Court File and Parties

Ontario Court of Justice

Date: 2016-03-10

Court File No.: Brampton 15-1264

Between:

Her Majesty the Queen

— and —

Robert Greenwood

Before: Justice J.W. Bovard

Heard on: November 16th and 17th, 2015

Reasons for Judgment released on: March 10, 2016

Counsel:

• Ms. Sibian, counsel for the Crown
• Mr. Lent, counsel for the defendant Robert Greenwood

BOVARD J.:

Introduction

[1] These are the court's reasons for judgment after the trial of Robert Greenwood on a charge of care or control 'over 80'.

The Issues

[2] The defence brought a Charter application alleging breaches of ss. 7, 8, 9. It asks that the evidence of the breath samples be excluded pursuant to s. 24(2) of the Charter.

[3] In addition, whether the police administered the breath tests as soon as practicable is an issue.

[4] The case proceeded in a blended fashion.

The Evidence

[5] At 4:24 a.m. on the day in question, Officer Coupland drove by the parking lot of a motel that is known for prostitution and illicit drug use. He was driving about 40 KPH. She glanced into the parking lot and observed a red truck and a black passenger car backed into parking spaces next to each other.

[6] The truck's lights were on. Officer Coupland could not say if the truck's engine was on, but she thought that it was because its lights were on and it was minus 18 degrees. But she did not see exhaust coming from the truck's tail pipes.

[7] She saw Mr. Greenwood get out of the driver's seat of the red truck and walk over to a male in the other vehicle. They engaged in a hand-to-hand transaction. She could not see what they exchanged.

[8] Officer Coupland kept driving for approximately 100 to 200 meters and at 4:25 a.m., she turned around and drove into the parking lot at 4:26 a.m. or 4:27 a.m. She saw Officer Carroll there. Officer Carroll testified that at 4:26 a.m., he entered the parking lot and saw the truck with its engine running. He believed that the truck was running because its bright headlights were on. He said that the parking lot is private property.

[9] Officer Coupland said that Officer Carroll told her that he had checked the licence plate of one of the vehicles. Officer Carroll testified that it was the truck's licence plate. Officer Coupland told Officer Carroll about the hand-to-hand transaction. In cross-examination she said that it was 4:25 a.m. when she told Officer Carroll about the hand-to-hand transaction. In examination-in-chief, she said that she turned around to go back to the parking lot at 4:25 a.m. However, this is but a slight difference.

[10] Officer Coupland said that at 4:26 a.m., they agreed to approach the vehicles to investigate a possible drug offence. Officer Carroll added that they wanted to know why Mr. Greenwood was there and to ask him if he knew the person in the other car, which had left by then.

[11] Officer Carroll went to speak to Mr. Greenwood who was the driver of the truck. Officer Coupland asked Mr. Greenwood what he was doing there. At 4:33 a.m., she noticed that Mr. Greenwood's eyes were red-rimmed and watery. Mr. Greenwood told Officer Coupland that he had been drinking. He showed her a water bottle that had alcohol in it.

[12] At 4:34 a.m., Officer Coupland formed the suspicion that Mr. Greenwood had care or control of his vehicle and that he had alcohol in his body. She made a demand for a breath sample into an Approved Screening Device (ASD).

[13] Mr. Greenwood agreed to take the test. He said that he was not driving and the truck keys were in the back seat. The engine was not running at this point. He told Officer Coupland that he had a drink one hour ago at a friend's home. He stopped at the motel to take a break. He was on his way home in Scarborough. Officer Carroll observed that when Mr. Greenwood stepped out of his truck to go take the breath test, he momentarily lost his balance. He did not notice any other indicia of impairment.

[14] Officer Coupland did not ask Mr. Greenwood if he had eaten anything. He said that he has to wait five minutes to administer the ASD breath test if the person has eaten food soon before the test, but there was no indication that Mr. Greenwood had been eating.

[15] In cross-examination, Mr. Lent referred Officer Coupland to a directive entitled "Road Safety Services Operational Issues Related to Approved Screening Devices" (exhibit 3). The directive states in paragraph 2 that:

Officers should question test subjects as to whether they have consumed anything by mouth 15 minutes prior to the subject being administered the breath test.

a) False positive results due to food and non-alcoholic beverages are rare, transient and small in nature.

b) Where there is reason to suspect the subject has consumed alcohol-containing substances, officers should wait 15 minutes from last consumption before administering the ASD test.

c) Where there is reason to suspect the subject has consumed food or non-alcoholic substances, officers should wait 5 minutes from last consumption before administering the ASD test.

[16] At 4:35 a.m., Officer Coupland demonstrated how to give a breath sample into the ASD. The device was a Drager Alcotest 6810. It was in good working order. Officer Coupland tested it at the beginning of his shift.

[17] At 4:36 a.m., Mr. Greenwood failed the ASD breath test. This indicated to Officer Coupland that Mr. Greenwood's blood alcohol level was over 100 milligrams of alcohol in 100 millilitres of blood.

[18] At 4:36 a.m., Officer Coupland arrested Mr. Greenwood for care or control 'over 80' based on his failure of the ASD breath test.

[19] Officer Coupland said that Officer Carroll searched Mr. Greenwood and found the keys to the truck in his pocket. Officer Coupland put Mr. Greenwood in her police cruiser.

[20] At 4:46 a.m., she read him his rights to counsel.

[21] At 4:47 a.m., she cautioned him and made a demand that he provide breath samples. Mr. Greenwood said that he understood the demand and that he did not want to call a lawyer.

[22] At 4:55 a.m., Officer Coupland asked Mr. Greenwood again if he wanted to speak to a lawyer. This time he said that he wanted to speak to Doug Lent. Officer Coupland took Mr. Greenwood to the nearest police station for the breath tests.

[23] At 4:58 a.m., they arrived at 21 Division. Mr. Greenwood went to the cell area. Officer Coupland told Officer Nicholson, the breath technician, that Mr. Greenwood wanted to speak to Mr. Lent. Officer Nicholson got Mr. Lent's telephone number.

[24] At 5:05 a.m., Officer Coupland called Mr. Lent's office and left a message.

[25] At 5:10 a.m., Officer Coupland called another telephone number to try to get a hold of Mr. Lent.

[26] At 5:13 a.m., Mr. Greenwood finished speaking with Mr. Lent. The police booked in Mr. Greenwood and then put him in a cell.

[27] At 5:18 a.m., Officer Coupland turned over Mr. Greenwood to Officer Nicholson for the breath tests. Sometime prior to this, Officer Coupland gave Officer Nicholson the grounds for the arrest.

[28] Officer Nicholson testified that when he administered the breath tests to Mr. Greenwood he observed that Mr. Greenwood had the odour of an alcoholic beverage on his breath, his eyes were watery and blood shot, his pupils were dilated, and his speech was fair. His opinion was that his ability to drive a motor vehicle was impaired by alcohol. He based this on his observations, Officer Coupland's grounds for the arrest, and the Intoxilyzer readings of 160 and 170 milligrams of alcohol in 100 millilitres of blood.

[29] At 6:40 a.m., after the breath tests, Officer Coupland served Mr. Greenwood with the notice to introduce the certificate of analyst and with a copy of the certificate. They are exhibits in the trial.

[30] Mr. Greenwood testified only on the trial proper. He said that he had been visiting a friend on the night in question. He had a rum and coke with dinner. It contained between 2 and 3 oz. of liquor.

[31] While at his friend's home he got a call from an old friend that he had not seen for a while. She lived in the same area where the motel is located. He decided to go meet her. He left his friend's home between 2:00 a.m. and 2:30 a.m. He had two small water bottles. One contained rum and maybe a little coke. The other contained 50% rum and 50% coke. He planned to meet his friend and stay at the motel.

[32] He arrived at the motel at 2:45 a.m. He parked next to a dark car. At first, in examination-in-chief, he said that he thought that he left on his (Mr. Greenwood's) lights. Later, in cross-examination, he was more certain that he had left them on. He did not know why he left them on.

[33] He put the truck keys in his jacket pocket. At the same time, the owner of the dark car left one of the motel rooms smoking a cigarette. Mr. Greenwood asked him if he could have a cigarette. The person gave him one. Mr. Greenwood drank all of the rum while he waited. He thinks that he left his truck to throw away the bottle.

[34] But he also said that the police came by within minutes of the person giving him the cigarette. So it is difficult to see when exactly he would have drunk the rum. In examination-in-chief, he said that when his lady friend did not show up he was going to take a cab back to his friend's home where he had been before that night. But it is not clear when he made this decision. In cross-examination, he said that he could have also rented a room at the motel. But Officer Carroll testified that the motel was closed.

[35] It is also not clear how the police could have come within minutes of him having received the cigarette. He said that he arrived at the motel at 2:45 a.m. He parked and put the keys in his jacket. Almost simultaneously, the owner of the black car came out of a motel room and gave him a cigarette. Then he said that within minutes of this the police came by. But he also said that he waited for his girlfriend for two hours. So since the police arrived at around 4:24 a.m., they could not have arrived shortly after the person gave him the cigarette.

[36] His confusion is explained, perhaps, by his admission that he was drunk. He gave that as a reason for having told the police that the truck keys were in the back seat.

[37] The Crown asked him when his last drink was. He said that it was about 10 minutes before the police arrived. But he did not tell this to the police. He admitted that it was hard to answer this question. He said that it sounded accurate that the police arrived at 4:15 a.m., so that is when he had his last drink, but it could have been before.

[38] I found Mr. Greenwood's evidence confusing; probably because as he admitted, he was drunk. Consequently, I do not have any confidence in his ability to remember very well what happened, and especially, when he had his last drink.

[39] Mr. Greenwood said that the engine of his truck was never running, nor were the keys in the ignition. He put it in first gear so that it would not move without the engine being started. He said that when he parked he knew that he was going to drink so that is why he took the keys out of the ignition.

[40] The defence did not call evidence on the Charter application.

The Position of the Parties

[41] The defence submits that the officer's evidence is inconsistent, but I do not find any inconsistencies with regard to matters of substance.

[42] The defence argues that the officers were initially investigating a drug offence and that when they could not discover anything of interest in this regard they should have left Mr. Greenwood alone. They did not have articulable cause to detain him for an investigative detention.

[43] The flaw in this argument is that based on Officer Coupland's observation of a hand-to-hand transaction between Mr. Greenwood and another person, just after 4:00 a.m., at this location that is known for illicit drug use, she had a sufficient basis to conduct an investigative detention of Mr. Greenwood in order to investigate a possible drug offence.

[44] In R. v. Mann 2004 SCC 52, para. 45, the court held that "police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary".

[45] In addition, once the officers determined that there was no basis to continue to investigate a drug offence they stopped doing that. They did not continue with a drug investigation. Mr. Lent's submission ignores Officer Coupland's testimony that during the drug investigation, Mr. Greenwood told her that he had had a drink an hour ago. Since Mr. Greenwood was in the driver's seat of his truck when the officers approached him, this was sufficient to give the officer a reasonable suspicion that he had care or control of his truck while having alcohol in his body. I interpret the officer's evidence to be that at this point they ceased the drug investigation and commenced an investigation of a drinking and driving offence.

[46] The circumstances of Mr. Greenwood being in the driver's seat, plus his admission to having had a drink one hour before formed a legal basis for a demand for a breath sample into an ASD.

[47] Mr. Lent's next argument is that Officer Coupland had second thoughts regarding her grounds for making a breath demand into an ASD because she asked Mr. Greenwood on the way to the police station again when he had had his last drink and because there was alcohol in the truck.

[48] I do not remember any evidence that Officer Coupland asked Mr. Greenwood on the way to the police station again when he had his last drink. Even if she did, I do not see this as undermining the basis of her reasonable suspicion for making the ASD breath demand, since it was based on Mr. Greenwood's admission of having had a drink an hour ago. The defence did not successfully undermine her testimony in this regard.

[49] Mr. Lent's next argument is that Officer Coupland did not follow the Directive's instructions with regard to waiting times before administering an ASD breath test. The problem with this argument is that paragraph 2 of the Directive is unclear and possibly inconsistent.

Paragraph 2 states (emphasis added):

Officers should question test subjects as to whether they have consumed anything by mouth 15 minutes prior to the subject being administered the breath test".

a) False positive results due to food and non-alcoholic beverages are rare, transient and small in nature.

b) Where there is reason to suspect the subject has consumed alcohol-containing substances, officers should wait 15 minutes from last consumption before administering the ASD test.

c) Where there is reason to suspect the subject has consumed food or non-alcoholic substances, officers should wait 5 minutes from last consumption before administering the ASD test.

[50] Paragraph 2 starts saying that the officer should question the subject about consumption of "anything by mouth 15 minutes prior to the subject being administered the breath test".

[51] Then in subparagraph b) the Directive specifies the consumption of "alcohol-containing substances" as requiring a 15 minute wait prior to administering the ASD breath test. This could be seen as somewhat inconsistent with what the Directive states at the beginning of paragraph 2 by excluding non-alcoholic substances. Therefore, it is not clear.

[52] And to add to the confusion, in subparagraph c) the Directive states that "where there is reason to suspect the subject has consumed food or non-alcoholic substances, officers should wait 5 minutes from last consumption before administering the ASD test". This subparagraph appears to contradict what the Directive states at the beginning where it directs that consumption of "anything by mouth 15 minutes prior to the subject being administered the breath test" is an issue.

[53] I find that paragraph 2 of the Directive is confusing, potentially inconsistent and possibly contradictory. Consequently, it does not present a clear protocol for officers that are about to administer an ASD breath test. Therefore, in the case at bar it cannot be used to impugn Officer Coupland's actions in administering the breath test when she did, nor in relying on the fail result to form her reasonable and probable grounds to arrest Mr. Greenwood for care or control over 80.

[54] In addition, the fact that the Directive states in subparagraph a) that "False positive results due to food and non-alcoholic beverages are rare, transient and small in nature" further weakens the defence argument that Mr. Greenwood's fail result on the ASD cannot be relied on to form reasonable and probable grounds to arrest him for care or control over 80.

[55] Mr. Lent's next argument is that Mr. Greenwood rebutted the presumption of care or control in s.258(1)(a) that "where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle…the accused shall be deemed to have had the care or control of the vehicle,…unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle,… in motion or assisting in the operation of the aircraft or railway equipment, as the case may be".

[56] The evidence shows that Mr. Greenwood was in the driver's seat of his truck when the officers approached him and spoke to him. The lights were on and he had the keys in his pocket. He testified that he probably told the officers that the keys were in the back seat because he was drunk.

[57] The Supreme Court held in R. v. Boudreault 2012 SCC 56 that:

"care or control", within the meaning of s. 253(1) of the Criminal Code, signifies (1) an intentional course of conduct associated with a motor vehicle; (2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; (3) in circumstances that create a realistic risk, as opposed to a remote possibility, of danger to persons or property (para. 9).

The existence of a realistic risk of danger is a matter of fact (para. 11). The court said that "The risk of danger must be realistic and not just theoretically possible: Smits, at para. 60. But nor need the risk be probable, or even serious or substantial" (para. 34). The "realistic" risk standard "establish[es] a low threshold consistent with Parliament's intention to prevent a danger to public safety (para. 35).

[58] The court pointed out that:

In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways. First, an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so; second, an inebriated person behind the wheel may unintentionally set the vehicle in motion; and third, through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property (para. 42).

[59] The court further stated that:

"Absent evidence to the contrary, a present ability to drive while impaired, or with an excessive blood alcohol ratio, creates an inherent risk of danger. In practice, to avoid conviction, the accused will therefore face a tactical necessity of adducing evidence tending to prove that the inherent risk is not a realistic risk in the particular circumstances of the case (para 13).

[60] In considering Mr. Greenwood's evidence I directed myself according to D.W. v. The Queen, 63 C.C.C. (3d) 397 @ 409:

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.

[61] Based on Boudreault, I find that Mr. Greenwood did not rebut the presumption. Therefore, he is deemed to be in care or control. And I find as a fact that he was in care or control. His evidence that he did not have the intention to drive is not persuasive. I do not believe it. Moreover, I find that he falls squarely within the scenarios presented by Boudreault in paragraph 42.

[62] Mr. Lent's last argument was that the police did not administer the Intoxilyzer breath tests as soon as practicable.

[63] In R. v. Vanderguggen, 206 C.C.C. (3d) 489, the Ontario Court of Appeal stated in paragraph 8 that:

Section 258(1)(c)(ii) of the Criminal Code is part of the scheme to ease proof of the concentration of alcohol in the accused's blood for inter alia proving the "over 80" offence in s. 253(b). Section 258(1)(c)(ii) provides that where the breath samples were taken "as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken" then, provided certain other conditions are fulfilled, the prosecution may rely upon the presumption of identity. This presumption simply deems the results of the breath tests to be proof of the accused's blood alcohol level at the time of the offence in the absence of evidence to the contrary. Thus, in this case, although the first test was not taken until more than one hour after the appellant drove the vehicle, that test is deemed to show what his blood alcohol level was at that time of the driving.

[64] The court further stated in explaining the principle of as soon as practicable that:

Decisions of this and other courts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances. See R. v. Phillips (1988), 42 C.C.C. (3d) 150 (Ont. C.A.) at 156; R. v. Ashby (1980), 57 C.C.C. (2d) 348 (Ont. C.A.) at 351; and R. v. Mudry, R. v. Coverly (1979), 1979 ABCA 286, 50 C.C.C. (2d) 518 (Alta. C.A.) at 522. There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably. See R. v. Payne (1990), 56 C.C.C. (3d) 548 (Ont. C.A.) at 552; R. v. Carter (1981), 59 C.C.C. (2d) 450 (Sask. C.A.) at 453; R. v. Van Der Veen (1988), 1988 ABCA 277, 44 C.C.C. (3d) 38 (Alta. C.A.) at 47; R. v. Clarke, [1991] O.J. No. 3065 (C.A.); and R. v. Seed, [1998] O.J. No. 4362 (C.A.). (para. 12)

In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that -- in all the circumstances -- the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody. See R. v. Letford (2000), 150 C.C.C. (3d) 225 (Ont. C.A.) at para. 20; R. v. Carter, supra; R. v. Cambrin (1982), 1 C.C.C. (3d) 59 (B.C.C.A.) at 61-3, and R. v. Seed at para. 7.

[65] In the case at bar, I find that the Crown proved beyond a reasonable doubt that the police administered the breath tests as soon as practicable.

[66] The evidence shows that the officers approached Mr. Greenwood as he sat in the driver's seat of his truck at 4:26 a.m. They spoke with him and at 4:34 a.m., Officer Coupland formed a suspicion that he had alcohol in his body.

[67] At 4:35 a.m., Officer Coupland demonstrated how to give a breath sample. At 4:36 a.m, Mr. Greenwood failed the breath test and Officer Coupland arrested him for care or control "over 80".

[68] Mr. Greenwood protested that he was not driving so Officer Coupland had to explain the charge to him, as is her duty under s. 10(a) of the Charter. Officer Carroll then searched Mr. Greenwood and his truck. Mr. Greenwood said that his cell phone was in the truck.

[69] After this, Officer Coupland put him in her cruiser and at 4:46 a.m., she read him his rights to counsel. She cautioned him at 4:47 a.m. and made the breath demand on him.

[70] At 4:55 a.m., she asked him again if he wanted to speak to a lawyer. He said that he wanted to speak to Mr. Lent. She took him to the nearest police station.

[71] At 4:58 a.m., they arrived at 21 Division. Mr. Greenwood went to the cell area. Officer Coupland told Officer Nicholson, the breath technician, that Mr. Greenwood wanted to speak to Mr. Lent. Officer Nicholson got Mr. Lent's telephone number.

[72] At 5:05 a.m., Officer Coupland called Mr. Lent's office and left a message.

[73] At 5:10 a.m., Officer Coupland called another telephone number to try to get a hold of Mr. Lent.

[74] At 5:13 a.m., Mr. Greenwood finished speaking with Mr. Lent. The police booked in Mr. Greenwood and then put him into a cell.

[75] At 5:18 a.m., Officer Coupland turned over Mr. Greenwood to Officer Nicholson for the breath tests. Sometime prior to this, Officer Coupland gave Officer Nicholson the grounds for the arrest.

[76] Officer Nicholson completed the first breath test at 5:33 a.m. He started the second test at 5:56 a.m.

[77] After reviewing the evidence of how the police proceeded, and pursuant to the law cited above, I find that the Crown proved beyond a reasonable doubt that the breath tests were administered "within a reasonably prompt time under the circumstances" and, therefore, as soon as practicable. I find that the police proceeded in a reasonable manner and as expeditiously as possible in the circumstances.

[78] Based on all of the above, I find that the Crown proved the charge beyond a reasonable doubt. I find Mr. Greenwood guilty and register a conviction.

Released: March 10, 2016

Justice J.W. Bovard