her case the defence elected to call no evidence.

Analysis

[27] Mr. Neziol originally had filed a Charter application alleging P.C. Jankowska did not have a reasonable suspicion to make an approved screening device demand pursuant to s. 254(2) of the Criminal Code and consequently, the breath reading obtained ought to be excluded. As a result of the Crown's decision to only proceed on the impaired driving charge, Mr. Neziol did not pursue the Charter application as it related to whether P.C. Jankowska had a reasonable suspicion Mr. Scheitrowsky had alcohol in his body. It is my view; however, even if Mr. Neziol had pursued the s. 8 breach respecting whether the officer had a reasonable suspicion Mr. Scheitrowsky had alcohol in his body, the smell of alcohol alone coming from Mr. Scheitrowsky's breath from his mouth was sufficient (see R. v. Carson, 2009 ONCA 157 and R. v. Lindsay, 134 C.C.C. (3d) 159) to satisfy the requirement in s. 254(2). Consequently, I find P.C. Jankowska had a reasonable suspicion Mr. Scheitrowsky had alcohol in his body and his registering a fail on the ASD provided reasonable and probable grounds for her to arrest Mr. Scheitrowsky for over 80.

[28] Mr. Neziol seemed to suggest by his questioning of P.C. Jankowska that her decision to administer the ASD was to rule out a head injury to Mr. Scheitrowsky as a result of the collision and the deployment of the air bag. I accept P.C. Jankowska's evidence that her justification for making the ASD demand was the smell of alcohol coming from Mr. Scheitrowsky's mouth and his subsequent admission he had one drink earlier at Kelsey's. If the ASD result demonstrated Mr. Scheitrowsky was not above the legal limit, P.C. Jankowska testified she would have contacted dispatch to send medical personnel to conduct an assessment. She had asked Mr. Scheitrowsky when she first arrived if he was okay and he had responded he was okay. He had no visible injuries, no bleeding or bruising and made no complaints of pain or headache. I accept her evidence in this regard and find that she had a reasonable suspicion Mr. Scheitrowsky had alcohol in his body.

[29] Mr. Neziol argued the collision occurred at 5:30 p.m., based on Ms. Chang's evidence in-chief:

Q. Okay and what were you doing there that day?

A. I was in Home Depot and I just came out of Home Depot when the incident occurred.

Q. What time of day was this?

A. Around 5:30—ish. Evening time.

[30] No other questions were asked by either Crown or defence to ascertain what Ms. Chang meant by around 5:30 – ish. It was clear the Crown was not concerned with the time the collision occurred because she was no longer proceeding on the over 80 charge. The time provided by Ms. Chang is not based upon her testifying she looked at her watch when she heard the screeching of tires and the loud impact. It is an estimate. P.C. Jankowska testified she was dispatched at 18:21 (or 6:21 p.m.) to attend the mall situated at 3135 Highway 7 East. Ms. Chang testified she did not call 911 as she believed another person who was aware of the collision had done so. It is my view, based on the totality of the evidence, it does not matter exactly when the collision occurred. The observations of Ms. Chang and P.C. Jankowska at the scene and P.C. Jankowska's observations of Mr. Scheitrowsky's bizarre, inappropriate behaviour in the police cruiser are within two hours after the collision, even assuming the 5:30 p.m. time was specific and exact. In fact, the further observations seen of Mr. Scheitrowsky's behaviour on video in the booking hall occur between 19:27 to 19:40, which is only just past two hours from the time of the collision assuming the 5:30 p.m. time was an exact time.

[31] Mr. Neziol argued I could not take into account the behaviour exhibited by Mr. Scheitrowsky as seen in the sally port or booking hall videos because of the significant time that had elapsed from the collision. He further argued it was critical for the judge to only consider evidence from which a determination could be made as to whether the ability to operate a motor vehicle was impaired by the consumption of alcohol. He submitted the bizarre behaviour exhibited by his client only demonstrated his impairment when the videos were taken and had no relevance to the time of driving when the collision occurred. He also questioned whether the videos should be admitted into evidence because of the significant lapse of time. In R. v. Hebert, [2004] O.J. No. 1316 (Ont. S.C.), Hill J., in dealing with the use to be made by a trier of fact of video evidence, held at para. 38:

Before returning to the reasonableness of the verdict, I will initially address the submissions of the appellant regarding Exhibit #1. The appellant challenges the trial judge's resort to matters revealed in the videotape exhibit in concluding her guilt. The trier of fact is entitled to study the intoxilyzer room video as original evidence on the impairment issue: R. v. Nikolovski, [1996] 3 S.C.R. 1197 at 412-3, 416-7. For example, the trial judge reasonably considered certain events to be probative of the commission of the s. 253(a) offence including the appellant's error as to the orange chair, her flushed cheeks, her understatement of the wine consumed, her poor performance in various physical sobriety tests, and her unsteadiness on her feet.

[32] I do not accept Mr. Neziol's submissions respecting the video evidence from 5 District. In my view, this evidence is part of the totality of the evidence relating to the issue of impairment of Mr. Scheitrowsky's ability to drive as a result of his consumption of alcohol. The defence often utilizes video evidence from the police station to demonstrate the defendant is not impaired, as there was no unsteadiness or swaying or stumbling. The station video is often used to discredit the evidence of the investigating officer. I am fully cognizant of the need to only draw reasonable inferences respecting impairment by alcohol of the defendant's ability to operate a motor vehicle. Further, if there had been an in-car camera in the police cruiser, I would be entitled to examine that video to determine if it provided any evidence relating to the issue of impairment. Since P.C. Jankowska's police cruiser was not equipped with an in-car camera I must examine her evidence of Mr. Scheitrowsky's conduct and determine how it relates to the issue of whether Mr. Scheitrowsky's ability to operate a car was impaired by his consumption of alcohol.

[33] It was P.C. Jankowska's evidence that she formed reasonable and probable grounds to arrest Mr. Scheitrowsky for the offence of operation of a motor vehicle while impaired by alcohol as a result of his bizarre behaviour in the police cruiser, as well as her observations concerning the physical evidence at the scene relating to the collision and other indicia of impairment she had observed at the scene. Mr. Scheitrowsky's conduct before the booking Staff Sergeant further supported her reasonable belief that Mr. Scheitrowsky's ability to operate a motor vehicle was impaired by the consumption of alcohol.

[34] Mr. Neziol argued the statements made by Mr. Scheitrowsky after the officer arrived on scene at 18:29 should be excluded, as they were compelled by s. 199 of the Ontario Highway Traffic Act and their admission would violate the principle against self-incrimination as protected in s. 7 of the Charter. It was the defence position that Mr. Scheitrowsky's initial denial of alcohol consumption and his later admission of alcohol consumption, as well as his confusion over his birthdate should be excluded pursuant to R. v. White, [1999] 2 S.C.R. 417 and R. v. Soules, 2011 ONCA 429, 273 C.C.C. (3d) 496.

[35] In R. v. White, supra, the Supreme Court of Canada held that statements made under compulsion in compliance with the Motor Vehicle Act of B.C. were not admissible in criminal proceedings against the declarant because their admission would violate the principle against self-incrimination enshrined in s. 7 of the Charter. Iacobucci J., writing for the majority, held, at paras. 74 and 75, that:

74 A declarant under s. 61 of the Motor Vehicle Act will be protected by use immunity under s. 7 of the Charter only to the extent that the relevant statements may properly be considered compelled. Accordingly, the driver has an interest in knowing with some certainty precisely when he or she is required to speak, and when he or she is permitted to exercise the right to remain silent in the face of police questioning. Conversely, the ability of the state to prosecute crime will be impaired to the extent of the reporting requirement under s. 61 of the Motor Vehicle Act. Thus the public, too, has a strong interest in identifying with some certainty the dividing line between the taking of an accident report under s. 61, on the one hand, and ordinary police investigation into possible crimes, on the other. When will a driver's answers to police questioning cease to be protected by the use immunity provided by s. 7 of the Charter?

75 ... In my view, the test for compulsion under s. 61(1) of the Motor Vehicle Act is whether, at the time that the accident was reported by the driver, the driver gave the report on the basis of an honest and reasonably held belief that he or she was required by law to report the accident to the person to whom the report was given. (Emphasis and underlining added)

[36] In the passage above, Justice Iacobucci poses the question "When will a driver's answers to police questioning cease to be protected by the use-immunity provided by s. 7 of the Charter?" In para. 76 he answers this question as follows:

The requirement that the accident report be given on the basis of a subjective belief exists because compulsion, by definition, implies an absence of consent. If a declarant gives an accident report freely, without believing or being influenced by the fact that he or she is required by law to do so, then it cannot be said that the statute is the cause of the declarant's statements. The declarant would then be speaking to police on the basis of motivating factors other than s. 61 of the Motor Vehicles Act. (Emphasis added)

[37] In R. v. Manley, [2007] O.J. No. 5103, (Ont. C.J.), Wake J. held:

In determining whether or not an accident report was made pursuant to a statutory duty it is important for a trial judge to be mindful of which party bears the onus of proof. Iacobucci, J. places that onus clearly on the accused. At paragraph 81 he states:

The accused who raises a Charter challenge to the admissibility of evidence bears the onus of establishing an infringement of his or her Charter rights. Thus, where an accused seeks to argue that the admission of a statement into evidence will violate the principle against self-incrimination under s. 7 because he or she was compelled to make the statement by the terms of a provincial statute, it is the accused who must establish on the balance of probabilities that the statement was compelled.

[38] Consequently, the onus is upon the defendant to prove on a balance of probabilities that he had an honest and reasonably held belief that he had to provide information to the police and that he made the statements because of that belief. Statements may be excluded where the court finds that the defendant was influenced by as little as a generalized, non-specific understanding of a driver's responsibilities to report the details of an accident under the Highway Traffic Act: R. v. DaCosta, 156 C.C.C. (3d) 520. However, the defendant's knowledge of the nature and extent of any damages or injuries that might trigger a statutory duty to report are factors in determining the reasonableness of the defendant's belief that he was compelled by law to inculpate himself: White, supra, at para. 78.

[39] Section 199 of the Ontario Highway Traffic Act (the "HTA") requires drivers involved in certain types of accidents to report them to the police:

199. (1) Every person in charge of a motor vehicle or street car who is directly or indirectly involved in an accident shall, if the accident results in personal injuries or in damage to property apparently exceeding an amount prescribed by regulation, report the accident forthwith to the nearest police officer and furnish him or her with the information concerning the accident as may be required by the officer under subsection (3). R.S.O. 1990, c. H.8, s. 199(1); 2002, c. 17, Sched. F, Table.

Officer may direct person to report accident at another location

(1.1) If, on reporting the accident to the nearest police officer under subsection (1), the person is directed by the officer to report the accident at a specified location, the person shall not furnish the officer described in subsection (1) with the information concerning the accident but shall forthwith attend at the specified location and report the accident there to a police officer and furnish him or her with the information concerning the accident as may be required by the officer under subsection (3). 1997, c. 12, s. 15; 2002, c. 17, Sched. F, Table.

Where person unable to report

(2) Where the person is physically incapable of making a report and there is another occupant of the motor vehicle, the occupant shall make the report. R.S.O. 1990, c. H.8, s. 199(2).

Duty of police officer

(3) A police officer receiving a report of an accident, as required by this section, shall secure from the person making the report, or by other inquiries where necessary, the particulars of the accident, the persons involved, the extent of the personal injuries or property damage, if any, and the other information that may be necessary to complete a written report concerning the accident and shall forward the report to the Registrar within ten days of the accident. R.S.O. 1990, c. H.8, s. 199(3).

Report of police officer

(4) The report of a police officer under subsection (3) shall be in the form that is approved by the Minister. R.S.O. 1990, c. H.8, s. 199(4).

Regulations as to amount of property damage

(5) The Lieutenant Governor in Council may make regulations prescribing the amount of property damage for the purposes of subsection (1). R.S.O. 1990, c. H.8, s. 199(5).

It is my view there is little distinction between s. 61 of the Motor Vehicle Act of B.C. and s. 199 of the Ontario Highway Traffic Act as both statutory schemes require motorists to report an accident where the damages are over a certain amount or there are personal injuries involved.

[40] In R. v. Parol, 2011 ONCJ 292, [2011] O.J. No. 2641, Justice Duncan set out the facts in White, supra, as follows in para. 5:

The facts and legal context of the White case are important. A man changing his tire at night on a highway was struck and killed by a passing vehicle that did not stop. The next day Ms. White called the police station to report that she had been involved in an accident which she described and which coincided with the fatality. Police attended at her home and ultimately obtained a statement from her. The police repeatedly told White that the statement was in furtherance of preparation of the report that she was obliged by provincial legislation to complete. They told her that it could not be used against her, as the statute provided. [1] However the defendant was later charged with hit and run under the Code and the Crown attempted to rely on the statements to prove White's identity as the driver. It was in this specific context that the Supreme Court of Canada held that use of the statements in the report to incriminate the defendant in a criminal case would violate section 7 of the Charter.

[41] In R. v. Parol, supra, Duncan J. held that White applies only to the making of an accident report, and not to an "ordinary police investigation" (at para. 6). He held, at para. 7, that, in order to fit within White, an defendant must establish three things, namely:

1. That he was in fact compelled by statute to provide a report.
2. That the statements he made were a 'report" within the meaning of the compelling statute.
3. That he gave his report in the honest and reasonable belief that he was compelled by the statute to do so.

This interpretation of White has been adopted in two Ontario Superior Court judgments, R. v. Wenham, 2013 ONSC 7431, [2013] O.J. No. 5535, Ellies J. and R. v. Bhangal, 2013 ONSC 3156, Hourigan J., (see para. 46).

[42] I agree with Justice Duncan's analysis which separates points 2 and 3 to ensure "that the basic requirement that the communication be a "report of an accident" (see underlining in quote from White above)" is not overlooked (see para. 7 in Parol). If the statements made by the defendant to the investigating officer cannot reasonably be viewed as an accident report then the defendant's claim of believing he was compelled to make it because of an accident reporting statute is unreasonable and not credible.

[43] Further, in R. v. Soules, supra, at paras. 25-44, the Ontario Court of Appeal held the ratio in R. v. White provided that where a court finds a s. 7 Charter breach, the Crown is prohibited from utilizing any "statutorily compelled admissions" to found a s. 254(3) breath demand. Such statements, said the Court, are "not admissible for the purpose of establishing grounds for making either the A[pproved] S[creening] D[emand] or the breath demand" under s. 254.

[44] P.C. Jankowska testified when she first arrived she tried to ascertain what had happened respecting the collision between the Camry driven by Mr. Scheitrowsky with the parked Volkswagen. She spoke to Ms. Chang and to Mr. Scheitrowsky. Initially she was intending to conduct a motor vehicle collision investigation. She observed a concrete planter to the west of where the black Volkswagen was pushed by the collision. There was also a trail of dirt or mud from the concrete planter moving easterly towards the Volkswagen. She drew the reasonable inference that the Camry drove over or had come into contact with the planter and then continued on into the Volkswagen. She drew a diagram, Exhibit 2, which depicted her observations. On the diagram, Exhibit 2, the planter appears to be beside the roadway where cars would proceed north and south to turn into the east/west aisles to park in the parking lot.

[45] P.C. Jankowska asked Mr. Scheitrowsky for his birth date and he provided her with a date that did not make sense: 1995—05 – 95. Despite being advised several times this birth date did not make sense, Mr. Scheitrowsky repeated it. Eventually he provided his correct birth date. It was during this conversation P.C. Jankowska testified she detected a slight odour of alcohol coming from Mr. Scheitrowsky's mouth. As a result of detecting the odour of alcohol P.C. Jankowska asked again if he had been drinking and he admitted having one drink at Kelsey's. In cross-examination P.C. Jankowska agreed she was conducting an investigation under the Highway Traffic Act into the motor vehicle collision and Mr. Scheitrowsky was required to answer her questions. This is the only evidence respecting the issue of whether Mr. Scheitrowsky was compelled to answer the officer's questions.

[46] The real issue to be determined is whether Mr. Scheitrowsky had a subjective belief that he had to answer the officer's questions, which was reasonable in the circumstances. As I have indicated above, it is not every case where R. v. White, supra, is applicable. Section 199 of the HTA provides there is an obligation to make a report of a motor vehicle collision where there are personal injuries or property damage between the vehicles that exceeds a certain amount as set by regulation. It is my understanding the regulation under the HTA sets this amount at $5,000. I did not hear any evidence as to any estimate of the damage which resulted from this motor vehicle collision. No photographs of the two cars were filed as exhibits. Further, I did not hear from Mr. Scheitrowsky on the s. 7 voir dire (although it was a blended hearing, he could have testified before the Crown closed its case), that he subjectively believed he was required to answer the officer's questions or that he had a positive obligation to provide an explanation for the collision.

[47] It is my view the defence has not established on a balance of probabilities that his denial he had consumed alcohol and later his admission he consumed a drink at Kelsey's or the confusion he exhibited when providing his birth date were compelled. Further, his explanation of how the collision occurred is already before the court from Ms. Kelly Chang, to who he was under no compulsion to provide an explanation. I find his willingness to provide this explanation to Ms. Chang demonstrates his statements to P.C. Jankowska were voluntary and not because he believed he was compelled or required to provide them by statute. Consequently, it is my view these comments by Mr. Scheitrowsky to the officer must be considered with all of the evidence led by the Crown respecting the issue of impairment and ability to drive.

[48] There is no definition of "impairment" in the Criminal Code. It is a factual question that must be decided on the evidence in each case: R. v. Stellato, 78 C.C.C. (3d) 380 affirmed, [1994] 2 S.C.R. 478; Graat v. The Queen, 2 C.C.C. (3d) 365, at 400-401. The critical question, however, is whether the requisite impairment occurred, not the degree of any impairment. As said by the Ontario Court of Appeal in R. v. Stellato, supra, at para. 10, adopting the language of the Prince Edward Island Court of Appeal in R. v. Campbell, 87 Nfld. & P.E.I.R. 269, at 320:

It is not an offence to drive a motor vehicle after having consumed some alcohol as long as it has not impaired the ability to drive. However, a person who drives while his or her ability to do so is impaired by alcohol is guilty of an offence regardless of whether his ability to drive is greatly or only slightly impaired. [Emphasis added.]

And later, at para. 14:

[B]efore convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out. [Emphasis added.]

[49] The core issue is not whether the defendant drank and drove but whether that drinking impaired his ability to drive. The legal basis for this argument is set out in the oft-quoted case of R. v. Andrews, 1996 ABCA 23, 104 C.C.C. (3d) 392, at paras. 19, 20, 24, 27; leave to appeal refused, [1996] S.C.C.A. 115, 106 C.C.C. (3d) vi (S.C.C), which adopts, explains and applies the reasoning in Stellato:

[I]t is so important not to deal with the issue of impairment separate from impairment of one's ability to drive. Stellato must not be understood to mean that a person who has anything to drink and then drives a motor vehicle commits the offence under s. 253(a) [now s. 253(1)(a)]. Nor does it mean any lack of sobriety is sufficient. ...

The ratio of the judgment in Stellato is that it is not necessary for the Crown to establish a marked degree of impairment of the accused's ability to drive; rather, any degree of impairment of that ability, if proved beyond a reasonable doubt, will sustain a conviction.

... [Stellato] speaks to degree of proof. In other words, as framed in Stellato, the conduct must be of such a nature that an impairment of the ability to operate a vehicle (be it slight or marked impairment) is proven beyond a reasonable doubt.

... It is not deviation from normal conduct, slight or otherwise, that is in issue. What is in issue is the ability to drive. Where circumstantial evidence alone or equivocal evidence is relied on to prove impairment of that ability, and the totality of that evidence indicates only a slight deviation from normal conduct, it would be dangerous to find proof beyond a reasonable doubt of impairment of the ability to drive, slight or otherwise.

[50] In R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453, at para. 47, the Ontario Court of Appeal cited Stellato and Censoni with approval and held, "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, and regard for the rules of the road: Censoni at para. 47."

[51] In my view, the Crown has proven the charge of impaired operation beyond a reasonable doubt based on the totality of the evidence. I find the evidence of Ms. Kelly Chang to be reliable and credible. I find P.C. Anna Jankowska was a fair, responsible and reliable police officer. Her observations of Mr. Scheitrowsky's behaviour in her police cruiser were confirmed by Ms. Chang's observation of Mr. Scheitrowsky exiting his vehicle, giggling and laughing with his passenger after the collision. Ms. Chang testified she viewed Mr. Scheitrowsky's behaviour to be completely inappropriate. This inappropriate behaviour continued after Mr. Scheitrowsky failed the ASD, respecting his conduct in the police cruiser and at 5 District police station. This provided P.C. Jankowska with reasonable grounds to arrest Mr. Scheitrowsky for the offence of operating a motor vehicle while his ability was impaired as a result of the consumption of alcohol.

[52] I find Mr. Scheitrowsky's comments to the officer in the back of the police vehicle, respecting his urinating in his pants and the video being posted on YouTube, clearly demonstrate the effect his consumption of alcohol had on his ability to properly assess the serious situation he found himself in. His wanting the window to be lowered so he could call out to passing motorists or pedestrians further demonstrates the effect of the alcohol on his judgment. Mr. Scheitrowsky admitted in the back of the police vehicle his state of intoxication when he began singing to a song on the radio, "I'm so drunk, I'm so drunk." I find this bizarre behaviour is directly relevant to my assessment of whether Mr. Scheitrowsky's ability to operate a motor vehicle was impaired by his consumption of alcohol. I find this impairment of his judgment, as a result of his consuming alcohol, would clearly impair his ability to operate a motor vehicle, which involves complex motor functions such as perception on field of vision, reaction or response time and regard for the rules of the road as referred to in R. v. Bush, supra.

[53] Mr. Neziol had initially argued the comments made by Mr. Scheitrowsky in the back of P.C. Jankowska's police cruiser should be excluded based on R. v. White, supra, and R. v. Soules, supra. During oral submissions he advised he was abandoning this argument as it was clear from P.C. Jankowska's testimony Mr. Scheitrowsky had initiated the comments in the back of the police cruiser voluntarily, after he had been arrested and cautioned by P.C. Jankowska. These voluntary statements were not in any way compelled by a duty to report an accident, pursuant to s. 199 of the Ontario Highway Traffic Act.

[54] Mr. Neziol also argued I should not consider any of the bizarre behaviour demonstrated by Mr. Scheitrowsky at the police station because of the lapse of time respecting his driving behaviour that resulted in the collision, which was first heard by Ms. Chang and her later observations of Mr. Scheitrowsky's car in collision with the parked Volkswagen.

[55] Mr. Scheitrowsky was unsteady on his feet when he walked from the police cruiser in the sally port of the police station to go to the booking hall, as seen in the video. Further, it is clear from watching the video that while he is standing before the booking Staff Sergeant he was unsteady on his feet, he was unable to stand on the line painted on the floor and he had to be supported initially by P.C. Leibold and then later by both P.C. Leibold and P.C. Jankowska. From my review of the video, it is my view Mr. Scheitrowsky would have fallen down or been swaying side to side or exhibited more unsteadiness had the officers not been supporting him. He demonstrated inappropriate, bizarre behaviour when he was advised by the Staff Sergeant about being video-taped and stuck out his tongue at the camera and then waved his hands. Given his situation of being under arrest for a drinking and driving offence this behaviour also demonstrated his lack of judgment and the effect his consumption of alcohol was having on him. I find this lack of judgment, impaired thinking and behaviour is directly relevant to his ability to operate a motor vehicle.

[56] Consequently, it is my view, based on the totality of the evidence, Mr. Scheitrowsky's ability to drive was clearly impaired by his consumption of alcohol. I rely on the following pieces of evidence in coming to this conclusion:

1. The collision itself. The evidence disclosed there were clearly marked roadways for cars to travel on before pulling into a parking spot. Mr. Scheitrowsky drove across a concrete planter, which was acting as part of the curb for the roadway.

2. Mr. Scheitrowsky's giggling and laughing with his passenger as he exited his vehicle after striking the Volkswagen with enough force to deploy his air bag.

3. Mr. Scheitrowsky's explanation as to why he collided with the parked car to Ms. Chang and later the officer that his steering wheel seized, which was clearly not true as he was able to reverse and turn his wheels so he could move from facing east to facing north.

4. Mr. Scheitrowsky's answer on several occasions as to his birthdate, despite the officer indicating what he was saying did not make sense.

5. P.C. Jankowska detecting a slight odour of alcohol on Mr. Scheitrowsky's breath when speaking to him after he had stopped smoking.

6. Ms. Chang described Mr. Scheitrowsky's face as being pinkish or reddish.

7. Mr. Scheitrowsky peed his pants.

8. Mr. Scheitrowsky's comments concerning the video of his being in the back of the police cruiser having peed his pants being posted on YouTube. While he was talking about this he was laughing as he thought this was funny.

9. Mr. Scheitrowsky asking P.C. Jankowska to lower the passenger window so he could call out to passing motorists or pedestrians. When the officers did not comply with his request, he began yelling through the closed window.

10. Mr. Scheitrowsky singing with a song on the radio, "I'm so drunk, I'm so drunk."

11. P.C. Jankowska's opinion Mr. Scheitrowsky was very intoxicated when he was in the back of her police cruiser.

12. Mr. Scheitrowsky's unsteadiness and slight stumble as he walked from the sally port to the booking hall, as seen on the video.

13. Mr. Scheitrowsky's not being able to stand on the line painted on the floor as directed by the officers.

14. Mr. Scheitrowsky's behaviour upon being told there were cameras in the station; he looked at the camera, stuck out his tongue and waved.

15. P.C. Leibold had to hold onto Mr. Scheitrowsky so he did not fall because of his unsteadiness on his feet.

16. P.C. Jankowska having to assist in holding up Mr. Scheitrowsky with P.C. Leibold and her becoming involved because she was concerned Mr. Scheitrowsky was going to spit at P.C. Leibold.

[57] All of the above evidence of impairment, considered in their totality, satisfies me beyond a reasonable doubt that Mr. Scheitrowsky's ability to operate a motor vehicle was impaired by the consumption of alcohol. Consequently, there will be a conviction registered.

Released: June 17, 2015

Signed: "Justice Peter C. West"

Footnote

[1] This immunity would not extend to criminal proceedings, the province having no authority in that area. It does not appear that the police in White were aware of that or if they were, that they conveyed the distinction to White. The Ontario statute does not contain a use-immunity provision. (Footnote provided by Justice Duncan in Parol, supra.)