Ontario Court of Justice

Date: 2016-06-22

Court File No.: Region of Durham 998 15 00217

Between:

Her Majesty the Queen

— AND —

Vinesh Anand

Before: Justice J. De Filippis

Heard on: May 30, 2016

Reasons for Judgment released on: June 22, 2016

Counsel:

• Mr. B. Guertin, counsel for the Crown
• Mr. S. Khehra, for the defendant

Reasons for Judgment

De Filippis J.:

[1] The defendant was tried on an Information alleging that (1) he was in care or control of a motor vehicle while impaired and (2) refusal to provide a breath sample. He brought a motion to exclude the evidence needed by the Crown to prove the charges. This motion is grounded in sections 8, 9, and 24 of the Charter of Rights and Freedoms. The trial proceeded by way of a blended hearing.

[2] The defendant conceded the facts he expected the Crown to prove and focussed the trial on two issues: First, did the police officer have reasonable and probable grounds to arrest him (and demand a sample of his breath)? In this regard, the Defence waived proof of date, time, jurisdiction and identity. It is also agreed that the defendant's conduct in the breath room amounted to a refusal to provide a breath sample. Accordingly, if the arrest and demand is lawful, there must be a finding of guilt with respect to this count. The second issue is proof of impairment while in care and control of a motor vehicle. That is, assuming the officer acted lawfully, has the Crown proven that count beyond a reasonable doubt. These reasons explain why I dismiss the Charter challenge, find the defendant guilty of refusal to provide a breath sample and not guilty of having care and control of a motor vehicle while impaired.

Facts

[3] Much of the evidence is not in dispute. On Saturday February 28, 2015, PC Madden was on general patrol in the Town of Whitby. The defendant was the driver, and lone occupant, of a motor vehicle that exited highway 401 at Brock Street. Shortly before 4 AM, the officer saw the defendant drive very slowly on Consumers Drive and approach an intersection that displayed a green light. The defendant stopped in the centre of the intersection "for a second or so", before proceeding through it and turning right into the parking lot of a Motel 6. The officer could discern no apparent reason for the defendant to stop in the middle of the intersection as the roads were dry and there were no other cars in the area. Believing the defendant to be either impaired or confused he decided to investigate.

[4] P.C. Madden activated his emergency lights and followed the defendant to the Motel 6. The parking lot was well lit. The defendant immediately exited his vehicle and walked towards the police cruiser. The officer also exited his vehicle. The defendant said he was staying at the Motel to "meet a girl". The officer noted that the defendant had glassy, bloodshot eyes and a strong odour of alcohol coming from his breath. He also had the odour of marihuana on his clothing. The defendant admitted consuming two beers at his residence and said he had left home after having an argument with his father.

[5] P.C. Madden told the defendant he suspected him to have been drinking and driving. The latter asked "for a break" as he had had a bad day and just wanted to go to bed. Upon being asked for his licence the defendant said, "You don't have to do this, I'm already at the motel". The officer considered these pleas along with his observations of the defendant's eyes and odour of alcohol and marihuana in concluding that the defendant's driving was not due to innocent confusion. At 3:54 AM, he arrested the defendant for impaired driving. The defendant became agitated; as the caution was read to him, he talked over the officer and said, "We're both brown men, our mothers know each other, you don't need to do this".

[6] At the police station, the defendant was placed in an interview room to facilitate the right to counsel. A portion of the videotaped proceedings was presented in evidence. The defendant was very upset and insisted his father be called for the name of a lawyer. He loudly protested his innocence as the officers did so and never asked his father about a lawyer; instead, he demanded his father confirm that they had argued. Eventually, he was taken to another room to provide samples of his breath. While P.C Madden provided his grounds for arrest to the intoxilyzer technician, the defendant called him a liar and said, "I wasn't even driving".

[7] The defendant failed to comply with the demand to provide breath samples. After being charged with this additional offence, he was released by P.C. Madden. During this process, the defendant told the officer to "go to hell" and referred to his "monthly quota [of charges]". P.C. Madden noted that the odour of alcohol emanating from the defendant's breath remained strong. Several days later, when the defendant attended at the police station for fingerprinting, he apologized to P.C. Madden for his behaviour after arrest.

[8] P.C. Madden agreed that apart from the unduly slow entry into the intersection and the stop in the centre of it for no apparent reason, there is no other evidence of "bad driving". He also conceded that the red glassy eyes could be due to tiredness and that he did not observe the defendant to exhibit slurred speech or unsteadiness on his feet. The officer confirmed there is a hotel across the street from the Motel 6. He denied the defendant told him he was confused about whether to go to the hotel or the motel. He added that all he was told is that the defendant had argued with his father and was going to see a girl. P.C. Madden usually carries an approved screening device while on general patrol but cannot recall if he had one on this occasion. He testified that he did not believe he needed to resort to the roadside device as he had reasonable and probable grounds to arrest.

[9] The defendant is 28 years old, born in Zimbabwe, employed full time, and resides in Pickering with his parents and younger sister. He testified to "always arguing with Dad" and noted that on the day in question it was "particularly bad". He told his father he would check into a hotel and return home the following day. He explained that he drove to Whitby because, in the past, he had seen a hotel and motel at Brock Street while traveling along Highway 401. On arrival at that location, he realized he could not turn left into the hotel and slowed down in the intersection before turning right into the motel parking lot. He testified he was confused and said that his eyes were red and glassy because he had been crying. The defendant denied seeing other hotels along Highway 401 well before arriving in Whitby. When pressed that one of these is a Hilton Hotel and clearly visible from the highway, he responded that that hotel was too expensive. The defendant testified that he did not tell the officer he planned to meet a woman at the motel in Whitby.

[10] The defendant agreed that he could have had an odour of alcohol on his breath because he had consumed two beers. He added that the odour of marihuana on his jacket was absorbed into his clothing while visiting a neighbour who regularly smokes the drug in his garage. The defendant said he asked the officer "for a break" because he "felt fine to drive and had arrived at the destination". He testified that he is embarrassed by his conduct at the police station and attributed it to his concern about the impact of a criminal record. He explained that he disputed that he had been driving when P.C. Madden provided his grounds to the intoxylizer technician because when approached by the arresting officer he was out of his car.

Legal Framework

[11] As noted, this case is grounded in a constitutional challenge. Section 8 of the Charter provides that "Everyone has the right to be secure against unreasonable search or seizure". This right means that the police must have reasonable and probable grounds to arrest and/or search a person. Section 9 states that "Everyone has the right not to be arbitrarily detained or imprisoned. The enforcement of Charter rights is governed by section 24:

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

Analysis

Charter Motion

[12] The Defence argues that P.C. Madden's subjective belief in reasonable and probable grounds cannot be endorsed by the court. It is claimed that there is no evidence of bad driving; the fact that the defendant drove slowly and stopped for seconds is not enough. In any event, counsel submits that the officer had the reasonable suspicion needed to make a roadside demand for a breath sample but "jumped the gun" in proceeding directly to an arrest. In this regard, reliance is placed on the decision of the Alberta Court of Queens Bench in R v Waters 2010 ABQB 607, at paragraph 30:

It is important to note that Parliament has provided police officers with tools to use when the indicia do not rise to the level required to make a breath demand under s. 254(3). In particular, s. 254(2) of the Criminal Code allows the police officer to request that the driver perform physical coordination tests, or blow into an approved screening device. The results of these roadside tests may allow the officer to develop the grounds to make a formal breath demand under s. 254(3). The Constable should have made use of these additional tools. It is important to note the different grounds required under the two sections. Section 254(2) only requires the police officer to have "reasonable grounds to suspect that a person has alcohol or a drug in their body" and has operated or had care or control of a vehicle within the past three hours. In contrast, s. 254(3) requires the officer to have "reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253", either impaired driving or driving with a blood alcohol level over .08. Allowing a breath demand where the indicia did not go beyond grounds for a reasonable belief that a person operating a motor vehicle had alcohol in his body would erase the distinction between ss. 254(2) and 254(3) of the Criminal Code.

[13] The Crown argues that the requirement for reasonable grounds to exist before making a breath demand under s. 254(3) of the Criminal Code is not an onerous test. Slight impairment is sufficient and the totality of the circumstances must be considered. In this case, counsel points to the following observations by P.C. Madden: The defendant approached the intersection at unduly slow speed, stopped in the centre of the intersection at a green light, he had glassy bloodshot eyes, a strong odour of alcohol, admitted consuming two beers, and pleaded for a break before the arrest. This, it is said, is objectively reasonable.

[14] A reasonable and probable ground to arrest has both a subjective and an objective component. The subjective component requires that the officer honestly believe the suspect committed an offence. The objective component means that the officer's opinion must be supported by objective facts: Storrey v. The Queen (1990), 53 C.C.C. (3d) 316. Judicial scrutiny of reasonable and probable grounds for a breathalyzer demand must recognize the context within which the police officer's obligation operates. An officer must make a quick but informed decision about whether a driver is impaired. In this context, the grounds needed for a breath demand is not an onerous threshold. It must not be inflated to the context of testing trial evidence. Neither is it to be so diluted as to threaten individual freedom: R. v. Censoni [2001] O.J. No. 5789 (S.C.J.). In other words, there must be enough to justify laying a charge but this does not mean a prima facie case or proof beyond a reasonable doubt. See also: R v Bush, 2010 ONCA 554.

[15] In general, the evidence of defendant does not conflict with that of the officer except on two points; He asserted that he did not stop in the centre of the intersection and denied he was in Whitby to meet "a girl" at the motel. I reject this testimony. I am confident he was meeting a woman. This explains why he did not go to a hotel or motel closer to home and, instead, went to an unfamiliar area. I accept that the defendant approached the intersection slowly because he was confused about how to enter the parking lot and have no doubt he also momentarily stopped in the centre of it. Since there was no apparent reason for this conduct, it is not surprising that it attracted the attention of P.C. Madden.

[16] The defendant exhibited the odour of alcohol from his mouth and marihuana from his clothing. He also had glassy red eyes. These observations would justify a demand to provide a breath sample into an approved screening device but, standing alone, do not constitute reasonable and probable grounds to arrest. What tips the balance in this case is the defendant's plea to be given a break. His explanation for doing so is not credible. He was obviously concerned he had been caught committing a criminal offence. In all the circumstances, the officer's conclusion that defendant's actions at the intersection were due to impairment is rational. The defendant's repetition of the plea after arrest, this time couched in terms of a perceived shared ethnicity, as well as his conduct at the police station provide independent support for this belief.

Verdict

[17] I find P.C. Madden's subjective belief in reasonable and probable grounds to be objectively reasonable. I dismiss the Charter motion. As there is no dispute that the defendant refused to comply with the demand to provide a sample of his breath, he is found guilty of that offence. However, I am not satisfied that the Crown has met its burden of proof with respect to the other count in the Information. That offence is made out by proof of any degree of impairment, from slight to great; see R. v. Stellato, [1994] 2 S.C.R. 478. This does not mean that any abnormal driving will suffice as this would capture common mistakes made every day by sober people. Although it was appropriate for the officer to conclude the defendant's driving was due to impairment, I am not convinced of this beyond a reasonable doubt.

[18] I am grateful to counsel for their assistance and in focussing this trial on the relevant issues.

Released: June 22, 2016

Signed: "Justice J. De Filippis"

Footnote

[1] At the outset of trial, the defendant abandoned a claim that his right to counsel, pursuant to section 10(b) had been violated.