Court File and Parties
Court File No.: Hamilton File# 14-597
Ontario Court of Justice
Between:
Her Majesty the Queen
— And —
Scott Wiseman
Before: Justice P.H.M. Agro
Heard on: June 15, 2015, June 16, 2015, June 19, 2015, August 21, 2015
Reasons for Judgment released: October 6, 2015
Counsel:
- Mr. Kevin McKenna, for the Crown
- Mr. L. Izakelian, for the accused Scott Wiseman
Reasons for Judgment
Introduction
[1] Scott Wiseman is charged with impaired operation of a motor vehicle and failure or refusal to comply with a breath demand contrary to sections 253 (a) and 254(5) of the Criminal Code of Canada.
[2] The accused, through counsel submits that the investigating officer lacked the reasonable and probable grounds for the arrest and breath demand resulting in an arbitrary detention contrary to the Charter of Rights and Freedoms s. 9 and a breach of Charter section 10(b) rights to counsel when the investigating officer failed to provide the accused with an opportunity to speak with counsel in private.
[3] All evidence and related argument proceeded by way of voir dire, with the agreement that the evidence on the voir dire would apply to the trial proper.
[4] The court heard testimony from the investigating officer, Hamilton Police Constable Kristen David, Constable Christopher McClure of that service, Robert Keenan, a civilian witness, and the accused. The officer who administered the breath tests has since died and his testimony is therefore not available.
The Evidence
[5] The combined testimony of these witnesses, about which there is no issue, leads to this narrative of events:
[6] On the night of 23 December 2014, Wiseman drove to a local bar in his Ford F150 pickup. After consuming several pints of beer he took a taxi home leaving his vehicle in the parking lot of the bar.
[7] On 24 December 2014 at approximately 10:45am he returned to the bar to retrieve his truck. His return route took him along Mountain Avenue in this city.
[8] Mountain Avenue is a two lane thoroughfare running north/south through a residential area. There are no sidewalks along that street and the asphalt road slopes to a ditch on each side. Roads were plowed but snow covered and slippery.
[9] Robert Keenan is a resident on Mountain Avenue. His attention was drawn to the street by his barking dog.
[10] From his front window, Keenan had an unobstructed view of the accused's truck facing east in the ditch in front of his home. The vehicle was into the ditch from its front end to the driver's side door.
[11] Keenan watched the truck as the driver attempted to correct its position; the wheels were spinning and smoking with the vehicle ultimately ending up with its left side into the ditch and its right side on the street. The accused got out of the truck to clean snow from its wheels then attempted to rock the vehicle out of the ditch without success.
[12] Keenan called police providing a description of the accused that included his estimated height, hair style and clothing particulars. He continued to watch the accused trying to extricate his vehicle.
[13] Before police arrived, the accused abandoned his vehicle and started walking northbound along Mountain Avenue.
[14] Constable David was dispatched to the area for a possible impaired driver call and was given the description of the driver and vehicle as provided by Keenan.
[15] While en route to the scene, Constable David came across a lone male walking northbound on Mountain at its intersection with Collegiate. That male matched the description provided by the witness Keenan.
[16] As Constable David drove toward the male, he saw him leaning forward with one hand out on the roadway and both feet on the ground. When David got closer the male stepped back to steady himself, almost falling.
[17] Through the window of his cruiser Constable David confirmed with that male that he had left his vehicle in a ditch on Mountain Avenue and confirmed his identity as the accused with a valid driver's license.
[18] David also saw the vehicle matching the description provided by dispatch as stuck in the ditch on Mountain Avenue. The accused acknowledged that vehicle was his.
[19] During this initial encounter Constable David noted that the accused's eyes were glossy and that he had a fairly strong odour of an alcoholic beverage on his breath. He found the accused's speech to be slow but not slurred and that he had no difficulty in retrieving identification when requested.
[20] Constable David also noted that the knuckles on the accused's right hand were swollen; there were two cuts to that hand between his knuckles and wrist. He also observed that the accused was wearing flat dress shoes.
[21] Constable David detained the accused in the rear of his cruiser for impaired driving, advising him of his rights to counsel and giving the appropriate caution.
[22] David drove the accused to the truck which he found to be facing in a southwest direction with its front tires onto the lawn area of the adjacent residence and its rear tires in the 3 foot ditch.
[23] After speaking with the witness Keenan, Constable David formed the grounds for arresting the accused for impaired driving and handcuffed him, again providing rights to counsel, caution and breath demand. Because of the obvious injuries to his right hand, the accused was cuffed with his hands in front of him.
[24] Constable David articulated his grounds for arrest and breath demand as these: his observation of the accused leaning forward on Mountain Avenue with one hand on the ground, the accused then stepping back and almost falling, the fairly strong odour of an alcoholic beverage on the accused's breath, the dispatch information regarding the accused's description as the driver of the vehicle in the ditch, the fresh information received from the witness Keenan and the position of the vehicle in the ditch.
[25] The accused was transported to Central Station for the breath tests. While awaiting initial processing, he expressed to the duty Sergeant that he was experiencing anxiety and pain in the area of his heart.
[26] Emergency Services arrived to transport the accused to hospital for medical attention. The accused was placed on a stretcher and began coughing and lurching.
[27] On arrival at the hospital the accused requested to speak with duty counsel and while the accused was attended to by a triage nurse, Constable David contacted duty counsel.
[28] Once the accused had been assessed by the triage nurse, there being no diagnosis of emergent medical issues, the accused was transported by wheel chair into a private 8'x10' observation room so that he could speak with duty counsel.
[29] In that observation room were a bed and sink, an Intoxilyzer and sundry medical instruments and equipment including scissors, sutures, materials for cast application and syringes. The door to the observation room had a small window approximately 6"x12".
[30] When duty counsel made the return call, Constable David explained to that counsel that he was not able to provide accused complete privacy because of the hospital setting and the presence of medical equipment and instruments, including scissors, and then passed the phone to the accused. He then stepped outside of the observation room into the hall to join Constable McClure who had joined him there for security purposes. The door to the observation room was partly but not fully closed.
[31] David and McClure remained outside of the door while the accused had his conversation with duty counsel. They continued to visually monitor the accused while engaging in their own conversation.
[32] Constable David observed the accused through his peripheral vision while facing Constable McClure. McClure had a more direct and unobstructed view. They both testified that they maintained this position for both officer and prisoner safety.
[33] The officers carried on their own conversation and while they both testified that they could hear the accused talking, they were unable to make out any of his conversation. Neither of them was taking notes while standing outside the observation room.
[34] At the conclusion of his consultation with duty counsel, the accused raised his voice to call out to the officers that he had finished his conversation at which time they entered the room.
[35] When asked if he was satisfied with the consultation, the accused replied affirmatively.
[36] Wiseman testified on the voir dire. He acknowledged consuming another pint of beer at the bar that morning before retrieving his truck and driving home.
[37] While he offered no testimony about the drive along Mountain Avenue, he did explain that the reason he was observed bending over by Constable David was that he had dropped his keys and had bent over to pick them up.
[38] He said he had to steady himself on the road as it was snow covered and he was wearing dress shoes.
[39] The testimony of the accused about the officer's location during his consultation with duty counsel varies little from that of the officers in terms of the environment at the hospital and in particular the observation room.
[40] He acknowledged speaking with duty counsel for 4 minutes turning his head away from the partly open door.
[41] In his examination in chief, the accused said the officers were looking at him and he didn't have the conversation he wanted with the lawyer. He went on to say that he could hear them talking in the hall so he thought they could hear him.
[42] That testimony does not square with his other testimony. He said on the one hand that he could hear muffled talking by the officers but was unable to discern their conversation and that he whispered "certain things" to duty counsel but then had to shout out to the officers to let them know he had finished his phone call.
[43] The officers were stationed in the hallway of an emergency room of a major hospital. The accused was alone in an observation room. In those circumstances did he expect the officers' ability to hear his conversation was more acute than his ability to hear theirs?
Analysis
a) Reasonable and Probable Grounds and s. 9
Reasonable and probable grounds must be subjectively held by the officer[^1] and objectively discernible from the information the officer had at the time: R v Bernshaw, [1995] 95 C.C.C. (3d) 193 at 216 (S.C.C.) and R v Censoni [2001] O.J. No. 5189.
[45] As such, reasonable and probable grounds sit at the lower end of the continuum of standards of proof. Certainly more than suspicion and certainly less than proof beyond a reasonable doubt or even a prima facie case: R v Shepherd, 2009 SCC 35, [2009] S.C.J. No. 35.
[46] In Censoni, supra, Hill, J. commented at para 43:
43 Reasonable grounds in the context of a s. 254(3) breath demand is not an onerous threshold. It must not be inflated to the context of testing trial evidence. Neither, of course, is it so diluted as to threaten individual freedom. All too often, however, the defendant invites the trial court to engage in minute decisions of the officer's opinion – an opinion developed on the spot without the luxury of judicial reflection. This undoubtedly led McFadyen J.A. in Regina v. McClelland, supra at 517 to observe:
It is neither necessary nor desireable to hold an impaired driving trial as a threshold excercise in determining whether the officer's belief was reasonable.
[47] The issue was considered by my brother Justice Jennis of this court in R v Skuse, [2004] O.J. No. 2776:
9 The applicant places substantial reliance on the cases of R. v. Cooper and R. v. Ferguson – both decisions of the Ontario Court of Justice (Provincial Division). Both cases appear to set standard quite high for the test of reasonable and probable grounds. However, in my view, both these cases are of limited assistance to me since R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont. C.A.), does not seem to be referred to in either decision. The Ontario Court of Appeal judgment was released the month prior to R. v. Cooper being decided. The Court of Appeal's test for conviction of proof beyond a reasonable doubt of slight to great impairment by alcohol of ability to operate a motor vehicle was subsequently affirmed by the Supreme Court of Canada. It appears to me that the test set out in Stellato very much affects the test for reasonable doubt of slight impairment to operate a motor vehicle is sufficient for a conviction, then how much lower is the test for a prima facie case and still yet even lower for the requirement of reasonable and probable grounds?
[48] He answered that question at paragraph 11 of that decision by reference to R. v. Censoni, supra:
11 As was stated by Mr. Justice Hill in R. v. Censoni [2001] O.J. No. 5189 (Ont. S.C.J.) at page 10,
"it is, accordingly, somewhat antithetical to this understanding that in reviewing whether reasonable grounds objectively existed, we compel a police witness to unbundle the facts contributing to the impression of driving impairment. We do so, however, only to the extent necessary to secure the comfort that the grounds are objectively supported. Sufficiently is never an examination of the articulated facts in isolation."
[49] In short it is not an onerous threshold. Particularly where the contemplated offence is impaired driving.
[50] Constable David articulated his grounds in his testimony. I find those grounds to be subjectively and honestly held and objectively discernible and supported by the evidence before me.
[51] The accused's argument on this ground fails.
[52] The fact that the accused may have had difficulty navigating on snow covered pavement because he was wearing dress shoes or that he was leaning over to pick up his car keys when he was observed in that position by Constable David are competing explanations for some of the grounds, which if accepted by this court, are more properly taken into account in assessing impairment in the context of proof beyond a reasonable doubt.
b) Section 10(b) Rights to Counsel
That the right to consult counsel in conditions of privacy is a fundamental component of s. 10(b) was affirmed in R v Playford, [1987] O.J. No. 1107 (C.A).
[54] However, the absence of privacy must be examined in view of all the circumstances in assessing whether there has been a s. 10(b) breach: R v Burley, [2004] O.J. No. 319 (C.A.) at para. 24.
[55] In the case at bar, the police were in a position of having to weigh the accused's expressed need for medical attention against a right to consult counsel without delay at the police station in a controlled and private room. Quite properly the decision was made to attend to medical needs while temporarily and briefly deferring the right to consult counsel.
[56] Both Constables David and McClure were conscious of the need for privacy and stepped out of the room with the door partially ajar so that they could maintain some level of observation over the prisoner. The only other means of observation was a small 6"x12" window in the door.
[57] At no time did the accused waive the officers away or request more privacy than he was afforded. He testified that when speaking with duty counsel he turned his head away from the officers and whispered to tell duty counsel "certain things".
[58] It was argued by the defence on the basis of Playford that such a request is not necessary so long as an accused reasonably believed that his conversation could be overheard by police: Playford, supra, at para. 38.
[59] It was only at trial that the accused expressed any concern claiming he was unaware of his entitlement to privacy.
[60] Playford is distinguishable on its facts. In that case, the rights to counsel were exercised in controlled circumstances, in the case at bar, the accused was in a public setting in the emergency room area of a hospital; he was there at his own request for medical attention.
[61] The issue of hospital room consultations with counsel and rights to privacy was considered again, post Playford, by the Ontario Court of Appeal in R v Burley, [2004] O.J. 319.
[62] In that case the court found that the totality of the circumstances must be examined: para. 24 and cited with approval the trial decision in R v Turiff (1998) 82 O.T.C. 180, upheld on appeal.
[63] McMurtry, C.J.O., writing for the court, in referring to the trial decision in Turiff said at para 21:
21 O'Connor, J. also quite properly noted that the individual factual context must be considered in each case. However his conclusion suggests that in considering the reasonableness of an accused's concern about lack of privacy in the particular circumstances an accused should be reasonably expected to make his concerns known to any police officer present.
[64] At para 22 the Court referred to the Supreme Court of Canada's decision in Bartle v the Queen, 92 C.C.C. (3d) 289 regarding reasonable diligence in the exercise of rights to counsel citing as well its own decision in R v Richfield, 178 C.C.C. (3d) 23.
[65] I find on the evidence before me that the officers did provide this accused with a private consultation with counsel as dictated by the environment at hand and safety concerns for themselves and their prisoner.
[66] I find further that this accused's privacy concern as expressed at trial is an after thought of convenience. I reject his testimony that he held those concerns at the time of exercising his rights to counsel and his own testimony belies the existence of those concerns at the time.
[67] I find further that any such concern, if it existed as he claims, was unreasonable in the circumstances.
[68] It was the accused who diligently expressed concern about his medical needs and police accommodated that request. Police were aware of the right to consult counsel in private and accommodated that to the extent they could in the circumstances. The accused gave no indication to police that his conversation with counsel was not private or that he felt inhibited in his discussions with counsel. This is not a case of an actual invasion of privacy by note taking or tendering evidence obtained from overheard conversations.
[69] In my view, the accused has failed on a balance of probabilities to establish that he could not consult counsel in private or that such belief was reasonably held in the presenting circumstances.
[70] Having so ruled on the two Charter arguments, I will consider whether the Crown has met its onus on the two charges before the court. I will deal first with count 2, the fail to comply with breath demand.
Fail or Refuse to Comply with Breath Demand
[71] After consulting with Duty Counsel, the accused agreed to submit to breath tests in compliance with the demand made by Officer David.
[72] The qualified breath technician, Constable Archer attended at the hospital to commence that process.
[73] Of necessity, the Crown relies on the testimony of Constables David and McClure who were present when the tests were administered, neither of whom is a qualified breath technician.
[74] Constable David thought the instrument used by Archer was "either an Intoxilyzer 5 or 8000"; Constable McClure did not know what instrument was being used.
[75] The accused testified that the only instruction offered by Constable Archer was to put the mouthpiece in his mouth and blow as hard as he could. He conceded in cross examination that it was obvious that he had to make a seal with his mouth to blow hard.
[76] He also said he was extended four opportunities to provide a sample before he was charged but it was never explained to him what he was doing wrong. He claimed that he was not told he was being afforded a last chance, nor the consequences for failure or refusal to provide a sample.
[77] The accused maintains that he was simply charged and when he asked for another chance and an explanation of what he was doing wrong, Constable Archer started packing up his equipment to leave.
[78] Constable David was in the observation room while the tests were administered at a distance of approximately 5' from the accused with an unobstructed view of the process.
[79] While he is not a qualified breath technician, Constable David did have some familiarity with the process from observations of other individuals involved in the process.
[80] He testified that Constable Archer instructed the accused on the process before it began including an instruction to close his mouth around the mouthpiece while blowing. He said as well that Archer demonstrated the process before the testing began.
[81] I am satisfied that the process of providing a suitable sample was adequately explained to this accused.
[82] Constable McClure's vantage point was not optimum as his function was to provide security. He stood closer to the entrance to the observation room.
[83] He was able to make observations of the accused's demeanour during the testing process. He said the accused was belligerent toward him and the other officers and was yelling, swearing and making vulgar jokes about what was transpiring and playing with the handcuffs in an aggressive manner rotating his wrists.
[84] Both officers testified that during the course of each of the four tests, the accused failed to form a seal around the mouthpiece and was moving his head and mouth around it.
[85] Constable David provided some detail in that regard. He said the accused would blow to the right while positioning the mouthpiece on the left and vice versa. He testified the accused made many different efforts not to blow including frequent moving of the mouthpiece.
[86] Constable McClure's description of the accused's attempts was similar and he commented that after each attempt the accused would laugh or give a large smile.
[87] Constable David did recall Archer cautioning the accused about the failure to provide a sample and advising him of the consequences of failure before any charge was laid.
[88] At no point did either officer hear a steady tone from the Intoxilyzer, nor was there any testimony about any readings of any kind that the instrument might have generated.
[89] As for this accused's mens rea, the testimony of the two officers about the manner in which the accused was moving the mouthpiece in his mouth and blowing at the sides of his mouth is instructive.
[90] The accused stated he was blowing as hard as he could. I reject his testimony in that regard. He acknowledged the instruction to blow as hard as he could and that to blow hard he would have to make a proper seal with his mouth. He failed to do so.
[91] All witnesses testified that it was after the fourth attempt that Archer informed the accused that he considered the test a fail and charged the accused. It was then that the accused asked what he was doing wrong and asked for another chance.
[92] In cross examination, the accused explained his demeanour in the observation room as angry and inappropriate. He claimed he was venting his frustration at being arrested when he was just walking home.
[93] I find this same anger spawned his willful and voluntary failure to provide a suitable sample and his refusal of any further medical attention for the issue that brought him to hospital. I find his request to try again, in the face of his behaviour during the four tests, to be a disingenuous attempt to affect Constable Archer's decision to charge.
[94] The defence argued that the Crown had tendered no proof that the instrument used by Constable Archer was an approved instrument in proper working order, submitting that that is an essential element of the offence.
[95] The only evidence before me about the kind of instrument, or from which I might infer the kind of instrument used by Constable Archer was the thought of Constable David that it was "an Intoxilyzer 5 or 8000," neither of which is an approved instrument, though the Intoxilyzers 5000C and 8000C are.
[96] Nor are there any print outs of pre-test readings to establish that the instrument was in proper working order nor any print outs of the failure to register an adequate sample in the course of the accused's testing.
[97] Insofar as the facts are concerned, the defence is correct.
[98] The issues of proof of the instrument and whether it was in working order has been the subject of much judicial interpretation and comment.
[99] The authorities that are binding on me are the Summary Conviction Appeal decision of Sachs, J. in R v MacNeil [2002] O.J. No. 3982 and the decision of the Ontario Court of Appeal in R v Weare [2005] O.J. No. 2411.
[100] In MacNeil, Sachs, J. stated at para. 8:
8 ...The essential ingredients of an offence do not change. What may change are the facts necessary to establish an essential ingredient. So, for example, where the evidence of the refusal is dependent on the readings of the machine, [italics mine] it may be necessary, in order to establish that there was a refusal, to lead evidence that the machine was an approved machine and that it was in working order. In other cases, such as in those cases where there has been an out-right refusal, (i.e. where the evidence of the refusal is not based on the readings of the machine), there would be no need to lead evidence about the nature of functioning of the machine to establish that the necessary elements of the offence have been made out. This is the point that was made by Lambert J.A. in R. v. Leveque (1985), 22 C.C.C. (3d) 559 (B.C.C.A.) where he states at page 562:
"I agree with Mr. Justice Seaton that the question of whether in any particular case all the ingredients of the offence established by s. 253(1) of the Code have been met is a question of fact of which evidence in relation to whether the breathalyser is in working order may or may not be required, depending on all the other evidence that is led in the case."
9 The case before me is one where, given the attempts by the Respondent and the fact that the officer bases his opinion as to the deliberate nature of the refusal on the readings of the machine, [italics mine] it was necessary to lead evidence as to the nature and functioning of the machine in order to establish a factual basis for the essential ingredients of the offence in question. The question then becomes whether there was some evidence from which a judge could reasonably infer that the device used was an Approved Screening Device.
[101] That reasoning was approved by way of endorsement by the Ontario court of Appeal in Weare:
In our view, the interrelationship between the elements of the offence under s. 254(5) (a) of the Criminal Code and the evidence that the device was an approved device is aptly described in para. 8 of R.v. MacNeil, [2002] O.J. No. 3982 (S.C.J.). As such, if a finding is made that the accused did not legitimately attempt to provide a sample but merely feigned an attempt, in our view, that amounts to the equivalent of a refusal, thereby constituting the offence without the need to show that the device is an approved device.
[102] The gravamen of the offence under s. 254(5) is not the quality of the breath sample offered by the accused but rather his refusal or failure to provide an adequate sample. In this case the Crown does not rely on any readings to establish the refusal, rather it is the accused's conduct during the testing process.
[103] Having found that the accused's failures to provide a sample were voluntary and willful, I conclude they amounted to an outright refusal and there is no requirement for the Crown to lead evidence that the device used was an approved instrument.
[104] For these reasons, Wiseman is found guilty on count 2.
Impaired Driving
[105] In assessing the evidence as a whole on the impaired driving count there are competing inferences that might be drawn from some of the testimony of the three principal witnesses: David, Keenan and the accused.
[106] All witnesses were consistent in describing road conditions as snow covered with hard packed snow and slippery.
[107] Keenan testified that he thought the accused was intoxicated when he saw him walking away from his truck along Mountain Avenue because he looked unsteady and was wobbling. He conceded in cross examination that he himself was also unsteady while walking his dog earlier in the morning along the same route.
[108] While Constable David observed the accused leaning forward with one hand out and then almost falling when he rose up again, he did acknowledge that the accused could have been bending over to pick something up. That observation was made from a distance of approximately 20 meters away.
[109] The accused testified that at that moment he was picking up his car keys which he had dropped. His explanation may reasonably be true and his footwear would also account for the unsteadiness and wobbling observed by the witness Keenan.
[110] There is no evidence before me that addresses the accused's driving before he got into the ditch. His explanation on that count was that he hit a patch of ice. That too, may reasonably be true considering other evidence before about road conditions.
[111] The presence of alcohol in his body may have impaired the accused to the point that he drove off the road on Mountain Avenue.
[112] So too may have the road conditions; however Constable David had driven on a road that intersected with Mountain Avenue. He did not express any difficulty with driving conditions from the area where he received his dispatch to the area where he first came upon the accused nor when he drove on Mountain Avenue to the accused's vehicle in the ditch. There is no evidence to suggest that conditions on those roads were any different, nor was that issue tested by the defence.
[113] That the accused had alcohol in his body at the time of his driving is not the issue. That is admitted. He had been drinking the night before and within one hour of his truck going into the ditch. The issue is whether that alcohol impaired his ability to drive, even slightly: R v Stellato, [1993] O.J. No. 18 (Ont. C.A.), affirmed, [1994] S.C.J. No. 51.
[114] I find that while the accused was not heavily intoxicated, his ability to drive on the presenting road conditions was impaired by alcohol.
[115] On the whole of the evidence and the inference adverse to the accused available to me under s. 253(1)(a) as a result of his refusal to provide a breath sample, I find the accused guilty as charged on count one.
Released: October 6, 2015
Signed: "Justice P.H.M. Agro"
[^1]: i.e. an actual or honest belief