Court File and Parties

Ontario Court of Justice

Date: 2015-10-16

Court File No.: Brampton 13-4715

Between:

Her Majesty the Queen

— and —

Bobby Medeiros

Before: Justice J. W. Bovard

Heard on: August 25, 2014 and August 12, 2015

Reasons for Judgment released on: October 16, 2015

Counsel:

• J Thompson and C Sibian, counsel for the Crown
• J Bogel, counsel for the defendant Bobby Medeiros

BOVARD J.:

[1] These are the court's reasons for judgment after the trial of Bobby Medeiros on charges of impaired driving and 'over 80'.

Issues

[2] The issues are the following:

1. Was Mr. Medeiros driving?
2. Did the arresting officer have reasonable and probable grounds to arrest Mr. Medeiros?
3. Did the arresting officer breach Mr. Medeiros's rights under section 8 of the Charter? If he did, should the results of the Intoxilyzer breath test be excluded under s. 24(2) of the Charter?
4. The voluntariness of statements made by Mr. Medeiros in the breath room.

[3] The defence made the following admissions:

1. Identity (as the person that was arrested only) and jurisdiction;
2. The expertise of Dr. Corbett as a toxicologist;
3. The expertise of officer Bryan Carroll, as a canine officer with knowledge about dog training expertise.
4. The Intoxilyzer was in proper working order.

The Evidence

[4] Martin Markotic testified that he and Mr. Medeiros are longtime friends. They were together at a party on the night in question. He said that he did not have 100% memory of "every single event that day". He remembered "bits and pieces of the night".

[5] They went to the party separately. When Mr. Markotic got there Mr. Medeiros was asleep on the couch. He did not know how Mr. Medeiros got to the party. They were all watching a Leafs game.

[6] He said that "we were all drinking, so it was just-there was no way-like he [Mr. Medeiros] was like passing out and stuff". Mr. Markotic had at the most four drinks.

[7] He said that Mr. Medeiros's friend came to drive Mr. Medeiros when he decided to leave the party. Mr. Medeiros "got in the backseat of the car and he was-like he was finished". Mr. Medeiros "got put into a car". He believes that it was Mr. Medeiros's car, but Mr. Medeiros was not driving. Mr. Medeiros couldn't "stand and stuff, so he wasn't doing too well that night".

[8] "There was a bunch of people helping him…the last I remember him, he was totally like sleep…he was done". He said that there was no way that he could operate the vehicle at that time. He was "completely out [of] it". Mr. Markotic thinks that it was "for sure after 1:00, 2:00 a.m." however, he did not know the exact time.

[9] Mr. Markotic did not leave the party with Mr. Medeiros. He never drove Mr. Medeiros's car on the night in question. Nor was he in an accident with Mr. Medeiros that night.

[10] Officer Carroll responded to a 911 call from a resident saying that there was someone out on the street who had just been involved in a car accident. There was also a call from a tow truck driver at 4:06 AM.

[11] He met Mr. Medeiros for the first time at 4:19 AM in front of 1581 Clearwater Drive in Mississauga. This was about 600 meters from where Mr. Medeiros had just had an accident. But Officer Carroll did not know that yet. Mr. Medeiros walked towards his cruiser. He was "sort of staggering". He could not walk in a straight line.

[12] This was not in his "original notebook entries". He said that he put it in his "yellow notes", which he made "at the time in the vehicle". Officer Carroll said that he has a blue notebook that he carries "daily to make notations in". The Peel Regional Police gave officers the yellow notes "to help simplify dealing with impaired or over 80 cases…It's common practice for officers dealing with impaired or over 80 cases to – as soon as they know or realize that's what they're dealing with go straight to the yellow notes".

[13] Officer Carroll said that he has experience with persons who have suffered concussions. They seem to be "confused, light-headed, unsure where they are". He agreed that in the breath room video Mr. Medeiros said that he thought he was in Milton as opposed to Mississauga. In addition, Mr. Medeiros was confused about certain things that were said to him.

[14] Officer Carroll testified that Mr. Medeiros did not show signs that he is familiar with that indicate a concussion. He said that "In my observations it didn't appear that he had a concussion. It appeared to me that he was intoxicated and he hit his face off the airbag, which was deployed in the driver's seat".

[15] Officer Carroll agrees that Exhibit 6, which is an emergency record from the Mississauga hospital, dated April 13, 2014 at 1:19 PM, shows that Mr. Medeiros suffered a mild concussion.

[16] There was no way to determine the time of the accident, but Mr. Medeiros said that he had just been in an accident. Officer Carroll could smell the odour of an alcoholic beverage from his breath. Mr. Medeiros had dried blood in his goatee and a couple of blood droplets on his shirt.

[17] Other than that the officer did not see any injuries. He said that these injuries "would suggest…having an airbag deployed in his face…" Officer Carroll could not say whether the injuries could have resulted from Mr. Medeiros lying in the back seat and getting hit with something as the car flipped over. Mr. Medeiros told him that he had been sitting in the passenger seat.

[18] At this time, the officer got a call with regard to a single motor vehicle collision at "Dixie and Rometown", approximately 600 m to the east of them. It is difficult to determine when or how the accident occurred because there were no witnesses to the accident.

[19] But Officer Carroll's received information was that Mr. Medeiros was the registered owner of the vehicle. Based on this he cautioned Mr. Medeiros for impaired driving and asked him to sit in the rear of his cruiser until he could figure out what was happening. Mr. Medeiros was slightly off balance when he got into the cruiser.

[20] Mr. Medeiros told him that he had been involved in the accident but he was not driving. He did not know who had been driving his vehicle. Mr. Medeiros was crying.

[21] Mr. Medeiros's car had flipped onto the roof and had severe front-end damage. The passenger side seat was seriously damaged. Only the driver's side airbag had been deployed. Officer Carroll heard over his radio from officer Glaab that there was no evidence of any other person being in the vehicle.

[22] Officer Carroll concluded that "there was only one driver in the vehicle". At 4:26 AM he arrested Mr. Medeiros for impaired driving. He was satisfied that Mr. Medeiros was intoxicated and that the evidence suggested that he was the driver. Therefore, he did not think it was necessary to administer a roadside screening device breath test.

[23] After his arrest, Mr. Medeiros became "very belligerent, rude, aggressive in his language, and that continued right through the interview until the time that he was actually lodged".

[24] 4:27 AM, he gave Mr. Medeiros his rights to counsel. At 4:28 AM, he cautioned him again. Mr. Medeiros said, "Yeah."

[25] At 4:53 AM, he made the breath demand. Mr. Medeiros said "Okay. Let's do it right now".

[26] At 5:11 AM, Officer Carroll went to the scene of the accident with Mr. Medeiros. He waited for Officer Houlihan, a canine officer, to conclude his investigation.

[27] Shortly, Officer Houlihan told Officer Carroll that "there was no second person involved in this accident". Mr. Medeiros said that Mr. Markotic had been the driver of the vehicle. Neither Mr. Markotic nor anyone else was ever located around the vehicle or in the vicinity.

[28] But Officer Carroll said that this was a high-traffic area and agreed with defence counsel's suggestion that people come in and out of that area frequently. The officer also agreed that it was "possible that whoever may have been within the area could've gotten in and out of that area quickly, because it's a high traffic area".

[29] Officer Carroll took Mr. Medeiros to the police station for breath tests. He did not say what time they left for the police station. They arrived at 5:21 AM. Mr. Medeiros was slightly off balance getting out of the car.

[30] Mr. Medeiros was booked into the station. At 5:52 AM, Officer Carroll took him to the breath room.

[31] Officer Carroll took back custody of Mr. Medeiros at 6:35 AM. At 6:36 AM, he served Mr. Medeiros with the certificate of a qualified technician. His readings were 180 and 170 mg of alcohol in 100 mL of blood. At the bottom of the certificate there is a notice that "it is intended to produce this certificate at your trial". Mr. Medeiros refused to sign the notice.

[32] Officer Carroll testified on a voir dire that during his dealings with Mr. Medeiros, he did not threaten, make any promises or offer any inducements to him. He did not see any other police officer do any of these things either.

[33] Officer Houlihan testified as an expert in dog tracking. The dog that he works with is named, Scout. Scout's abilities are very good. Scout has to pass a test every November in order to keep working as a police dog.

[34] Officer Houlihan received information over the police radio that a male had been detained because he was knocking on doors seeking help close to the location of a car accident.

[35] He and Scout arrived at the scene of the accident at 4:30 AM. He saw a significantly damaged car. It had run head-on into a tree. The passenger airbag had not been deployed. There was no blood to indicate that anyone hit the windshield. Officer Houlihan did not notice any signs of injuries on the driver side. However, he did not inspect carefully.

[36] There were no meteorological conditions that would affect Scout's ability to track. The conditions were pristine for tracking. Scout only picked up one scent around Mr. Medeiros's car. However, Officer Houlihan said that Scout is trained to pick up the strongest scent.

[37] Once Scout picked up the strongest scent, Officer Houlihan did not pull him off the track to look for other scents.

[38] They followed the scent for 100 m. They wound up at Rometown Road. Scout went up to the front doors of two or three different homes and circled around the cars that were in the driveways. Officer Houlihan said that this was consistent with a person going up to the front area of the houses and then back down to the street.

[39] At 4:51 AM, they turned onto Clearwater Street to where Scout had followed the scent. They found Mr. Medeiros there with the police.

[40] Officer Houlihan and Scout continued tracking. They were searching for evidence of other occupants in Mr. Medeiros's car that could have gone off in other directions from the car. This time Scout was not searching just for the strongest scent, but for any other scents that were around Mr. Medeiros's car.

[41] At some point earlier during the evening a person had come by the scene in a taxi. However, the person did not get out of the taxi. Therefore, the person would not have left a scent on the scene. Neither would have the police officers that were standing around the scene have left a scent there because a person does not leave a scent by just standing around a location.

[42] Officer Houlihan testified that if two persons had fled the area Scout would have picked up two scents. Scout did not find any such evidence. Officer Houlihan did not have any contact with Mr. Medeiros.

[43] Officer Mullings attended on scene just to assist Officer Houlihan and Scout. He did not have any interaction with Mr. Medeiros. He noticed that the driver's side airbag had deployed. He did not see any blood on it. He did not see anything to indicate that the driver was injured.

[44] Officer Glaad went to the scene in response to a call from a tow truck driver. He inspected the car and saw only the driver's side airbag had deployed. The roof of the passenger side was partially caved in. There was no blood in the car. The seatbelts were not frayed as they get when they are activated in an accident. He concluded that the only occupant in the car was the driver. He did not have any contact with Mr. Medeiros.

[45] Officer Scobie, the breath technician, testified that he administered the breath tests to Mr. Medeiros. He noted that Mr. Medeiros had the odor of an alcoholic beverage on his breath, flushed cheeks, and watery eyes. He had red marks on his forehead, a cut on his chin, a red mark on the left side of his head and a slight red haze on his lower chest.

[46] Mr. Medeiros was belligerent and mixed up his words at times. No promises, threats or inducements were made to Mr. Medeiros. Officer Scobie identified the breath room video as being accurate. It was made an exhibit on consent. While in the breath room Mr. Medeiros told the officer that he had operated a car.

[47] Dr. Corbett testified as an expert in the ingestion, absorption, and elimination of alcohol in the human body. His expertise extends to the calculation of the blood-alcohol concentration in the human body, the operation of the Intoxilyzer 8000C and the effects of alcohol on a person's ability to operate a motor vehicle. His CV is exhibit 4.

[48] Dr. Corbett prepared a report that is exhibit 5 on consent. The report covers the time between 4:06 AM to 4:26 AM on the day in question. He calculated backwards from 4:06 AM to 1:00 AM. He assumed that Mr. Medeiros had an accident during this time period. He made other assumptions that were not questioned by the defence so it is not necessary to repeat them. They are all contained in his report.

[49] Dr. Corbett concluded that Mr. Medeiros's BAC would have been between 170 to 216 mg of alcohol in 100 mL of blood between 4:06 AM to 4:26 AM.

[50] The Crown suggested the following hypothetical to Dr. Corbett:

At 4:06 AM, a 27 year old male, 5' 11", 190 pounds, odor of an alcoholic beverage on his breath at the time of an accident, swayed and had difficulty walking, at 6:03 AM gave breath samples into an Intoxilyzer 8000C and registered 182 mg alcohol in 100 mL of blood and at 6:26 AM registered 179, no alcohol consumed between 4:06 AM and the time of the samples, and no great quantity of alcohol consumed before 4:06 AM.

[51] Based on this hypothetical, at 4:06 AM the person would have a BAC of between 173 and 216 mg of alcohol in 100 mL of blood. This calculation is based on Mr. Medeiros's lowest reading of 170 that he recorded at 6:26 AM.

[52] Dr. Corbett said that in a general context, if a person had these readings their ability to operate a motor vehicle would be impaired.

[53] That was the Crown's case.

[54] Mr. Medeiros testified on the trial proper and on the voir dire regarding the voluntariness of his statements in the breath room.

[55] He said that he was not aware that Mr. Markotic drove him from the party as he said he did on the video. He does not know who drove his car. He does not know why he said that. This goes for 99% of what he said in the breath room. He does not remember what he said in the video. Moreover, he does not remember 95% of the night in question. For example, he did not remember telling the police at first that he did not know who was driving and later telling them that it was Mr. Markotic.

[56] He remembered that when he was at the party, after a sporting event ended at about 12:20 AM, he asked if there were someone that could drive him home.

[57] He remembered being put in the back seat of his car. He does not agree that he drove himself but he does not remember who was in his car with him. Mr. Medeiros cannot remember anything after he was put in his car until he recalls being in a dark area in the back seat of his car. His chin and nose were bleeding. He realized that he had been in an accident. He does not remember how it happened. He got out of the car. He did not remember how he did this.

[58] He panicked and started going house to house to look for help. Someone told him that they called the police. That is all that he remembers about his interaction with this person. He said that he suffered a concussion and, consequently, he cannot remember well.

[59] He did remember the police arriving, but he remembered that they told him to put up his hands and shoved a light in his face. Beyond that, he cannot remember the specifics of this encounter.

[60] With regard to his utterances on the breath room video, he said that he cannot remember being cautioned about not having to make a statement.

[61] That was all of the evidence.

Analysis

Was Mr. Medeiros driving his car?

[62] I will deal first with the issue of whether Mr. Medeiros was driving his car. I will start the first part of this inquiry with the issue of the voluntariness of Mr. Medeiros's utterances in the breath room, in which he says that he operated a car on the night in question. Then I will examine the other evidence regarding whether he was driving.

[63] The applicable law in case where credibility is an issue is stated in R. v. D.W.:

First, if you believe the evidence of the accused, obviously you must acquit. Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[64] I find that the Crown proved beyond a reasonable doubt that the police did not make any threats or promises or do anything else that would have taken away from Mr. Medeiros the ability to give his statements in the breath room voluntarily. I accept the officer's evidence in this regard. There is no evidence to call their accounts into question on this point. The defence did not undermine their evidence in any way on this issue. I note that in any case, Mr. Medeiros's evidence was not that the officer's threatened or made promises to him or induced him in anyway. The defence's argument with regard to voluntariness rests on the "operating mind" doctrine.

[65] The law is clear that a finding that the police did not obtain a confession by oppressive means, promises or inducements does not dispose of the issue completely. In R. v. Oickle, the court said "The 'operating mind' doctrine dispelled once and for all the notion that the confessions rule is concerned solely with whether or not the confession was induced by any threats or promises".

What is an operating mind?

[66] In R. v. Oickle at paragraph 63, the court agreed with Whittle, where Sopinka J. held that the operating mind requirement "does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment".

[67] The "operating mind" doctrine is just another aspect of the general confessions rule. It is "but one application of the broader principle of voluntariness".

Did Mr. Medeiros have an operating mind?

[68] This is a relevant question in the circumstances of the case at bar because the evidence is that Mr. Medeiros drank a tremendous amount of alcohol, he was in a serious accident and he had a concussion, all of which could affect his mental condition.

[69] Mr. Markotic's evidence is that Mr. Medeiros was severely affected by alcohol consumption. He described Mr. Medeiros as asleep on the couch; "passing out and stuff"; "finished"; he "got put into a car"; couldn't "stand and stuff, so he wasn't doing too well that night"; "totally like sleep…he was done"; and "completely out [of] it".

[70] Officer Carroll said that Mr. Medeiros was staggering and crying when he first saw him.

[71] He described Mr. Medeiros as "very belligerent, rude, aggressive in his language". This continued right up to when he was put in the cell at the police station.

[72] With regard to his utterances on the breath room video, Mr. Medeiros said that he could not remember being cautioned about not having to make a statement. I find that the police did caution him. They made notes of this right after they said that they cautioned him. There is no reason on the evidence to doubt that they did this. The defence did not shake them in cross-examination.

[73] I find that due to Mr. Medeiros's impaired state of mind, he does not remember this occurring. He admitted that he does not remember much of what happened that night.

[74] The breath room video shows that he was aggressive, abusive and rambling. He did not know what municipality he was in. He thought that he was in Milton rather than Mississauga. He said that he could not remember 99% of what he said in the breath room.

[75] At first Mr. Medeiros said that he did not know who was driving his car. Later, he said that Mr. Markotic drove it and then he told the breath technician that he drove the car. This causes me concern that due to the alcohol, the accident, and the concussion, that his mind was genuinely confused about what he was saying.

[76] In these circumstances I have a reasonable doubt as to whether Mr. Medeiros had a sufficient awareness to have knowledge of what he was saying to the breath technician and that the police could use it to his detriment.

[77] Therefore, I find that the Crown did not prove BRD that the utterances that Mr. Medeiros made to Officer Scobie in the breath room were made by an "operating mind". Consequently, I find that the utterances were not made voluntarily. They are excluded from the evidence.

Was Mr. Medeiros driving?

[78] The evidence is that Mr. Medeiros drank a lot of alcohol at a party on the night in question. Both he and Martin Markotic said this. Mr. Markotic and Mr. Medeiros are longtime friends. I took this into consideration in assessing his evidence in general and with regard to whether he exhibited any bias in favour of Mr. Medeiros. I find that there is nothing in his evidence to indicate a bias that coloured his testimony in this manner.

[79] Mr. Markotic did not have 100% memory of "every single event that day". He remembered "bits and pieces of the night". It was honest of him to admit this. I find that in spite of this, his recollection was sufficiently detailed on the points in issue that I have confidence in his testimony.

[80] Mr. Markotic said that they were together at a party on the night in question. They were all drinking. Mr. Markotic had at the most four drinks. Mr. Medeiros was "like passing out and stuff". He was asleep on the couch.

[81] Mr. Medeiros couldn't "stand and stuff, so he wasn't doing too well that night". "There was a bunch of people helping him…the last I remember him, he was totally like sleep…he was done".

[82] Mr. Markotic said that when Mr. Medeiros decided to leave the party a friend came to "drive him". Mr. Medeiros "got in the backseat of the car and he was-like he was finished". Mr. Medeiros "got put into a car". There was no way that could operate the vehicle at that time. He was "completely out [of] it". Mr. Medeiros was not driving.

[83] Mr. Markotic never drove Mr. Medeiros's car on the night in question. Nor was he in an accident with Mr. Medeiros that night.

[84] Mr. Medeiros testified that he woke up in the rear seat of his car after the accident. He did not know how he got there. At first, he told Officer Carroll that he did not know who was driving. Later, he said that Mr. Markotic was driving.

[85] He said that after a sporting event ended at about 12:20 a.m. he asked if there were someone that could drive him home because he had drank so much.

[86] He remembered being put in the back seat of his car. He does not agree that he drove himself, but he does not remember who was in his car with him. He cannot remember anything after he was put in his car until he recalls being in a dark area in the back seat of his car after the accident. His chin and nose were bleeding. He realized that he had been in an accident. He does not remember how it happened.

[87] He said that he was not aware if Mr. Markotic drove him from the party. Moreover, he does not remember 95% of the night in question. For example, he did not remember telling the police at first that he did not know who was driving and later telling them that it was Mr. Markotic.

[88] Regarding the officer's evidence on this point, they said that Mr. Medeiros's face was bleeding, but the officers that looked at the air bag that deployed on the driver's side did not see any blood on the bag.

[89] Officer Houlihan's evidence may appear to settle the question. He said that the conditions were pristine for tracking. Scout is an experienced dog who had passed his yearly tracking test.

[90] Scout is trained to only pick up the strongest scent. This is what he did at first. Upon finding Mr. Medeiros, Scout went back to check for weaker scents, but found none. Officer Houlihan said that had there been two persons at the scene, Scout would have picked this up.

[91] This is important evidence, but there is no evidence that dog tracking produces infallible results. This evidence must be considered in the context of all of the other evidence. I find that when this evidence is weighted along with all of the other evidence, at its highest it indicates that it is very possible that Mr. Medeiros was the only person at the scene of the accident.

[92] But after considering the other evidence, especially Mr. Markotic and Mr. Medeiros's evidence, and applying the test in D.W., I find that Mr. Medeiros's evidence that he was not the driver could possibly be true. His and Mr. Markotic's evidence raise a reasonable doubt in my mind that Mr. Medeiros was driving his car on the night in question.

[93] Consequently, I have a reasonable doubt that Mr. Medeiros was the driver of the car. The Crown did not prove this essential element beyond a reasonable doubt.

[94] As a result of this finding, I do not have to resolve the issues of whether Officer Carroll had RPG to arrest Mr. Medeiros or if he breached his s. 8 Charter rights. Mr. Medeiros is found not guilty.

Released: October 16, 2015

Signed: "Justice J. W. Bovard"