Court Information
Ontario Court of Justice
Between: Her Majesty the Queen — and — Jacub Dvorak
Before: Justice Peter Harris
Reasons for Judgment: March 24, 2016
Counsel:
- Mr. T. Goddard for the Crown
- Mr. J. Rosenthal for the Defence
Harris, J.:
Introduction
[1] Jacub Dvorak was charged with "impaired operation," "excess alcohol," and "fail to remain" under the Criminal Code, on the 27th day of September, 2014.
[2] The Defendant/Applicant applies under sections 8, 9, and 24(2) of the Charter for the exclusion of the breath sample evidence on the grounds that the arrest and demand for samples of his breath were in violation of his s. 8, 9 Charter rights.
[3] There are two issues to be determined on this application. (1) Did the arresting officer, P.C. Leon Chan, have reasonable and probable grounds to arrest the Applicant for "impaired operation" and make an Intoxilizer demand? (2) If the Applicant's s. 8 and 9 Charter rights were infringed, should the breath sample evidence be excluded under s. 24(2) of the Charter?
The Evidence
[4] On September 27, 2014 at about 5:30 pm, Linda Dacunha was driving westbound in the collector lanes of the 401 Highway at Dufferin Street in Toronto when she was struck from behind by another vehicle. It had been "bumper to bumper" traffic and after the impact, they pulled to the shoulder and she noticed her "back bumper had been torn off." She did not notice any damage to the other car. They exchanged information and she "got back into" her car and noticed, "he was stumbling back to his car." She stated he was "stumbling, just not normal, no eye contact, slurring…" She testified she called 911 and told them she was "hit by a car." "I told them everything, the man is drunk." She gave evidence that while she was on the phone to 911, a tow truck stopped and the driver of the tow truck asked him, "Are you drunk?" At this point the other "man went back to his car and took off. He jumped in his car, backed up and took off." Ms. Dacunha stated that when he drove away, she still had his insurance and ownership documents. She said he was wearing a white "wife beater" (tank top) shirt and blue jeans and he remained at the scene for 45 minutes to one hour before driving away.
[5] P.C. Leon Chan had been employed by the O.P.P. for about 20 years and on September 27, 2014, was working out of the Toronto Detachment. He testified he was at Kennedy Road and the 401 at about 7:38 pm when he heard from radio dispatch that there had been a "two-car personal injury" accident at 401 and Dufferin Street in the westbound collector lanes. He stated he was given information that there was a male driver and a female driver and that the male had presented his ownership to the female to copy and then the male left the scene. The female still had his ownership and insurance and provided a description of the vehicle he drove and his licence plate number BNNY853. P.C. Chan testified that he was provided with a description of the male who left the scene as, "a white male with a beard and white tank top." He was advised that the vehicle the male was driving was registered to Jacub Dvorak of 341 Melrose Avenue Toronto. P.C. Chan stated, "I went there to look for the fail to remain vehicle."
[6] He obtained directions then drove to 341 Melrose Avenue, arrived there at 7:58 pm and began looking for a gold Nissan with fresh damage to the front left part of the vehicle. At 8:04 p.m. he stated he observed a gold Nissan driving slowly eastbound on that street. It made a "three point turn and then started to go back west again." He noticed the plate was BNNY853, and it had "fresh damage to the front left of the car." He observed a white male with a beard driving and he was wearing a white tank top. P.C. Chan stated he was in uniform and his cruiser was parked east of 341 Melrose on the opposite side of the street. The officer opened the driver's door and observed that the driver's eyes were bloodshot and there was a heavy odour of alcohol on his breath. P.C. Chan testified that, "given the information I had, I advised him he was under arrest for impaired driving." During a "pat-down search" he located a driver's licence in the name of Jacub Dvorak with an address, "341 Melrose Avenue." Asked what his grounds for arrest were, P.C. Chan stated: (1) the accident; (2) he left the scene; (3) the female driver said he was "uneasy on his feet and could have been drinking;" (4) there was damage to the front of his car and he made a three-point turn; (5) he advised he left the accident because he was getting tired; (6) there was an odour of alcohol on his breath; (7) his eyes were bloodshot.
[7] Under cross-examination, P.C. Chan advised that he had made notes on a "dashpad" in the cruiser and agreed that in not making the notes in his notebook and in destroying the "dashpad" notes he had committed two offences under the Police Services Act. He further agreed that in making notes on a "big piece of cardboard" at the station and destroying those notes he had committed two more offences under the Police Services Act. P.C. Chan agreed that the defendant's driving, speech, dexterity, walking, balance sitting and standing at the scene and later at the station were all normal. "Everything about him was normal physically at the scene? He replied, "Yes." He agreed that his reference to, "fresh damage to the front left part of the vehicle," was not something he was told over the radio and stated it was "probably from my observations." He agreed that his note of "fresh damage to the front of the vehicle …" as having been received over the radio was false and another offence under the Police Services Act. He was asked, "At the time of the arrest, you did not know who rear-ended whom? He replied, "Correct." He further agreed that the note in his notebook, "driver's licence was confirmed by female as Jacub Dvorak" was incorrect and that he never heard the female confirm the name Dvorak. He accepted that the incorrect entry was another offence under the P.S.A. Further, P.C. Chan could not explain why he did not advise the breath technician about (Dvorak's) bloodshot eyes. He stated he prepared his notes sometime after 9:45 p.m.
Analysis
(a) Legal Principles to be Applied
[8] I have read and considered all of the authorities submitted by counsel even if I do not refer to each judgment in this decision. The fundamental principle to be considered in determining reasonable grounds is discussed in R. v. Storrey, [1990] 1 S.C.R. 241 at p. 249 – 250:
The importance of this requirement to citizens of a democracy is self-evident. Yet society also needs protection from crime. This need requires that there be a reasonable balance achieved between the individual's right to liberty and the need for society to be protected from crime.
[9] Any analysis of reasonable grounds must begin with an approach to the issues articulated in R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 at paras. 37, 38, 47 and 48:
[37] Between suspicion and proof beyond a reasonable doubt lie reasonable and probable grounds. Section 254(3) of the Criminal Code authorizes peace officers to demand Intoxilyzer breath samples provided the officer "has reasonable 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] 2 S.C.R. 527, [2009] S.C.J. No. 35, 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, [1994] S.C.J. No. 87, at para. 51. The officer's belief must be supported by objective facts: R. v. Berlinski, [2001] O.J. No. 377, 9 M.V.R. (4th) 67 (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, [1990] S.C.J. No. 12, at p. 250 S.C.R.
[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. Impairment may be established where the prosecution proves any degree of impairment from slight to great: R. v. Stellato (1993), 12 O.R. (3d) 90, [1993] O.J. No. 18 (C.A.), affd (1994), 18 O.R. (3d) 800, [1994] 2 S.C.R. 478, [1994] S.C.J. No. 51. 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, reaction or response time, judgment and regard for the rules of the road: Censoni, at para. 47.
[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…
[10] In making his or her determination as to whether reasonable grounds exist, the totality of the circumstance must be considered, and it is improper to dissect the officer's grounds looking at each in isolation: Bush, supra, paras. 54, 55. Consumption plus an unexplained accident may generate reasonable and proper grounds although that may not always be the case: Bush, para. 54. An assessment of whether grounds exist does not involve the application of a test that is the equivalent of an impaired driving scorecard with a list of all the usual indicia and a tally of which are present and which are not; the absence of some indicia that are often found in impaired drivers does not undermine a finding of reasonable and probable grounds based on the observed indicia and available information: Bush, para. 56. Further, the trial judge is entitled to take into account the experience and training of the arresting officer in assessing whether he objectively had reasonable and probable grounds. In addition, in determining whether reasonable and probable grounds exist, the officer is entitled to rely on hearsay: Bush, para. 61. Equally, the important fact is not whether the officer's belief was accurate. It is whether it was reasonable at the time of arrest. That the conclusion was drawn from hearsay, incomplete sources, or contained assumptions will not result in its rejection based on facts that emerge later. What must be assessed are the facts as understood by the peace officer when the belief was formed: Bush, para. 66. In other words, the officer is entitled to be mistaken as to the facts and the grounds relied on are not limited to those matters which are provable in court: R. v. Censoni [2001] O.J. No. 5189 (Sup. Ct.).
[11] Further points to be made are that pre-Charter roadside statements can form part of the reasonable grounds as long as they are not being used to address the defendant's credibility: R. v. Brown [2014] O.J. No. 1021 (Sup. Ct.). As well, it has often been said that the reasonable and probable standard is not an onerous test; neither must it be so diluted as to threaten individual freedom: Brown, para. 39. Finally, in a footnote in R. v. Brown, supra, page 11, Durno J. states that to the extent that [other judgments] "hold or imply that the absence of a notebook entry precludes reliance on the evidence or that there is a duty on police officers to include all evidence in their notebooks, I respectfully disagree."
(b) R & PG to Arrest and Make a Breath Demand
[12] Mr. Rosenthal forcefully argues that the investigative performance of the arresting officer in this case was deplorable and that I should conclude his evidence is entitled to little or no credibility as a result of his destruction of two forms of preliminary notes in violation of police policy, and his false notation of radio reports of "fresh damage" to the front of the vehicle that left the scene and the fact he was incorrect in his notation that the female driver confirmed the other driver's name as Dvorak from his driver's licence. Counsel submits that on the basis of the foregoing as well as the fact that all other potential indicia of impairment at the point of arrest are normal with the exception of the smell of alcohol and bloodshot eyes, I cannot have any confidence in the officer's evidence - particularly on a balance of probability standard - that he had the requisite reasonable and probable grounds. He contends that the odour of alcohol, bloodshot eyes and an earlier collision cannot constitute reasonable and probable grounds for an arrest and Intoxilizer demand.
[13] I am entitled to believe all, part or none of a witness' evidence. One must readily acknowledge problems with the evidence of both Linda Dacunha and P.C. Chan. Ms. Dacunha testified she thought the accident occurred at about 5:30 p.m. based on her usual time of leaving work. She describes a brief interaction with the other driver after which she called 911. P.C. Chan was notified at 7:38 p.m. that there had been a two-car rear-end accident at 401 and Dufferin Street. It is inconceivable that Ms. Dacunha waited more than two hours to call 911. It is equally unlikely that the other driver waited at the scene for over two hours. I do accept her testimony that she advised 911 dispatch that she had been "hit by a car" on the 401 highway, that she was pregnant and that she noticed the other driver "stumbling back to his car" and after he opened the door of her vehicle asking for his documents, he left the scene with her still in possession of his insurance and ownership documents. She stated his behaviour, "freaked me out" and that lead to her calling 911. By all accounts, this was the type of accident that reasonable drivers would have dealt with by following each other to the Reporting Centre. Having decided to call 911 on account of his actions, it is highly unlikely that Ms. Dacunha would have failed to describe a rear-end collision on the 401 highway and a second driver who was having difficulty walking and who left the scene leaving his documents behind. As well, it is highly unlikely that the 911 dispatcher would have failed to forward this basic information to O.P.P. officers in the area.
[14] P.C. Chan could be said to have suffered a number of deficiencies in performance if we are to apply a standard of perfection. The reality is that his investigation was almost entirely conducted from a vehicle and while on foot, positions that are hardly conducive to careful note-taking. In my view he was somewhat hasty in agreeing he had committed approximately six offences under the Police Services Act. The challenge he faced was – how to maintain an accurate set of investigative notes while almost continuously in motion? When he finally had a chance to prepare his notes it was more than two hours after the investigation (after 9:45 p.m.) having transported the defendant to the detachment, making arrangements for the implementation of his right to counsel and then assisting in the movement of the defendant to and from the breath technician's office. Having failed to preserve his rough notes it is not possible to know what he relied on to set out the details of the investigation in his notebook. And it has been made clear that there were at least two mistakes in his notebook about what was told to him by the 911 dispatcher. Still, I find that he accurately recorded the time of his first dispatch in this investigation (7:38 p.m.) and the name, address and description of the party who left the scene. The fact is - the defendant Mr. Dvorak generally met the description of the male who left the scene (white male, beard, white tanktop, Gold Nissan vehicle, lic. plate BNNY853) and this male and his vehicle were observed at the very address listed on the car's registration.
[15] Notwithstanding any deficiencies in his note-taking, there is little doubt P.C. Chan located the same individual who left the accident scene.
[16] Essentially, the first question to ask is: what was the officer told by OPP dispatch at 7:38 p.m. and thereafter and what did he observe at 8:05 p.m.? I am satisfied that he received certain basic information from O.P.P dispatch starting at 7:38 p.m. and that notwithstanding what he wrote in his notebook later, as a 20-year veteran of the force, he would likely have been able to remember these basic facts of the case for 27 minutes to 8:05 p.m. when he observed Mr. Dvorak in his vehicle. I am satisfied he received the following basic information about the case: there was a rear-end collision, a second driver who was having difficulty walking and who left the scene of the accident. In addition, at about 8:05 p.m. he noticed fresh damage to the front of Mr. Dvorak's car, the same car reported to have been in the collision and upon opening the driver's door, he noticed the driver's eyes were bloodshot and there was a heavy odour of alcohol on his breath. The second question to ask is: did those elements in combination, collectively add up to reasonable and probable grounds to arrest for impaired driving and make an Intoxilizer demand?
[17] I pause to note that the defence position is that when the Court excises grounds referred to by the officer that are not credible, what are left – a heavy odour of alcohol, bloodshot eyes, and an unexplained accident – are clearly insufficient to constitute reasonable grounds to arrest. It is argued that (ground no. 2) the fact the defendant left the scene is meaningless without knowing how long he stayed. Secondly, (ground no. 3) there is no indication the officer heard the female driver say the defendant was "uneasy on his feet and had been drinking." Third, (ground no. 4) the female driver had not seen any damage to the car that collided with her car. Fourth, (ground no. 4) the three-point turn was performed properly. Fifth, (ground no. 5) the statement purportedly given before his right to counsel as to why he left the accident, (I was getting tired) is of dubious admissibility and meaningless: almost everyone would become tired after 45 minutes to one hour of waiting at the scene.
[18] Having considered these points very carefully, I have reached the following conclusions:
(1) First, there is no rule to the effect that a heavy odour of alcohol, bloodshot eyes and an accident cannot constitute reasonable grounds to arrest for impaired driving;
(2) In any event, P.C. Chan testified that his grounds to arrest Mr. Dvorak were: (1) the accident; (2) he left the scene; (3) the female driver said he was "uneasy on his feet and could have been drinking;" (4) there was damage to the front of his car and he made a three-point turn; (5) he advised he left the accident because he was getting tired; (6) there was an odour of alcohol on his breath; (7) his eyes were bloodshot. In my view, P.C. Chan has attempted to reconstruct what was in his mind at the time of arrest some time after the event and has included a number of neutral factors that have no bearing on grounds to arrest such as "damage to the front of his car and he made a three-point turn" and "he advised he left the accident because he was getting tired." As well, I do not accept that P.C. Chan heard the female driver report that the male who left the scene was "uneasy on his feet," a puzzling expression, particularly given the fact he has admitted he did not actually hear the female driver describe the event to 911 dispatch personnel.
(3) Notwithstanding the above concerns, I am prepared to accept some of the officer's evidence as to grounds to arrest. It seems to me that a common sense practical approach must be taken as to the reasonable inferences the officer was entitled to draw and in assessing whether reasonable grounds exist. As noted above, P.C. Chan was in his vehicle and on foot for most of the period during which he acquired the grounds he relied on to make an arrest. Some deference should be paid to these practicalities of the investigation and to inferences drawn by a 20 year OPP veteran based on his training and experience.
(4) It seems to me that reasonable conclusions may be arrived at as to what P.C. Chan heard and observed between 7:38 and 8:05 p.m. September 27th, 2014 and those conclusions are the following: (1) he was advised there was a rear-end collision; (2) he was advised there was a second driver who was having difficulty walking; (3) he was advised the second driver left the scene of the accident; (4) the second driver was observed at an address in Toronto based on the description and license plate number provided and that person had bloodshot eyes; and (5) a heavy smell of alcohol on his breath.
(5) Further, in determining whether reasonable and probable grounds exist, I note that an officer is entitled to rely on hearsay, incomplete sources, and incorrect assumptions that do not stand up based on facts that emerge later such as the belief that Mr. Dvorak failed to remain at the scene. What must be assessed are the facts as understood by the peace officer when the belief was formed: Bush, para. 66; R. v. Censoni [2001] O.J. No. 5189 (Sup. Ct.).
(6) Considering the totality of the circumstances I have concluded that P.C. Chan held an honest, subjective belief that there were reasonable grounds and objectively speaking, a reasonable person placed in the position of the officer would be able to conclude there were reasonable and probable grounds to believe that Mr. Dvorak's ability to drive was at least slightly impaired by the consumption of alcohol as a result of the five grounds noted above. These five grounds constitute compelling and credible information that provides an objective basis, in other words, objectively discernible facts, for drawing inferences as to the existence of factual circumstances as to impaired ability to operate a motor vehicle: see R. v. Amare, 2014 ONSC 4119, at para. 83 (4) to (11) (affd 2015 ONCA 673).
[19] In determining that I was prepared to accept some of P.C. Chan's evidence I do not wish to be seen as endorsing the state of his notes, the destruction of his rough notes, the inaccuracies in his note-taking and the deficiencies and omissions in his notebook. As has often been stated, the necessity of accurate, comprehensive and contemporaneous note-taking is essential to the policing function: Wood v. Shaeffer, 2013 SCC 71, 2013 S.C.C. 71. Still, it seems to me the context is all-important. I agree with the following comments in R. v. Gill 2015 ONSC 7872 (Sup. Ct.):
[45]…. as a general rule, perceived, acknowledged or found deficiencies or omissions from a police officer's notes relating to a particular transaction may, or may not, hold any significance depending on specific factual context. An absent note may impact on the weight to be afforded an officer's evidence. Automatic rejection of the officer's evidence as a discipline sanction is inappropriate.
[20] The deficiencies and inaccuracies in an officer's notebook, just like the evidence of any other witness, should be dealt with on a case-by-case basis. I have made allowances for the fact that the officer was in his vehicle and on foot during most of his investigation and therefore the state of his notes is not necessarily determinative of his reliability on the most relevant issues. I realize the "as soon as practicable" rule tends to relegate the note-taking function to the end of the investigation in drinking/driving cases and results in an officer attempting to recall his grounds for arrest hours later. It must be stressed that in any interaction in which a peace officer purports to deprive a citizen of his or her freedom, even temporarily, that officer must be able to accurately record the grounds for arrest or detention or risk having the results of the investigation excluded from evidence. In the instant case, the report of Mr. Dvorak leaving the scene of the accident, and having difficulty walking (notwithstanding P.C. Chan's incorrect note of him being "uneasy on his feet") coupled with a heavy odour of alcohol on his breath at his home, could well have supported reasonable grounds, without more, to arrest Mr. Dvorak for impaired operation and make a breath demand. In my view there was ample evidence of reasonable grounds to arrest the defendant/Applicant.
[21] On the basis of the foregoing, I have determined that there has been no violation of the defendant/Applicant's section 8, 9 Charter rights and accordingly, it will not be necessary to consider the section 24(1) application for exclusion of evidence. The Application is therefore dismissed.
P. Harris J.
March 24, 2016