Court File and Parties
Court File No.: Central East – Newmarket – 14-06754
Date: 2015-10-22
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Harald Schmidt
Before: Justice P.N. Bourque
Judgment
Released on October 22, 2015
Counsel:
S. Kumaresan, for the Crown
D. Gomes, for the defendant Harald Schmidt
BOURQUE J.:
Overview
[1] The defendant was seen by a police officer weaving off the road and as a result of a traffic stop, the defendant has been charged with impaired driving and driving with excess alcohol. The defendant alleges two breaches of his Charter rights; namely, the officer did not have reasonable and probable grounds to arrest him and make the breath demand, and secondly, the defendant is a native German speaker and he was not given the proper opportunity to speak to his counsel of choice.
Evidence
Cheryl Thompson
[2] . . . is a YRP officer of less than two years' experience. She was on uniform patrol travelling west bound on Major McKenzie Drive on September 7, 2014, when she observed a white panel van in front of her. She stated that it was in the shoulder lane and went over to the extreme right side of the lane. It also went onto the shoulder of the road and then slowly back onto the lane. He was then hugging the right side of the lane. The officer decided to do a traffic stop. Exhibit 1 filed was the in-camera video taken of the officer following the defendant's car. I find that while it is difficult to see if both the left wheels also went onto the shoulder of the road, it is clear that the bulk of the van does go onto the shoulder. It is also clear that the car has the right wheels on the shoulder for a significant period of time.
[3] The following is a timeline of the events in this matter.
| Time | Event |
|---|---|
| 21:53 | The officer initiated the traffic stop by putting on her emergency lights. There being no response, she began to sound her siren. She said the vehicle kept on proceeding for about 20 seconds before coming to a stop at the side of the road (this is also confirmed by the in-car video Exhibit 1). The officer went up to the driver's side of the van and an officer who had been following her in another police vehicle had also stopped and he went up to the passenger side. The officer spoke to the defendant and told him the reason for the stop. The officer asked for the defendant's documents and asked the driver to open the passenger window so the officer at the passenger side could hear the conversation. The driver gave his driver's licence but not his other documents. The driver did not put down the driver's window and the officer had to ask again. The officer described the motions of the defendant as "slow and sluggish". There was a strong smell of alcohol from the driver's mouth. The defendant said he had drank two beers that night at a friend's house. The officer described the driver's eyes as red and bloodshot eyes and asked the driver if he had any medical conditions to which the driver said no. The officer asked again for the ownership documents and the driver went into his wallet on a console and as he took it out, he dropped his wallet on the floor. The officer asked what the defendant's first language was and he said German. The driver said that he understood English completely. The officer had no difficulty understanding him and the officer did not think the driver had any difficulty understanding her. The driver never asked for a translator at any time. The officer went back to the car to look at documents and speak to the other officer and she stated that she formed her grounds to arrest as totality of driving, with a strong odour of alcohol, admission of drinking, with sluggish movements and red eyes. |
| 22:00 | The officer attended at the defendant's vehicle and arrested him. She returned him to her car where he was searched and put in the back of the police car. She stated that during the search (which was not captured on the in-car video) the defendant was swaying dramatically backwards and forwards and he stumbled while getting into the cruiser. |
| 22:04 | The officer read the rights to counsel and a caution. With regard to the rights to counsel, when asked if he wanted to call a lawyer now, the defendant said "no". The officer stated that she confirmed with the defendant that he spoke English. |
| 22:07 | The officer left the scene to attend 4 District. On the way, the officer realized that she had not read the breath demand to the defendant. She waited until reaching the station to read the breath demand (while parked in the sally port) because she did not want to do it while driving for safety reasons and did not want to take the time to stop and do it. |
| 22:17 | The officer arrives at the District. |
| 22:18 | The officer reads the breath demand to the defendant. |
| 22:22 | The officer takes the defendant into the booking area. In the booking area, the officer noted unsteadiness on his feet and he almost fell. As part of the booking the staff sergeant spoke to the defendant about getting his own lawyer and the defendant said that he did not have a lawyer. The staff sergeant then spoke to the defendant about duty counsel and the defendant said he wanted to call duty counsel. The sergeant did not offer him any other alternatives. |
| 22:30 | The defendant was placed into a cell. |
| 22:31 | The officer met with the breath technician and provided her grounds. |
| 22:37 | The officer called duty counsel. |
| 22:49 | Duty counsel calls back and the defendant is placed in a private room to speak with the duty counsel. |
| 22:54 | The call was finished and the officer took the defendant to the breath technician. |
| 23:25 | The breath tests were finished and the officer told the defendant that the readings were 190 and 170 milligrams of alcohol in 100 millilitres of blood, and he would be charged with the further offence of driving with excess alcohol. |
| 00:35 | The officer served various documents on the defendant. |
[4] The video of the police station was entered as Exhibit 2. It shows various parts of the police station including the sally port and booking area. The video is not a "smooth" presentation as one would normally see by way of a television program or movie. The system obviously takes much fewer frames per second than a normal video and therefore the motion is very jerky.
[5] This presents some problems for the viewer in trying to discern what might be subtle movements by the parties. For example, the arresting officer stated that the defendant stumbled somewhat in getting out of the car and stumbled during a point of the booking time, and fumbled removing his belt. I was able to discern an extra step taken by the defendant (to maintain his balance perhaps?) as he stood up to be searched (22:22:50).
[6] I was able to discern a backwards step by the defendant to maintain his balance and then a slight rocking back and forth near the end of the booking procedure (22:23:52). I was not able to see the stumble from the car. With regard to the taking off of the belt, I noticed that he was rocking backwards slightly and the officer who was searching him put his hand on his shoulder as a steadying action. I note that it took some time for him to unbuckle his seatbelt but there was not a good view of his hands (22:24:20).
[7] The bulk of her observations as stated in her evidence were, in my opinion, confirmed by the video. The actions on the video are certainly some evidence of impairment.
[8] For the most part, the officer was a thorough note taker of the events and did not embellish her evidence. On balance, I accept the her evidence with regard to her observations at the roadside and at the station.
Yuk Mo Chong
[9] . . . is a breath technician. At 22:04, he got a call and was required to attend 4 District for a breath test. He left at the same time.
[10] At 22:22, he arrived at 4 District, went to the breath room and saw the Intoxilyzer 8000C, which was set up but the simulator was not turned on. The officer turned it on at 22:23. The officer did the diagnostic check at 22:32, and the calibration check at 22:32, and the self-breath test at 22:37. It passed all tests and was ready to take a breath sample.
[11] At 22:54 the officer-in-charge brought the defendant to the breath room. The officer had received the officer's grounds and noted them as seeing a van sway from curb to curb. She did a traffic stop and had to use her emergency lights for a few moments. She smelled a strong odour of alcohol, his motor skills were bad and he could not provide documents. The witness noted that when the defendant walked into the room, his balance was not too sure and he did not walk in a straight line.
[12] The officer read the breath demand and secondary caution and the defendant said that he understood. He was polite throughout and there was no discussion about his legal counsel. The officer did not detect any language issues and he communicated with the defendant without difficulty. The officer did not recall any discussions about legal counsel and he did not ask the defendant whether he had spoken to a lawyer.
[13] The officer provided him instructions, a new mouthpiece and the defendant provided two suitable samples. The first sample at 23:00 was 191 milligrams of alcohol in 100 millilitres of blood, and the second sample at 23:22 had a reading of 173.
[14] Between the tests, the officer spoke to the defendant and noticed that his eyes were red and bloodshot and his face was flushed. He seemed sleepy and he swayed a little when he was standing.
Stu Garner
[15] . . . is a Staff Sergeant with the York Regional Police and has been an officer for 18 years. On the evening of September 7, 2014, he was on duty and dealt with the defendant for some 4 to 5 minutes at the booking room. He made notes of his involvement and has little recollection of the conversation beyond his notes. For such a routine matter and for short a time, I would not expect him to have a much greater recollection of these events. The officer spoke sometimes from his routine in booking a prisoner and I accept that he followed his regular routine.
[16] The officer indicated that he got personal information from the defendant and noted a slurring of his speech. He also noted that he was unsteady on his feet.
[17] He did not note any lack of understanding on the part of the defendant. In fact, the officer indicated that it was his practise to have the defendant repeat back to him his understanding of his right to counsel. He re-iterated the rights to counsel and told the defendant he can speak to any counsel that he chooses. The defendant did wish to speak to counsel. The officer eventually did not know whether the defendant actually spoke to any lawyer. The officer made no note of him asking to speak to any specific lawyer and no notation of the defendant asking to speak to anyone else (such as his wife).
[18] In cross-examination, he stated that he made sure that the defendant knew why he was at the police station. With regard to his rights to counsel, he stated that he would not go beyond the rights to counsel and would not discuss how they would go about exercising it. For him, this is left to the arresting officer. With regard to the counsel, the officer stated that he could speak to any counsel of his choice or speak to the duty counsel. The officer indicated that if he was given a name, that the police would look it up. It was his view that if he did not name a lawyer, then they would speak to duty counsel. He restated that "I ensure that they understand they can speak to duty counsel or a lawyer of their choosing".
Defence
Harald Schmidt
[19] . . . testified in his own defence. He is 48 years old and was born in Romania and he grew up speaking Romanian and German. He first came to Canada for a visit in 2005 and came here to live in 2008. Before he came to Canada, he worked for BMW for many years and ran a production line for the manufacture of automobiles.
[20] He began to speak English when he came to Canada. He is a contractor and with his wife Sarah, runs a contracting business for residential and commercial renovations. He describes his wife as handling all of the office work and all of the contracts. He did not say that he was illiterate in English.
[21] He rated his German and Romanian as a 9 out of 10 and his proficiency in English as a 7 out of 10. His wife Sarah is from Montreal and her English is better than his. He owns a house. He stated that he believed that his English is pretty good.
[22] With regard to this investigation, he stated that he understood what was being said to him. He was offered an interpreter at the roadside but declined as he felt he could communicate. He never asked for one at any subsequent time.
[23] He ultimately said that he understood everything that the police told him except with regard to the rights to counsel, he felt that he was not given his "options". After being pressed, he stated that he would have liked to have called his wife (upon whom he relies) to get her advice. He admitted that they did not have a lawyer at the time.
[24] He admitted that he spoke to duty counsel at the time and got advice but stated that he just agreed with what he said and then "I didn't feel I was part of the conversation".
[25] He never communicated any of these concerns to the police. He never asked them to call any specific lawyer (he admitted that he did not have one) and he did not mention to any of the police that he wanted to call his wife. He has no recollection of what the police actually said to him about calling a lawyer but he does not deny that things were said and does not deny that he was told about getting legal advice. Specifically, he does not say that he believed that he could only call a lawyer of his choice if he had one.
[26] He agreed that the police were not overbearing and he in fact stated that they were "precise". I find that a very apt description of what the actions of the police should be. In that sense, this witness, if he has any language difficulties, they are not ones of vocabulary.
[27] In response to a question from the Crown, the defendant stated that he does not understand some things at this trial but his wife explains it to him. He did not have an interpreter in this trial and I do not believe that he needs one.
[28] Ultimately he came down to saying that he did not know what his "options" were. He did not really describe what that was.
Legal Analysis
Did the Officer possess reasonable and probable grounds to arrest the defendant?
[29] The defendant alleges that the panoply of factors indicted by the police officer do not give him reasonable and probable grounds to arrest the defendant for impaired driving and make the breath demand.
[30] The Ontario Court of Appeal in R. v. Bush 2010 ONCA 554, again restated the law with regard to the test to determine whether the officer had reasonable and probable grounds to make an arrest for impaired driving. Here are some of the courts observations:
[46] In the context of a breath demand, the reasonable and probable grounds standard is not an onerous test: see R. v. Wang, [2010] O.J. No. 2490, 2010 ONCA 435, at para. 17. It must not be inflated to the context of testing trial evidence. Neither must it be so diluted as to threaten individual freedom: Censoni, at para. 43.
[47] There is no necessity that the defendant be in a state of extreme intoxication before the officer has reasonable and probable grounds to arrest: R. v. Deighan, [1999] O.J. No. 2413, 45 M.V.R. (3d) 90 (C.A.), at para. 1. . . . 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, [page 655] reaction or response time, judgment and regard for the rules of the road:
[48] The test is whether, objectively, there were reasonable and probable grounds to believe the suspect's ability to drive was even slightly impaired by the consumption of alcohol: see R. v. Stellato, supra; Moreno-Baches and Wang, at para. 17.
[55] In assessing whether reasonable and probable grounds existed, trial judges are often improperly asked to engage in a dissection of the officer's grounds looking at each in isolation, opinions that were developed at the scene "without the luxury of judicial reflection": Censoni, at para. 43; also Jacques, at para. 23. However, it is neither necessary nor desirable to conduct an impaired driving trial as a threshold exercise in determining whether the officer's belief was reasonable: R. v. McClelland, 1995 ABCA 199, [1995] A.J. No. 539, 165 A.R. 332 (C.A.).
[56] An assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of an impaired driver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are present and which are absent as the essential test. There is no mathematical formula with a certain number of indicia being required before reasonable and probable grounds objectively existed: Censoni, at para. 46. The absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding of reasonable and probable grounds based on the observed indicia and available information: R. v. Costello, [2002] O.J. No. 93, 22 M.V.R. (4th) 165 (C.A.), at para. 2; Wang, at para. 21.
[61] A trained police officer is entitled to draw inferences and make deductions drawing on experience.
[31] In our case, the officer had a motor vehicle which for a period of time was driving partially on the travelled portion of the road with most of the vehicle over the non-travelled portion, namely the shoulder. It was not just a momentary touching of the shoulder and then a return to straight and level driving. The vehicle basically drifted back into the lane while still staying very close to the right side of the lane. The vehicle took over 20 seconds to begin its movement to stop after the officer put on her emergency lights. It was dark, but there were no vehicles between the officer and the defendant vehicle. The car pulled over but not off the travelled portion of the road.
[32] The defendant had a smell of alcohol. The defendant seemed to have difficulty processing requests and the officer had to ask more than once for the defendant to open his passenger window. The opening of the window was accompanied by fumbling, even though the defendant had to reach over to manually crank the window. The defendant had red and glassy eyes. The defendant's movements were slow and sluggish. The defendant dropped his wallet while he was getting some documents from within it or on top of it.
[33] Defence urges upon me that the observations of the defendant vis-a-vis his movements are unreliable. I do not think that is the case. I believe that the officer was a reliable witness. I believe that all of those factors which may have had some other explanation (none were proffered at the time) did not detract from the officer's right to consider them in forming her opinion. She took several minutes to decide and even spoke to the other officer. She was adamant that the decision was hers alone and she stated that the only conversation was his agreement with her decision.
[34] Taking all of the factors noted above and applying the law as I understand it, I believe that the officer had reasonable and probable grounds to make the arrest and breath demand.
Did the delay in making the breath demand lead to a breach of section 8 rights?
[35] Once the officer arrested the defendant she put him in her cruiser and read a caution and rights to counsel. She did not read the breath demand. Within minutes of leaving the scene, she realized her error but decided because of safety issues, to wait until she reached the station. She did tell the defendant that she would be reading another matter when she got to the station. In my opinion, the officer, for safety reasons could be excused from attempting to read the demand while driving a car and I cannot fault her for deciding to wait until she got to the station. In that regard, her delay was only a few moments and I do not find a delay. I do not find any Charter breach here.
Were the defendant's 10(b) rights infringed?
[36] The defendant states that his right to counsel of choice, as stated in the Charter and as expanded by the case law, has been infringed, and finding such an infringement, I should exclude the evidence of the breath results under section 24(2) of the Charter.
[37] As an initial matter, I have reviewed the totality of the evidence, including the evidence of the police officers and the defendant. On balance, I do not find that the defendant suffered any language deficit which would lead the officers to go to further lengths to check his comprehension of the warnings and cautions and demands made by the officers in the course of this investigation. I find his comprehension was similar to any native English speaker who is confronted by a strange police inquiry into a drinking and driving offence. The defendant spoke with intelligence in the witness stand, conversed normally with the officers and when given the opportunity, rejected the use of an interpreter, not only during the investigation but during this trial. I therefore do not find that this a case of "special circumstances".
[38] Having said that, do the facts of this investigation show that the defendant was denied his counsel of choice? The defendant was read his rights to counsel immediately upon arrest. He stated that he understood and that would include his option to consult with his counsel of choice or use duty counsel. The wording of the rights to counsel has been approved by courts of appeal across the country, as being sufficient to bring the defendant's rights to counsel options fully to his attention.
[39] He never stated in any way, shape or form any wish to consult with his own counsel, or consult with any person of information source to obtain a counsel of his own choice. I realize that he stated in evidence that he relied on his wife for decision making in his business but at no time were the police officers aware of any of this. When offered duty counsel, he spoke to duty counsel. I do not attempt to assess the quality of the advice (R. v. Beirel). I only note that upon completion of the advice, he decided to, in his words, accept the advice. The choice was his at all times. What is important for this analysis is that he made no further request to speak to any further counsel or seek the advice of any family member before proceeding.
[40] The defence asserts that the booking sergeant made statements to the defendant which had the effect of closing his "options" and therefore the defendant was in a position that his only choice to have a counsel of choice was if "he already had his own counsel". In other words, he could not take steps to get a counsel from any other source such as calling a family member or friend. With all respect to the defence, I do not interpret the desk sergeant's evidence in that fashion. He repeated that the defendant could call his counsel of choice. He did not limit that choice. I think he could be forgiven for assuming that most people in that position either had their own lawyer or then spoke to duty counsel. I do not accept his words as limiting the defendant in asking to consult his wife on this issue.
[41] With regard to the cases cited by the defence, I distinguish R. v. Pita [2013] O.J. No. 5974 on the basis that the Judge determined that there were "special circumstances" in the fact situation he had before him. I have found no "special circumstances" in this case. I do accept Justice Greene's reasoning in deciding whether to exclude the evidence. I agree that with regard to the analysis in R. v. Grant, 2009 SCC 32, the first factor may weigh for exclusion, the two further factors weigh towards inclusion. As Justice Green observed: "I can find no authority for the imposition of a constitutional burden of clairvoyance on the police."
[42] The case of R. v. Leroux (not cited) follows the reasoning in R. v. Pita and also finds a "special circumstance" which I have found does not exist here.
[43] I have reviewed the British Columbia decision of the Provincial Court in R. v. DiGiulio, [2002] B.C.J. No. 1449. If it stands for the proposition that in all circumstances the police must, in addition to the statutory warning make it clear that a detained person can consult many different potential sources to look for a lawyer, then I must respectfully disagree. The history of the DiGiulio case in British Columbia (it has not been considered outside the province) has had mixed comments including a decision in R. v. Raegan Robert John Phillips, [2007] B.C.J. No. 3206, which disagrees with the principal.
[44] In the result I find no breach of the 10(b) rights of the defendant.
Should the breath results be excluded on the basis that the breath technician used the operation of the intoxilyzer to determine that the sample was suitable?
[45] The defence alleges that the evidence of the breath technician (in response to question from the defence) that he used the fact that the intoxilyzer generated a reading for the breath sample to lead him to believe that the defendant had provided a "suitable sample". The defence argues that section 254(3)(a)(i) requires that the suitability of the sample must be determined by "a qualified technician's opinion". The defence cites no authority for this proposition, that the officer cannot use the results of the intoxilyzer in coming to that opinion. I can think of no reason why a technician cannot use the results of intoxilyzer to form his opinion. The office came to an opinion. I believe that is all that is required.
Is the defendant guilty of impaired driving?
[46] The evidence of impairment consists of the following:
Cheryl Thompson
(i) Driving onto the shoulder of the road for a period of time and then slowly back onto the lane;
(ii) A delayed reaction to the emergency lights and sound horn of the police cruiser before coming to a stop;
(iii) The slow and sluggish motions of the defendant inside the car and especially reaching over to wind down the window;
(iv) Strong smell of alcohol from the defendant's mouth;
(v) Red and bloodshot eyes;
(vi) Dropping his wallet while searching for his documents;
(vii) Swaying back and forwards during the search and stumbling while getting into the police cruiser;
(viii) The defendant was unsteady on his feet on two occasions in the booking room.
Yuk Mo Chong
(i) Eyes were red and bloodshot and his face was flushed;
(ii) He seemed sleepy;
(iii) He swayed a little when he was standing.
Stu Garner
(i) Slurring of speech;
(ii) Unsteady on his feet in the booking room.
[47] As per R. v. Stellato, (1993), 78 C.C.C. (3d) 380 and other cases, the Crown must prove beyond a reasonable doubt that the defendant's ability to operate a motor vehicle was impaired to any degree from slight to great.
[48] The evidence of impairment insofar as there is evidence of unsteadiness is confirmed by the video evidence. There is, in my opinion, two instances of such unsteadiness which cannot be explained away simply saying he was not swaying on other occasions (I do note however that he was sitting down most of the time he was in the booking room).
[49] The manner of driving, without any explanation is, in my, opinion a significant evidentiary indicator of impairment. Coupled with all of the other observations of unsteadiness, dropping of the wallet and the slowness of movement is sufficient to convince me beyond a reasonable doubt that the Crown has established a degree of impairment.
Conclusion
[50] Having rejected the Charter applications and being convinced of the defendant's impairment, I find the defendant guilty of the offences of driving with excess alcohol and impaired driving.
Signed: "Justice P.N. Bourque"
Released: October 22, 2015