Court Information

Ontario Court of Justice

Date: 2016-03-16

Court File No.: Central East - Newmarket 4911-998-15-01283-00

Parties

Between:

Her Majesty the Queen

— AND —

Michael Da Silva

Judicial Officer and Counsel

Before: Justice D.S. Rose

Heard on: January 21 and March 3, 2016

Reasons for Judgment released on: March 16, 2016

Counsel:

• J. Costain — counsel for the Crown
• P. Patterson — counsel for the defendant Michael Da Silva

ROSE J.:

Facts and Background

[1] Michael Da Silva is charged with Impaired and Over 80 Operation of a Motor Vehicle on February 2, 2015. The trial raises three issues. The first is whether Mr. Da Silva was arrested without reasonable and probable grounds, and therefore whether his breath was seized in violation of his rights under s. 8 of the Charter of Rights and Freedoms. The second issue is whether the Crown has proven that his Blood Alcohol Content (BAC) was Over 80 at the time of operation because of the effect of bolus drinking on the Expert Opinion proffered by the Crown. Lastly, has the Crown proven that the accused's ability to operate a motor vehicle was impaired by alcohol under s. 253 of the Criminal Code.

[2] Police Constable Kyle Parkes of York Regional Police Service (YRPS) testified that he was working in uniform with his coach or training officer PC Morgan on February 2, 2015 at roughly 8:45 p.m. They were in the parking lot at Highway 7 and 27 on the northwest side, near the Finn McCool Bar. At that time two females approached them. Parkes understood them to be a manager and employee of that Bar. They told Parkes and Morgan that two males had just left the bar in a very intoxicated state. They were so intoxicated that the server at the Bar refused to serve them more than one beer. They told the officers that the men left in a nearby Black Jeep which was driving away westbound out of the plaza. They went so far as to point out a Jeep parked nearby similar to the one the men left in.

[3] Parkes testified that he himself did not see anyone leaving the parking lot but the women told him that the Jeep had left "just now". With that information, Parkes and Morgan left the plaza going west looking for the Jeep. They headed in the same direction pointed out by the bar manager and employee. Parkes was driving. As they left the plaza Parkes and Morgan both noticed the Black Jeep leaving the parking lot. They caught up to the vehicle a very short while later and stopped it for a sobriety check. The stop was effected at Highway 427 and Zenway Boulevard at 8:51 p.m. The audio/video recording equipment was working in the police cruiser and it captured the police car as it caught up to, and stopped the Jeep. It continued to capture the investigation and arrest of Mr. Da Silva.

[4] PC Parkes testified that, as he followed it, the vehicle made a quick diversion from the left turn lane and then into the right lane. Once the police lights were activated, the Jeep pulled over without difficulty. PC Parkes agreed that the time from when he saw the Jeep pull out of the parking lot to the time he stopped the vehicle was no more than a minute.

[5] PC Parkes testified that he approached the driver's side window of the Jeep and met the driver who identified himself as Michael Da Silva, the accused. PC Morgan was with him at the driver's side window. PC Parkes said that Mr. Da Silva's eyes appeared sleepy and glossy. Both he and PC Morgan detected a strong odour of an alcoholic beverage coming from his mouth and also the vehicle. His speech was slow. He pronounced the words "Why was I stopped", very slowly. PC Morgan described his speech pattern as being slurred, and his eyes puffy as if sleepy. Mr. Da Silva had difficulty locating his documents, so PC Parkes asked him to turn the interior light of the vehicle on to help. He did that, but immediately shut it off. He did locate the ownership but then dropped it on the floor of the car. He located that document again after passing it over.

[6] PC Parkes told Mr. DaSilva that he had a report from some people, to which he replied "I just had two beers right now".

[7] PC Parkes then asked Mr. Da Silva to step out of the car. He read him a roadside breath demand. Parkes testified that Mr. Da Silva didn't want to do the breath demand, and had to be asked once again to leave the vehicle. Parkes and Morgan gave evidence that Mr. Da Silva shut off the car, and then dropped his keys which set off the car alarm. Mr. Da Silva exited the car as the car alarm continued to sound. Mr. Da Silva was at first reluctant to agree to take the test. He said "I just had two beers", to which PC Morgan said "Are you refusing to do it" meaning the breath test. Further brief discussion followed between the three men at the roadside about Mr. Da Silva refusing the breath test and the consequences of refusing. PC Parkes told Mr. Da Silva "Okay are you? Okay, I recommend that you don't refuse to do it because if you do, you'll be under arrest, okay?" PC Morgan then told Da Silva to unlock the car door. Parkes testified that that at that stage any refusal would have been from a roadside ASD test. Parkes did in fact read the breath demand under s. 254(2).

[8] PC Parkes accompanied Mr. Da Silva back to the police cruiser and was almost immediately joined by PC Morgan. At that time it was PC Parkes' intention only to proceed with an ASD test, but when Morgan arrived at the police car, he arrested Mr. Da Silva for impaired driving. That time was 8:56. PC Morgan testified that he was the one who made the decision to arrest Mr. Da Silva and he directed PC Parkes to make the arrest. His viva voce evidence on that point was contradicted by the roadside video which shows that PC Morgan actually advised Mr. Da Silva that he was under arrest rather than PC Parkes. At this point the car alarm triggered by Mr. Da Silva dropping the keys was still sounding. Mr. Da Silva was read his Rights to Counsel by PC Morgan at 9:01 p.m. A caution was read at 9:02 p.m. and a breath demand at 9:04 p.m. He was then transported to 4 District for investigation. Mr. Da Silva arrived at 4 District at 9:29 p.m and was paraded. Mr. Da Silva had asked to speak with a lawyer, Fernando Teixeira, and PC Parkes left a message for him at 10:01 p.m. Mr. Teixeira did call back at 10:39 p.m. and Mr. Da Silva then spoke with him. That call ended at 11:11 p.m.

[9] PC Morgan is also a YRP officer, with some 6 years' experience. He testified about the stop and arrest of Mr. Da Silva that night. Much of his evidence is recorded by the dashcam of his police car, and is consistent with PC Parkes testimony. He described his grounds for arrest as being the strong odour of alcoholic beverage on Mr. Da Silva's breath, the slurred speech, puffy eyes, slowness in getting documents, dropping the keys, and inability to shut off the alarm. In cross-examination he elaborated to include the information he received from the ladies at the bar who told him that the two men in the Jeep were intoxicated, as well has his training and experience. He also testified about unsteadiness on Mr. Da Silva's feet, which PC Parkes did not testify to.

[10] The Crown also called PC Todd Stewart, a Qualified Breath Technician. He testified to receiving two samples of breath from Mr. Da Silva on February 2, 2015 into an Intoxilyzer 8000C. The first sample was obtained at 11:16 p.m. and the second at 11:38. The readings were 136 and 131 milligrams of alcohol in 100 ml of blood (BAC) respectively. PC Stewart noted that Mr. Da Silva's speech was good, his face was normal, his eyes bloodshot, his clothes orderly, and he had an odour of an alcoholic beverage on his breath. He was polite and cooperative.

[11] The Crown put into evidence an affidavit from Dr. Nancy Luk pursuant to s. 657.3 of the Criminal Code. Dr. Luk is a forensic scientist in the toxicology department of the Center of Forensic Sciences, and an expert in that field. Dr. Luk opines in that report that Mr. Da Silva's BAC was between 130 and 190 milligrams of alcohol in 100 ml. of blood between 8:15 and 8:52 p.m. on the night based on his readings of 136 and 131 milligrams of alcohol in 100 ml. of blood at 11:16 and 11:38 respectively.

[12] Dr. Luk's report is based on four common assumptions: a standard rate of elimination; an allowance for a plateau; "No consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the incident"; and no consumption of alcohol after the time of driving and before the breath tests.

Issues

1. Mr. Patterson argues that Mr. Da Silva's rights were violated under s. 8 of the Charter because PC Morgan did not have grounds to arrest his client and that the resulting breath tests should be excluded under s. 24(2) of the Charter.

2. Has the Crown proven the third assumption in Dr. Luk's report, namely no bolus drinking?

3. Has the Crown proven that Mr. Da Silva's ability to operate a motor vehicle was impaired by alcohol?

Issue 1 – The Charter Argument

[13] Reasonable and probable grounds to arrest a person has both a subjective and objective component. There is no shortage of authoritative pronouncements on the point, particularly in drinking and driving cases. In R. v. Bush 2010 ONCA 554, Durno J. sitting ad hoc in the Court of Appeal said,

36 Drinking and driving prosecutions involve a continuum of findings, beginning with a reasonable suspicion the driver has alcohol in his or her body, the standard for an Approved Screening Device (roadside) demand pursuant to s. 254(2) of the Criminal Code. At the other end of the continuum, is the standard for conviction, proof beyond a reasonable doubt that the operator's ability to operate a motor vehicle was impaired by the consumption of alcohol or that the driver's blood alcohol concentration was over the legal limit.

37 Between suspicion and proof beyond a reasonable doubt lies reasonable and probable grounds. Section 254(3) of the Criminal Code authorizes peace officers to demand Intoxilyzer breath samples provided the officer "has reasonable and probable grounds to believe that a person is committing or at any time within the preceding three hours has committed" the offence of impaired operation or driving 'over 80.' (emphasis added) Reasonable and probable grounds does not amount to proof beyond a reasonable doubt or to a prima face case: see Censoni at para. 31 and R. v. Shepherd 2009 SCC 35 at para. 23.

38 Reasonable and probable grounds have both a subjective and an objective component. The subjective component requires the officer to have an honest belief the suspect committed the offence: R. v. Bernshaw, [1995] 1 S.C.R. 254 at para. 51. The officer's belief must be supported by objective facts: R. v. Berlinski, [2001] O.J. No. 377 (C.A.) at para. 3. The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest: R. v. Storrey, [1990] 1 S.C.R. 241 at p. 250.

[14] In this case I would add that hearsay information may be used to formulate the grounds. Where the hearsay information comes from non-police sources the Court requires some threshold reliability; see R. v. Censoni 2001 CarswellOnt 4590 (S.C.) at paras. 57-58. The Officer making the arrest is entitled to rely on his or her experience in such matters; see Censoni at paras. 36-37. In the case at bar, PC Morgan had hearsay information from two bar staff who spoke directly to him in the immediate proximity to the Bar at the moment the Jeep was leaving the parking lot. Given this, there was a threshold level of reliability to PC Morgan's information from the two women from the Bar. He was entitled to rely on it. He was also entitled to rely on his experience as he did.

[15] PC Morgan articulated his reasonable and probable grounds to arrest Mr. Da Silva as being:

i. the strong odour of alcoholic beverage on his breath;

ii. the slurred speech;

iii. puffy eyes;

iv. slowness in getting documents;

v. dropping the keys;

vi. unsteadiness on his feet; and

vii. inability to turn off the car alarm.

[16] Objectively, a reasonable person in the shoes of PC Morgan would be able to conclude that he had grounds for the arrest of Mr. Da Silva, and I so find. The test is not as high on the ultimate verdict, and there was specific information in front of PC Morgan that Mr. Da Silva had consumed alcohol himself, that his motor coordination skills were impaired by alcohol to the extent that he was committing an offence. The videotape displaying the interaction at the roadside does not detract from PC Morgan's grounds. I would not find a s. 8 breach, and accordingly I would not engage in a s. 24(2) analysis.

Issue 2 – The Bolus Drinking Issue

[17] While the Crown may rely on the information from the two women given to PCs Morgan and Parkes that the occupants of the Jeep had just left the Bar, to support PC Morgan's grounds for arrest, on the trial proper that information is inadmissible hearsay. Nonetheless, the video does depict Mr. Da Silva saying that he had just consumed two beers. That was a little more than a minute after the time the Jeep left the parking lot at the Bar. There is therefore direct evidence that Mr. Da Silva said he had just had two beers, and was seen leaving a parking lot with a Bar in it. The time frame from the police first viewing the Jeep to its stop is a matter of only a few minutes.

[18] Dr. Luk's report has a fairly standard third assumption, namely no consumption of large quantities of alcohol within 15 minutes of the event. This is a foundation fact which the Crown must prove in order for the Court to give weight to the report, see R. v. Paszczenko 2010 ONCA 615. As the Court in Paszczenko pointed out, where there is no evidence from the accused, third parties, or other facts in evidence a common sense inference may be drawn that persons do not engage in consumption of large quantities of alcohol in a short period of time. But that is not the case here. Here there is evidence that Mr. Da Silva told the officer about recent consumption and was arrested driving away from a Bar located in the vicinity. Lastly, the police had information at their disposal about where that consumption had occurred with which they could have investigated further if they chose to.

[19] In the evidence before me there is no definition of "large quantities". Is two beers a large quantity? In R v. Smith 1998 CarswellOnt 3194 at para. 31, Weekes J. was faced with a similar problem and found that he could not place any weight on the expert opinion because of a want of definition. In R. v. Calabretta 2008 CarswellOnt 9305, Langdon J. sitting as the Summary Conviction Appeal Court came to a similar opinion in upholding an acquittal. In Calabretta the Court gave a helpful survey of similar cases which found that the Crown had proven the assumption of no bolus drinking and those that did not.

[20] In the result I find that the absence of bad driving or gross symptoms of impairment, and the presence of an admission of more than minimal recent consumption, the observation of the accused driving away from a bar located a short distance away coupled with the lack of definition regarding bolus drinking from Dr. Luk gives me pause. The Crown must prove the absence of bolus drinking, see R. v. Grosse, 1996 CarswellOnt 1949 (C.A.), and it has not done so. Accordingly I give no weight to Dr. Luk's report and Mr. Da Silva is acquitted of the Over 80 Count.

Issue 3 – Impaired Driving

[21] In order to prove this charge the Crown must prove that Mr. Da Silva's ability to operate a motor vehicle was impaired by alcohol, even if slightly. If the evidence of impairment is so frail as to leave a reasonable doubt, then the accused is entitled to be acquitted; see R. v. Stellato 1993 ONCA 3375. In the case before me there is only the slightest suggestion of bad driving, namely a movement from a left turn lane into a right lane to stop for the police. Mr. Da Silva's indicia of impairment include some motor coordination skills deficit and slurred speech. As regards the dropping of the keys, I consider the admission from PC Parkes that some people are nervous when speaking with the police. While PC Morgan saw Mr. Da Silva as being unsteady on his feet, PC Parkes did not, nor did Cst. Stewart. Both Csts. Morgan and Parkes took Mr. Da Silva's speech pattern to be slurred, while Cst. Stewart did not. Cst. Morgan thought Mr. Da Silva to be at the level of impairment where he could be arrested, but PC Parkes did not. I take into consideration their differing experience level, but the fact remains that the Crown evidence is not consistent about the observed indicia of impairment on Mr. Da Silva or its level. Coupled with the lack of bad driving I would find that Mr. Da Silva's level of impairment is sufficiently frail that the Crown has not proven this charge beyond a reasonable doubt. The accused is accordingly acquitted of Impaired Operation.

March 16, 2016

Justice David S. Rose

Released: March 16, 2016

Signed: "Justice D.S. Rose"