Court File and Parties

Ontario Court of Justice

Date: 2016-04-28

Court File No.: Halton 13-3480

Between:

Her Majesty the Queen

— and —

Allen Taylor

Before: Justice D.A. Harris

Heard on: May 26, 2015, January 5, 2016 and February 26, 2016

Reasons for Judgment released on: April 28, 2016

Counsel:

Sean Bradley, for the Crown

A. Gold, for the defendant Allen Taylor

HARRIS J.:

INTRODUCTION

[1] Allen Taylor is charged with operating a motor vehicle in the City of Burlington on November 1, 2013 when (1) his ability to operate a motor vehicle was impaired by alcohol, and (2) his blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of his blood.

[2] Crown counsel elected to proceed summarily.

[3] Mr. Taylor pled not guilty and a trial was held.

[4] Mr. Taylor had applied for an order that all evidence of the results of any Intoxilyzer tests should be excluded pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms.

[5] Counsel agreed that we should proceed with a "blended" hearing in which all of the evidence would be applicable to both the Charter application and to the trial.

[6] Jeremy Perrin, Evyn Dilraj Dhaliwal, Halton Regional Police Constable Torry Wentzell and Provincial Police Constables Robert Conant and Rob Crossfield testified for the Crown. Mr. Taylor testified with respect to the Charter application. No evidence was led by the defence with respect to the trial itself.

[7] There is no issue that Mr. Taylor was operating his motor vehicle in Burlington on November 1, 2013 or that the two Intoxilyzer tests showed results of 161 and 143 milligrams of alcohol in 100 millilitres of his blood.

[8] The issues before me are:

1. whether the breath results referred to above should be excluded pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms; and

2. whether the Crown had proven beyond a reasonable doubt that Mr. Taylor's ability to operate a motor vehicle was impaired by alcohol.

[9] More particularly with respect to the Charter application, counsel for Mr. Taylor argued that the evidence should be excluded on the basis that:

1. the police did not have the reasonable and probable grounds necessary to make the breath demand, violating Mr. Taylor's right to be secure against unreasonable search and seizure as guaranteed by section 8 of the Charter, and his right not to be arbitrarily detained as guaranteed by section 9; and

2. the police did not inform Mr. Taylor promptly of the reasons for his detention as required by section 10(a) of the Charter; and

3. the police infringed his right to retain and instruct counsel without delay and to be informed of that right, as required by section 10(b) of the Charter.

[10] I will deal with the Charter application first.

REASONABLE AND PROBABLE GROUNDS

[11] Sections 8 and 9 of the Canadian Charter of Rights and Freedoms provide that:

8. Everyone has the right to be secure against unreasonable search or seizure.

9. Everyone has the right not to be arbitrarily detained or imprisoned.

[12] In most cases, an accused bears the burden of persuading the court on a balance of probabilities that his or her Charter rights have been infringed, but in the section 8 context, once the accused has demonstrated that the search or seizure was a warrantless one, the burden of persuasion shifts to the Crown to show that on a balance of probabilities the search or a seizure was reasonable. To demonstrate compliance with s.254(3) of the Criminal Code the Crown must show that the police officer making the breath demand had the necessary reasonable and probable grounds to do so.

[13] In this case then, the onus is on Mr. Taylor to establish an infringement of his section 9 rights but the onus is on the Crown with respect to the section 8 rights. I have accordingly approached this alleged violation of rights as one where the Crown bears the onus.

[14] The legal test for reasonable and probable grounds is not a high one. It is more than a mere suspicion, and less onerous than a prima facie standard.

[15] It is a fact based analysis of the totality of the circumstances the arresting officer had in mind. The officer is entitled to disbelieve any evidence and to disregard any evidence disbelieved. However, the officer must balance any circumstance detracting from the conclusion of impairment to those suggestive of impairment, and the totality of circumstances must be sufficient that a reasonable person in the position of the arresting officer would be able to conclude that reasonable and probable grounds existed.

[16] The grounds need only amount to evidence of slight impairment by alcohol as opposed to gross impairment. There is no minimum time for the investigation, nor any mandatory minimum number of circumstances in order to amount to an objective review.

[17] In this case, Constable Conant testified that he received a radio call about a potential impaired driver. He heard that the vehicle was driving at inconsistent speeds on the QEW. It was weaving and drove onto the shoulder of the road. Follow up reports indicated that the vehicle was making constant lane changes and almost side swiped another vehicle. Eventually, the vehicle turned into a mall parking lot where the driver was apparently trying to lose the informant who was following him in a tow truck.

[18] Constable Conant then arrived in that parking lot and observed the vehicle circle a number of parked vehicles for an unknown reason. He did see the tow truck driving behind it.

[19] Mr. Taylor testified that he may have been driving badly while on the highway but that this was because he was texting while driving.

[20] This was not known by Constable Conant, however, when he formed his opinion and would not have impacted his decision. Nor should it have. Yes, he might surmise that Mr. Taylor might have been texting. He might also surmise that Mr. Taylor might have been ill or might have simply been a bad driver. He might also surmise that Mr. Taylor was driving badly because his ability to operate a motor vehicle was impaired by alcohol. All of that however is only surmise on his part. Further, Constable Conant should not have considered that, or any other factor, in isolation. His duty was to consider the entire constellation of factors known to him in forming his opinion.

[21] Mr. Taylor also testified that he drove into the mall parking lot because he was in fear of the intentions of the driver who was obviously following him. He was particularly concerned about this because of past experiences in the 1980's when he was driving in the U.S. regularly. At that time, there was a series of carjackings which began with the carjackers rear-ending the target vehicle and then hijacking it when its driver pulled over and stopped. This had happened to Mr. Taylor himself.

[22] I note certain problems with this explanation. These events occurred approximately 30 years earlier in a different country and the most-targeted vehicles were often ones from out of state. Nothing like this had ever happened to Mr. Taylor in Ontario, although to be fair, he had also never been followed this closely and for this long either. Further, in this case, he was being followed for the most part along fairly major city streets rather than the highway. If the tow truck had not rammed him on the highway, why would he do so on the city streets where witnesses would more likely be present.

[23] The most important consideration however is again the fact that Constable Conant was not aware of this past history and could not have taken it into account in forming his opinion. When he asked Mr. Taylor why he was in the parking lot, Mr. Taylor replied, "That tow truck was chasing me." The circumstances were such that Mr. Taylor might have been nervous or even frightened by the tow truck following him, but it was also open to Constable Conant to question why, if that was the case, Mr. Taylor did not call the police on his cell phone or pull into a busy gas station rather than entering a mall parking lot (which Mr. Taylor described as "not very busy") and driving around in what appeared to be an aimless fashion. Constable Conant did not ask those questions. He did however state to Mr. Taylor that he was being followed due to his drinking.

[24] Again, I am satisfied that Constable Conant considered this behaviour as being just one of the factors that went into his final opinion and that it was appropriate for him to do so.

[25] Constable Conant testified that he asked Mr. Taylor if he had been drinking and that Mr. Taylor answered 'no" but when pressed stated "well maybe two". When asked what he had been drinking he replied, "Some wine and a martini". He later specified two to three glasses of wine which he then changed to "Well maybe four".

[26] Constable Conant smelled the odour of an alcoholic beverage on the breath of Mr. Taylor.

[27] He noted that Mr. Taylor stuttered slightly while speaking.

[28] He had red glossy eyes.

[29] Constable Conant demanded that he provide his driver's licence, ownership and proof of insurance. Mr. Taylor pulled out his wallet, flipped through it and then placed it on the seat to his right. He looked around, grabbed the wallet and again flipped through it before putting it back down. When asked if he had any luck, he replied, "I'm looking". He appeared frustrated. When asked what he was doing, he replied, "Looking for it". Constable Conant told him it was not necessary, but Mr. Taylor replied, "No, I am still looking for it". He got out of his car, and began to look in the back seat on the driver's side. He said, "I know it's here. It's in my phone case". Constable Conant observed a phone case on the front passenger seat. He told Mr. Taylor that it was not important and directed him to go sit in the police car. Despite repeated instructions to do this, Mr. Taylor continued to look in his car, and said he was "Going to look for it".

[30] Throughout this exchange, Constable Conant noted that Mr. Taylor was slurring his speech slightly and that some words ran into each other.

[31] Following that, he formed reasonable grounds to believe that Mr. Taylor's ability to operate a motor vehicle was impaired by alcohol.

[32] Constable Conant subsequently retrieved the phone case from the car and located Mr. Taylor's documents in it.

[33] Mr. Taylor testified that his documents were in the cell phone case. The case was made of black leather as were the seats in his car. The interior lights in his car were programmed such that they did not come on automatically when the door was opened. He knew the case was there and so he continued to look for it when he did not find it.

[34] In his submissions, counsel for Mr. Taylor pointed out that while testifying before me, Mr. Taylor presented as a very fastidious person, the kind who would not stop looking for his phone until he found it. I agree completely with this observation. I note again however that Constable Conant did not have the benefit of such observations at the time that he formed his opinion.

[35] Counsel for Mr. Taylor argued that Constable Conant was an unreliable witness. He reversed the locations of the two nearby restaurants, placing Turtle Jacks on the side of the mall entrance where Earls is actually located. He did not recall how many Ontario Provincial Police vehicles were on the scene. He did not have detailed notes about certain matters and some of his observations were not shared by other officers who dealt with Mr. Taylor.

[36] I disagree with this submission.

[37] I place little weight on the error as to the respective locations of the two nearby restaurants or the total number of Ontario Provincial Police vehicles present. Constable Conant was concentrating on Mr. Taylor and to a lesser extent on the only other officer (Constable Crossfield) who also became directly involved with Mr. Taylor.

[38] I also read nothing significant into different observations made by different police officers. Constable Wentzell made his observations some time later at the police station. He did not note an odour of alcohol on Mr. Taylor's breath but he did see a flushed face and red rimmed eyes.

[39] Constable Crosswell's observations were more proximate both in time and place but were not so different from those of Constable Conant to cause me any concern. He did not refer at any time to red glossy eyes nor to slurred speech but neither did he say otherwise. He simply made no reference at all to this. In his evidence he referred primarily to who was where and what they did. He was never asked and he never referred to Mr. Taylor's eyes or his speech.

[40] Mr. Taylor certainly disagreed with Constable Conant on many key points. I did not however believe Mr. Taylor. I will say more about that later in my reasons.

[41] Constable Conant relied upon the following factors in forming his opinion:

1. Two civilians had complained of very bad driving, including weaving between lanes;

2. There was an ever-evolving admission of consumption of alcohol;

3. There was an odour of an alcoholic beverage coming from his breath;

4. He had red glossy eyes;

5. He stuttered slightly and later slurred his words slightly;

6. He was slow to answer questions put to him;

7. He looked through his wallet several times looking for documents which were in his phone case;

8. He failed to find the phone case although Constable Conant could see it clearly once he knew what Mr. Taylor was looking for.

[42] These factors should not be excluded from consideration just because alternate explanations might be advanced to explain some of them. Constable Conant correctly took all of these factors into account collectively in forming his opinion.

[43] I am satisfied on a balance of probabilities that Constable Conant subjectively believed, on reasonable and probable grounds that Mr. Taylor had been operating his motor vehicle within the previous three hours while his ability to operate that motor vehicle was impaired by alcohol. I am further satisfied that his belief was objectively reasonable.

SECTION 10(a) AND (b) OF THE CHARTER

[44] Section 10(a) and (b) of the Canadian Charter of Rights and Freedoms provide that:

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right.

[45] I will first address the law with respect to section 10(a).

[46] While a limitation on s.10 (b) in the context of roadside screening is justified, no similar justification exists in relation to s.10 (a). It in no way interferes with an officer's duties in this context to impose an obligation to advise a person of the reason that he or she has been stopped.

[47] The right to be promptly advised of the reason for one's detention fundamentally rests on the notion that one is not obligated to submit to an arrest or detention if one does not know the reason for it, and secondarily in aid of deciding how to exercise the right to counsel under s.10(b). A detained person still has the right to know why they have been detained, so that they can consider whether they must submit to the detention.

[48] When considering whether there has been a breach of s. 10(a) of the Charter, it is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, which must govern. The question is whether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline to submit to arrest, or alternatively, to undermine his right to counsel under s. 10(b).

[49] Section 10(a) is complied with when the person arrested or detained is informed in substance as to the reason why the restraint is being imposed, or if the circumstances are such that he or she knows why.

[50] In this case, Constable Conant testified that he advised Mr. Taylor in general terms that he was investigating a report of a possible impaired driver. Mr. Taylor expressed surprise that anyone might have thought that about him. Constable Conant then asked Mr. Taylor if he had been drinking and he received the series of answers I described in the previous section of my reasons.

[51] Mr. Taylor testified that Constable Conant asked him, "Do you know why I stopped you?" Mr. Taylor replied, "No" and then Constable Conant asked him if he had been drinking.

[52] Constable Conant testified that once he formed reasonable and probable grounds to believe that Mr. Taylor's ability to operate a motor vehicle was impaired by alcohol, he arrested Mr. Taylor. This included telling Mr. Taylor that he was under arrest. He subsequently read him his right to counsel, caution and breath demand. He read all of these from a standard issue card and received responses from Mr. Taylor. Specifically, when he asked Mr. Taylor if he "wished to call a lawyer now?", Mr. Taylor replied, "No, not right now."

[53] Mr. Taylor testified that he never heard that he was under arrest prior to his arrival in the breath room at the police station. He never heard anyone read his right to counsel or caution, or a breath demand.

[54] I did not believe Mr. Taylor. He was a very unreliable witness. He did not have any prior experience in being arrested and would not know what to be looking for in the information provided by a police officer. He had been drinking and appeared flustered and confused by what was happening. In drinking / driving cases there is a great amount of information provided by a police officer in a very short time. I suspect as well that this information is often provided in a fairly perfunctory fashion. If police officers read information from their cards at the scene in the same fashion that they read from them in court, I suspect that it would be very easy for an uninitiated accused to be uncertain about exactly what was said to him.

[55] Constable Conant on the other hand was a trained police officer. He knew what he had to say to Mr. Taylor and was provided with a card to facilitate his doing this. He was not drinking. He displayed no animus towards Mr. Taylor in court and had no motive to fabricate his evidence on these points. On the other hand he had ample motive to follow procedure as failure to do so could lead to censure by his superior officers. Throw into this mix the fact that there were other officers present who might observe any shortcomings on his part, and he had every reason to follow the required protocols, and he testified that this is what he did.

[56] I note also that the initial conversation between Mr. Taylor and Constable Wentzell, the breath technician, was consistent with what Constable Conant testified to and inconsistent with what Mr. Taylor testified to.

[57] Constable Wentzell started his conversation with Mr. Taylor by saying, "The officer that arrested you today probably read you the same stuff I'm going to but we'll go through it just to make sure we're all on the same page". He then asked Mr. Taylor if he knew why he had been arrested. Mr. Taylor replied that "it was for impaired driving. Is that the reason?" So, Mr. Taylor knew why he had been arrested. The logical explanation for this is that Constable Conant had told him that earlier.

[58] Constable Wentzell asked if he had talked to a lawyer or duty counsel? Mr. Taylor expressed no surprise at this question. He did nothing to suggest that this was a novel idea, that he was unaware that he had a right to do this. He simply said "No". When asked "do you want to speak to a lawyer now?" he answered "not at this time", the same answer he gave when Constable Conant asked him that question.

[59] Again, when Constable Wentzell read him his formal right to counsel, he did not express surprise at learning of these rights for the first time. He did not say that the officer who had arrested him had not read any of this to him. When asked if he understood, he simply replied, "Yes I do".

[60] The obvious explanation for this is that Constable Conant had in fact read those same things to him earlier.

[61] I accept the possibility that Mr. Taylor honestly believes what he said in court. Accordingly, I do not question his credibility. On the other hand, for the reasons set out above, I found him to be an unreliable witness.

[62] Finally, I note that the onus is on Mr. Taylor to prove any infringement of his 10(a) rights on a balance of probabilities.

[63] He has failed to do so. I am satisfied that Constable Conant advised him promptly of the reason why he was stopped and detained and informed him just as promptly of the reason why he was arrested.

[64] I have however, reached a different conclusion with respect to the 10(b) argument.

[65] I am satisfied that Mr. Taylor was properly advised of his right to counsel throughout this investigation.

[66] I am not satisfied however that the police took the reasonable steps necessary to allow Mr. Taylor to exercise that right.

[67] This conclusion must be viewed in context.

[68] When asked, both at the scene by Constable Conant and at the station by Constable Wentzell, whether he wanted 'to call a lawyer now", Mr. Taylor replied, "Not at this time". That is neither an unequivocal nor a final answer.

[69] When Constable Wentzell tried to explain the over 80 offence to him, Mr. Taylor became even more equivocal, saying "So should I … you can't tell me right now if I should have a lawyer if I'm going to be over 80 … I don't think I should be cause I don't feel like I'm over 80".

[70] Constable Wentzell did not respond directly to this. He simply went on to read the standard police caution to Mr. Taylor.

[71] Mr. Taylor then said:

That's fine. I'm not worried about that. I don't think I've had enough to drink to be in that scale, I don't feel like I should be worried about that. So let's just go with it and see.

[72] Again Constable Wentzell did not respond directly to this (other than "yup") but went on to read the secondary caution to Mr. Taylor.

[73] Up until this point, I did not find that Constable Wentzell had done anything that infringed Mr. Taylor's rights. I was very concerned however that this had set the stage for what was to follow.

[74] Mr. Taylor had indirectly asked Constable Wentzell for advice as to whether he should speak to a lawyer. I would not expect Constable Wentzell to give such advice. I would expect him however to expressly tell Mr. Taylor that he could not advise him about that.

[75] Further, Mr. Taylor had stated that he had decided not to call a lawyer because he did not need a lawyer's advice. He also stated that he did not need the lawyer's advice because he was not "over 80". From this, it is a simple and even obvious inference that if he was "over 80" that he would need a lawyer's advice and that he would seek such advice.

[76] That became important after the first breath test was completed. Mr. Taylor asked for the result. Constable Wentzell did not provide that information to him. He suggested that he could not do so until after the second test had also been completed. That however was a falsehood. Constable Wentzell could have provided the information. He simply did not want to as a matter of personal practice. But he did not say that to Mr. Taylor. Rather, as I stated above, he suggested that he could not do so.

[77] So the following is a summary of the situation.

[78] Mr. Taylor had not spoken to a lawyer because he did not think there was any reason for him to do so when he was not "over 80". Following the first test, he asked for the result so that he could discover whether his assumptions were correct.

[79] I have no doubt in my mind that Constable Wentzell knew that Mr. Taylor had blown "over 80" on the first test and that accordingly Mr. Taylor's assumptions were incorrect. Constable Wentzell also knew that in those circumstances, Mr. Taylor would probably change his mind and ask to speak to a lawyer if he were made aware of that fact.

[80] Knowing this, Constable Wentzell did not tell Mr. Taylor what the result was. He did not provide Mr. Taylor with the information needed for Mr. Taylor to make an informed decision with respect to his right to counsel. Instead, he suggested falsely that he could not provide that information to Mr. Taylor.

[81] In these very particular circumstances, I am satisfied on a balance of probabilities that Constable Wentzell infringed Mr. Taylor's right to retain and instruct counsel without delay.

[82] I must therefore now determine whether any evidence should be excluded pursuant to section 24(2) of the Charter.

SECTION 24(2) ANALYSIS

[83] The test set out in R. v. Grant by the Supreme Court of Canada directs me to assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to:

1. the seriousness of the Charter-infringing state conduct,

2. the impact of the breach on the Charter-protected interests of the accused, and

3. society's interest in the adjudication of the case on its merits.

[84] I must balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

[85] With respect to the first factor, the Charter breach here was a serious one. Constable Wentzell deliberately withheld information that Mr. Taylor needed in order to make an informed decision with respect to his right to counsel.

[86] The degree of seriousness of the Charter-infringing conduct here favours exclusion of the evidence.

[87] With respect to the second factor, the ensuing breath test was minimally intrusive both in terms of what took place and the evidence obtained.

[88] In reaching that conclusion, I have taken note of the obiter comments in R. v. Grant, supra that:

While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability. On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted. For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive.

[89] Previously, it often seemed that any infringement of the rights of those accused of drinking and driving would result in the automatic exclusion of the breath results. This passage would appear to indicate that this will not always be the case now.

[90] As for the third factor, the offence is recognized to be a serious one. The societal interest in having a trial on the merits would usually favour admission here.

[91] I must also consider the fact that the evidence which Mr. Taylor seeks to have excluded, is reliable. "Subject to other evidence in any given case, breath samples and their testing by ASDs and intoxilyzers are generally considered reliable evidence." The Intoxilyzer test results are certainly presumptively reliable by virtue of the Criminal Code provisions.

[92] I find then that the truth seeking function would be better served by the admission of the evidence than by its exclusion.

[93] I note however the comments of Duncan J. in R. v. Beattie, where he stated:

Yet the focus must be long term, on the big picture. Viewed in that way, the balance shifts towards favouring exclusion in order to restore the intended public interest/individual liberties balance and underscore the limits of statutory powers that are permitted to encroach upon Charter rights. I conclude, after much anguished consideration, that the long term interests of the administration of justice are better served by exclusion in this case.

[94] In R. v. Mehta, Lipson J. wrote:

Yet it is also true that the overriding purpose of section 24(2) is to maintain the good repute of the administration of justice by both upholding the rule of law and Charter rights. The focus is both on the long-term and the prospective, not on the immediate reaction to admission or exclusion in a particular case. The purpose of section 24(2) is to further the long term interests of society and the justice system.

[95] I recognize that this is the overriding purpose of section 24(2). It is not to punish the police or compensate the accused.

[96] I conclude, however, that the long term interests of the administration of justice are better served by exclusion in this case.

[97] I do note however that only the second breath test took place following the Charter breach. Accordingly, the results of that second breath test will be excluded from evidence.

[98] Without two valid breath samples, neither the presumption of reliability nor the presumption of identity apply. Accordingly there is no evidence to make out the "over 80" offence and that charge is dismissed.

[99] That then leaves the impaired operation charge against Mr. Taylor.

WAS HIS ABILITY TO OPERATE A MOTOR VEHICLE IMPAIRED BY ALCOHOL?

[100] The test with respect to impairment has long been established by our appeal courts in R. v. Stellato, as follows:

In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.

[101] In this case, Jeremy Perrin testified that he was driving at a speed of 120 km/h when Mr. Taylor passed him on the highway. Later, while still travelling at the same speed, Mr. Perrin passed the Taylor vehicle, which then subsequently passed him again. As well as alternately speeding up and slowing down, the Taylor vehicle also moved from the left lane to the centre lane and then to the right lane for no apparent reason. As traffic became heavier, the Taylor vehicle moved in and out of traffic. At one point it drove onto the paved shoulder. Mr. Perrin and his passenger called 911 and provided the licence plate number to the Ontario Provincial Police.

[102] Evyn Dilraj Dhaliwal was a tow truck driver who heard the above information on his police band radio. He watched for the Taylor vehicle which drove by him a short time later. Mr. Dhaliwal began to follow the vehicle. He observed the vehicle to be weaving back and forth within its lane, occasionally riding the lines. At one point it almost collided with another vehicle but then moved back. He described the vehicle as being driven aggressively, perhaps trying to lose Mr. Dhaliwal who continued to follow. Eventually, the vehicle turned into a mall parking lot where it circled a group of parked cars before coming to a stop.

[103] Constable Conant then arrived in that parking lot and observed the vehicle circle a number of parked vehicles. He also saw the tow truck driving behind it.

[104] I note at this point that the evidence of Mr. Taylor was to be applied to the Charter application only. Accordingly, there is no evidence before me here to the effect that Mr. Taylor was texting while driving. So, to that extent, I am in much the same position that Constable Conant was in when he formed his initial opinion as to Mr. Taylor being impaired. I might surmise that Mr. Taylor might have been texting. I might also surmise that Mr. Taylor might have been ill or might have been simply a bad driver. I might also surmise that Mr. Taylor was driving badly because his ability to operate a motor vehicle was impaired by alcohol. All of that however is only surmise on my part. Further, also like Constable Conant, I must not consider that, or any other factor, in isolation. Rather I must consider the entire constellation of factors known to me before reaching my conclusion.

[105] Similarly, there is no evidence before me regarding any past experiences that Mr. Taylor might have had with carjackers in the past. Nor can I take into account any statements made by Mr. Taylor to the police officers including the statement that, "That tow truck was chasing me."

[106] I am satisfied, based on the evidence that was before me, that Mr. Taylor was aware that he was being followed by a tow truck. I am further satisfied that he might have been nervous or even frightened by that. I am satisfied that he was trying to get away from the tow truck. I note however that Mr. Taylor did not call the police on his cell phone to report that he was being pursued by some stranger. Nor did he pull into a busy gas station where other people would be near at hand when he stopped to confront his pursuer. Both of these options strike me as being more reasonable choices than entering a mall parking lot and driving around there. Such an error in judgment could also be the result of Mr. Taylor's abilities being impaired by alcohol.

[107] Constable Conant smelled the odour of an alcoholic beverage on the breath of Mr. Taylor. I am regarding this as confirmation of consumption of alcohol by Mr. Taylor only. It does not establish how much he had to drink or what effect the alcohol might have had on his ability to drive.

[108] Similarly, I also view the result of the first breath test as confirmation of consumption of alcohol by Mr. Taylor. It too does not establish how much he had to drink or what effect the alcohol might have had on his ability to drive.

[109] Constable Conant noted that Mr. Taylor stuttered slightly while speaking.

[110] He had red glossy eyes.

[111] Constable Conant demanded that he provide his driver's licence, ownership and proof of insurance. Mr. Taylor pulled out his wallet, flipped through it and then placed it on the seat to his right. He looked around, grabbed the wallet and again flipped through it before putting it back down. When asked if he had any luck, he replied, "I'm looking". He appeared frustrated. When asked what he was doing, he replied, "Looking for it". Constable Conant told him it was not necessary, but Mr. Taylor replied, "No, I am still looking for it". He got out of his car, and began to look in the back seat on the driver's side. He said, "I know it's here. It's in my phone case". Constable Conant observed a phone case on the front passenger seat. He told Mr. Taylor that it was not important and directed him to go sit in the police car. Despite repeated instructions to do this, Mr. Taylor continued to look in his car, and said he was "Going to look for it".

[112] Throughout this exchange, Constable Conant noted that Mr. Taylor was slurring his speech slightly and that some words ran into each other.

[113] Constable Conant subsequently retrieved the phone case and located Mr. Taylor's documents in it.

[114] All of these are factors which are consistent with Mr. Taylor's abilities being impaired by alcohol.

[115] Any admissions by Mr. Taylor of consumption of alcohol are not in evidence before me at this stage.

[116] Similarly, I cannot take into account the fact that while testifying before me, Mr. Taylor presented as a very fastidious person, the kind who would not stop looking for his phone until he found it. That too is not evidence before me at this stage of the proceedings.

[117] I note that Constable Crosswell did not refer at any time to red glossy eyes or to slurred speech.

[118] Constable Wentzell made his observations some time later at the police station. He did not note an odour of alcohol on Mr. Taylor's breath but he did see a flushed face and red rimmed eyes. Mr. Taylor's pupils were apparently normal.

[119] No witness said that Mr. Taylor ever had any problem with his balance while walking or standing.

[120] While watching the audio-video recording of Mr. Taylor in the breath room, I did not observe that Mr. Taylor ever had any problem with his balance while walking or standing. Neither did I detect any problems with his speech.

[121] I commented earlier on my assessment of the credibility and reliability of Constable Conant as a witness.

[122] After considering all of these factors, I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Taylor was operating his motor vehicle while his ability to do so was impaired by alcohol. Accordingly, I find him guilty of that offence.

Released: April 28, 2016

Signed: "Justice D.A. Harris"

Footnotes

[1] R. v. Haas, [2005] O.J. No. 3160 (Ont. C.A.) per Goudge J.A. at paras. 24 to 26; R. v. Shepherd, 2009 SCC 35, [2009] S.C.J. No. 35 (S.C.C.) per McLachlin C.J. and Charron J. at paras 15 to 16.

[2] R. v. Haas, supra at para. 36.

[3] This excellent summary of the law regarding reasonable and probable grounds can be found in R. v. Outri, [2015] O.J. No. 3981 (Ont. C.J.) per Wakefield J. at paras. 13 and 14. See also R. v. Censoni, [2001] O.J. No. 5189 (Ont. S.C.J.) per Hill J. at paras. 29 through 43 and R. v. Shepherd, supra at paras. 13 to 23.

[4] R. v. Kumarasamy, [2011] O.J. No. 2114 (Ont. S.C.J.) per Dambrot J. at para. 41.

[5] R. v. Kumarasamy, supra at para. 42.

[6] R. v. Kumarasamy, supra at para. 43.

[7] R. v. Kumarasamy, supra at para. 46; R. v. Nguyen, 2008 ONCA 49, [2008] O.J. No. 219 (Ont. C.A.) at para. 16.

[8] R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32 (S.C.C.), at para. 71.

[9] R. v. Grant, supra at para. 111.

[10] R. v. Bryce, [2009] O.J. No. 3640 (Ont. S.C.J.) per Hill J. at paras. 64 and 65.

[11] R. v. Beattie, [2009] O.J. No. 4121 (Ont. C.J.) per Duncan J. at para. 34.

[12] R. v. Mehta, [2012] O.J. No. 5587 (Ont. C.J.) per Lipson J. at para. 21.

[13] R. v. Stellato, [1993] O.J. No. 18 (Ont. C.A.) per Labrosse J.A. at para. 14, affirmed at , [1994] S.C.J. No. 51.