Court File and Parties

Court File No.: Central East - Newmarket 15-06868 Date: 2016-04-04 Ontario Court of Justice

Between: Her Majesty the Queen — and — Ryan Oliveira

Before: Justice P.N. Bourque

Counsel:

• B. McCallion, for the Crown
• A. Pazuki, for the defendant, Ryan Oliveira

Heard: In Writing

Reasons for Judgment

Released on April 4, 2016

Overview

[1] The defendant is charged with impaired driving and driving with excess alcohol in the early morning hours of August 25, 2015.

Crown's Case

Darren Kinney

[2] Darren Kinney has worked for 20 years on the roads for the Town of Aurora. In the early morning hours of August 15, 2015, he was proceeding eastbound on Aurora Road and had passed Leslie Street. He saw a burgundy pickup truck in front of him. It crossed over the centre line and drove through a construction area in the westbound lane. He crossed the 404 and then went over onto the right gravel shoulder and then went back fully into the west lane and then back onto the gravel shoulder. He turned left onto Woodbine and another two times, he went into the left lane and then back onto the gravel shoulder of road. He said that at one point, he almost hit a minivan coming southbound.

[3] He called 911 and two police cars came up and stopped the Burgundy pickup at Davis Drive. He waited in the gas station and watched and then gave a statement to the police. He identified the defendant in court as the driver of the vehicle.

[4] He was cross-examined about a statement he gave to the police. In his statement, he mentioned that he did not get a good look at the defendant and said his hair was curly. (the defendant's hair in court is straight). He also said that the movement of the truck was back and forth some five times. He did not mention to the police officer in his statement about almost hitting the minivan.

Benjamin Williston

[5] Benjamin Williston is a York Regional Police officer of some five years' experience. He responded to a dispatch at 00:22 hours, which spoke of a possible impaired driver on Woodbine Avenue. He attended at 00:25 and came up behind the defendant's vehicle which was stopped at the light. Another officer stopped her vehicle in front.

[6] He went up to the driver's door and smelled alcohol from the driver. In response to a question, the driver denied having anything to drink. The officer asked him to step out of the vehicle. A cell phone on his lap fell to the ground and the defendant moved slowly to pick it up. The officer was going to make an ASD demand and began to walk the defendant back to his cruiser, when he noticed that the defendant was unsteady on his feet and he had a stronger smell of alcohol.

[7] The officer believed he had reasonable and probable grounds to arrest the defendant for impaired driving and did so at 00:27. He put him into his cruiser and at 00:29, provided the caution and rights to counsel. He read the breath demand.

[8] He left for the station at 00:35 and arrived at 1 District at 00:46. The defendant was paraded and then put in a cell. He called duty counsel and at 01:17 he took the defendant to the telephone room. The defendant spoke to duty counsel until 01:21. The officer took him to the breath technician. During the walk from the cell to the telephone room, the officer said that the defendant was unsteady on his feet. I watched the video, (Exhibit 1) and clearly at one point, the defendant took another step to his right. He did not walk straight down the hall.

Yukmo Chon

[9] Yukmo Chon is a York Regional Police officer of 10 years' experience and is a breath technician. He received the defendant into his custody at 01:21 and performed the first breath sample at 01:25, which returned a reading of 140 milligrams of alcohol in 100 millilitres of blood. The second sample was taken at 01:47 with a reading of 136 milligrams of alcohol in 100 millilitres of blood.

[10] While the defendant was there, the officer noticed that he was shaking and had his head down as if sleeping. The officer did not notice any abnormal walking or any observations about eyes or slurring of speech. He noticed the smell of alcohol.

Defence

Ryan Oliveira

[11] Ryan Oliveira is a young man of 24 years of age and works at a Swiss Chalet. After work, he went with a friend to an adult entertainment establishment and while there, he stated that he had three, and only three beers. He and his friend were there for only 45 minutes. He then took his friend home (he lived in Aurora) and then he began to drive home by himself to his home in Keswick. He was intending to take the 404 highway. He describes the weather as wet and rainy.

[12] He stated that he drove from Yonge Street in Aurora along Wellington Street, past Leslie Street and was going to get onto the 404. He stated that there was construction and somehow (he does not remember how) he got onto the wrong side of Wellington Street.

[13] He said that he knew this area but could not find the entrance to the 404 northbound. It was his evidence that the entrance was blocked. I think it more likely that being on the wrong side of the road (with construction pylons or medians in the middle) which caused him to not be able to locate the entrance ramp.

[14] He then proceeded east along Aurora Road and he stated that he then went north. He stated that he began to text his friend and he may have been swerving on the road. He does not remember any van swerving to avoid him in the southbound lane.

[15] He states that when he was stopped, he was nervous and that is why he dropped his phone. He denies that he walked in any unsteady way. He states that at the station, he fell asleep in the cells. He does not attribute any of this sleepiness to impairment but only that it was late. It was pointed out by the Crown that it was his first arrest and it seems unlikely that in that situation, he would immediately fall asleep on a hard surface. He denied that. He stated that the unsteady walk from the cell is attributed to his tiredness and the fact he did not know where he was going.

[16] He denied falling asleep in the breath room. He states that he was not in any impaired by alcohol.

Legal Analysis

Did the officer have reasonable and probable grounds to arrest the defendant for impaired driving and make the breath demand?

[17] As stated in R. v. Censoni, [2001] O.J. No. 5189, and other cases:

…it must not be forgotten that reasonable grounds as to impairment to drive is essentially an opinion. As such, the belief, based on perceived facts, is frequently a compilation of a state of facts that are too subtle and complicated to be narrated separately and distinctly...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.

[18] It is the totality of the circumstances which must be considered in determining whether an officer had reasonable and probable grounds to make the breath demand: see R. v. Shepherd, 2009 SCC 35.

[19] With regard to the evidence that a police officer may consider in forming his grounds for arrest, third party information may be considered by the officer. It is not whether the peace officer's belief as a predicate of the demand, was accurate or not, it is whether it was reasonable. That it was drawn from hearsay, incomplete sources, or that it contains assumptions will not result in its legal rejection by resort to facts which emerged later. What must be measured are the facts as understood by the peace officer when the belief was formed. R. v. Musurichan, [1990] A.J. No. 418.

[20] The following information was known to the police officer when he made his determination of his reasonable and probable grounds to arrest and make the breath demand:

(i) there was a call in of a suspected impaired driver with the statement that 'the vehicle was all over the road and had gone on and off the road and was travelling 70 in an 80 and was hitting the brakes for no reason and it hit the shoulder";

(ii) the defendant had a smell of alcohol;

(iii) the defendant dropped his cell phone on the ground when getting out of the car and was slow to pick it up;

(iv) the defendant "appeared unsteady on his feet".

[21] The officer admitted that just before he had the additional information that the defendant was unsteady on his feet, it was his intention to make an ASD demand. However he changed his mind when he saw the unsteadiness of the defendant.

[22] As I view all of these factors which the officer was entitled to take into account and mindful of the test enumerated above, I believe that the officer did have sufficient objective grounds to make the arrest for impaired driving and then make the breath demand.

[23] Even if I was not so convinced, I will perform an analysis in R. v. Grant, 2009 SCC 32, to determine whether I would have excluded the evidence.

[24] On the first ground (the seriousness of the Charter infringing conduct), I find that it is not serious. The officer gave his evidence in a straightforward manner. He was not challenged on his note taking abilities. He made a judgment call on the factors known to him at the time. I do not believe that he was "jumping the gun" in any way or did not undertake the ASD for any improper reason.

[25] On the second ground (the impact of the breach upon the charter-protected interests of the accused), I am mindful of the statement in Grant, that breath tests are minimally intrusive and are reliable evidence. While the defendant was subject to arrest and had to provide a sample at the station, which ultimately took several hours to complete and process, the process was straightforward and his rights to counsel and other protections were observed at all times by the officers.

[26] On the third ground (society's right to have cases adjudicated on the merits), I find that there is a strong interest in dealing with drinking and driving cases, especially where there is evidence of objectively bad driving. While this is not the most serious of cases, and while the readings do enter the aggravating category, drinking and driving offences are all serious.

[27] Based upon all of the above. I believe that if there were a breach that the effect upon the administration of justice would favour admission rather than exclusion.

Has the Crown proven beyond a reasonable doubt that the defendant was impaired by alcohol?

[28] The test for impairment is set out in R. v. Stellato, [1994] 2 S.C.R. 478, and other cases, and it provides that to find the defendant guilty of impaired driving, I must be satisfied beyond a reasonable doubt that the defendant was impaired in any degree by the consumption of alcohol.

[29] In applying the burden of proof, I must assess the evidence of the defendant in light of the decision in R. v. W.D. and thus, if I accept his evidence (that he only drank three beers and was not impaired), I must acquit him of the charge. Even if I don't accept his evidence, I must ask if it leaves me with a reasonable doubt, and then if I am not in doubt by his evidence, does the evidence I do accept leave me without doubt about his guilt.

[30] For many reasons, I cannot accept the evidence of the defendant. If I am to believe him, I must accept that it was not unusual that he would drive for a period of time on the wrong side of the road. I agree that it was a construction site, but there was no evidence that it was not sufficiently marked and the driver following had no difficulty staying on the proper side of the road. I am also not convinced that his explanation for driving off the road and then into the opposing lane is caused by his texting. Even if I accept that he was texting, it does not necessarily follow that it caused him to drive in that fashion. Texting leads to distraction and not necessarily to "driving on and off the road".

[31] I must also weigh his evidence against the evidence of the station video. I believe that his unsteadiness in his walk to the telephone room was real and significant movement. He was following the police officer. He was walking down a straight and well lit corridor. There was no need for that movement except for the obvious reason, that is he was unsteady on his feet from the consumption of alcohol. I must also weigh it against the other symptom noted on the video, and that is the sleeping. The investigation was proceeding promptly. He was not in the cell for hours. I find that in these circumstances, his need to sleep is also attributable to his consumption of alcohol.

[32] I find that I cannot accept his evidence and in rejecting it, I am not left in doubt by it.

[33] In this case I have the evidence of the civilian witness who describes several instances of bad driving including:

(i) driving on the wrong side of the road for a period of time;

(ii) the vehicle moving completely onto the shoulder of the road some 4 times and then moving over into the opposing lane some four times; and,

(iii) the vehicle almost striking a vehicle in the opposing lane and the other vehicle having to take evasive action.

[34] In assessing his evidence, I am aware that there are some differences between his statement to the police and his evidence in court. The essential thrust of his evidence however remained the same and several portions of his observations (driving in the westbound lane on Aurora Road and weaving off the road and into the opposing lane on several occasions) was largely confirmed by the evidence of the defendant.

[35] I have the evidence of the arresting officer, and as noted above, the fact that I can see for myself his unsteadiness at the police station.

Conclusion

[36] Taking all of these factors into account, I find that the Crown has proven beyond a reasonable doubt that the defendant's ability to operate a motor vehicle was impaired to some degree by the consumption of alcohol.

[37] I also find that the Crown has proven beyond a reasonable doubt that at the time of driving, the defendant had a blood alcohol level of 130 milligrams of alcohol in 100 millilitres of blood.

Signed: "Justice P.N. Bourque"

Released: April 4, 2016