Ontario Court of Justice

Date: 29 June, 2016

Court File No.: 15-03230 Newmarket

Between:

HER MAJESTY THE QUEEN

— AND —

WENDY FLEMING

Judgment

Before: Justice Joseph F. Kenkel

Heard: June 29, 2016

Delivered: June 29, 2016

Counsel:

• Mr. Michael Ventola, counsel for the Crown
• Mr. David Laikie, counsel for the defendant

KENKEL J.:

[1] Police received a tip from a neighbour that a woman had been drinking all day and was driving to the beer store to buy more. They found the car with the matching plate at the beer store and stopped the accused as she reversed out of the parking spot. She failed an approved screening device (ASD) test and later approved instrument (AI) tests at the station showed she had a blood alcohol level over the legal limit.

[2] Given that the driving was limited to backing up a few feet before the police car blocked her way, Ms. Fleming was charged with having Care or Control of a motor vehicle while "Over 80".

[3] The Crown has proved that Ms. Fleming had care or control of the vehicle as she put it in reverse and backed away from the Beer Store. At the conclusion of the evidence the following issues remain:

• s.9 DETENTION – Whether the police had the authority to stop the accused in the private parking lot?
• s.258 - 2 HOURS – Has the Crown proved the tests were taken within two hours?
• s.8 AI DEMAND GROUNDS – Has the Crown proved the AI demand was based on reasonable grounds?

Charter Section 9 - Detention in the Private Parking Lot

[4] The defendant submits that the police do not have authority under the Highway Traffic Act to stop a vehicle being driven on private property to investigate impaired driving. The random stop provision in s.48 of the Highway Traffic Act does not authorize stops on private property unless the vehicle was on a public roadway prior. See: R v Heer 2013 ONSC 7257 at paras 23-36

[5] Random stops to investigate possible impaired driving may be justified in some cases by the common law "ancillary powers" doctrine where police were acting within the scope of their duty and where the stop was justifiable in the circumstances. R v Nield 2015 ONSC 5730, R v McGregor 2015 ONCJ 692, R v Dillon [2006] OJ No 1366 (SCJ), R v Dedman, [1985] SCJ No 45.

[6] The limits on the provincial HTA random stop power don't assist the defendant in this case as this was not a random stop. On the contrary, the investigating officers had all received very specific information about a complaint by a neighbour regarding a female who had been "drinking all day" who was "impaired" and was driving a white Kia Soul with a specific plate. They were advised she was headed to the Beer Store at Glenwoods Plaza. The officers found a woman driving that car at that Beer Store.

[7] The Criminal Code applies in all places including private parking lots. R v Toodlican [2008] BCJ No 1232 (CA). The officers plainly had grounds under the Criminal Code and the common law to detain and investigate the accused without reference to the HTA. The stop was not arbitrary.

s.258(1)(c)(ii) Two Hours

[8] Constable Hunter blocked in the accused's car just 3-4 minutes after 1609h. The first sample was complete at 1757h. For the Crown to receive the benefit of the presumption of identity they must prove that the first sample was completed by 1812h. The defence notes that the times are close and that the various officers involved did not synchronize their watches.

[9] Fifteen minutes is not so close that the court can find doubt without entering into speculation. Constables Blurton and Gabay show the same time for handover of the accused so their watches were reasonably close. Constable Blurton and Constable Hunter both testified that they received the initial radio call within minutes of 1609h. Even considering the anomaly in the Alcohol Influence Report where the time of driving was entered incorrectly as 1604 when it was actually minutes later, on the whole of the evidence I cannot find any evidence that reasonably could leave a doubt on this point. I find that the Crown has proved compliance with the s.258(1)(c)(ii) two hour limit and the other requirements of s.258.

Reasonable Grounds for the AI Demand

[10] Constable Blurton's ASD demand was based on the radio call information and the information he was given by PC Hunter. He had objectively reasonable grounds for his reasonable suspicion that the accused had operated a motor vehicle with alcohol "still in her system".

[11] The approved instrument demand was based on the accused's failure of the ASD test. The failure of that test provided objectively reasonable grounds for the officer's approved instrument demand.

[12] The defence submits that Constable Blurton's testimony did not refer precisely to the unit measurement used in the Criminal Code – mgs of alcohol/100ml of blood. Was his demand reasonable if he did not turn his mind to the precise statutory criteria?

[13] The whole of the evidence shows that PC Blurton did turn his mind to the requirements of s.254(3). He testified that he believed that the accused had operated a vehicle with Over 80mgs of alcohol "in her system". He'd used an approved screening device to test whether the accused was over the legal limit and she'd failed that test. I find that the officer had the statutory limit in mind and took reasonable steps to investigate whether the accused's blood alcohol level was over that limit. The fail provided him with objectively reasonable grounds for the approved instrument demand. In that context, nothing reasonably turns on the fact that the officer failed to mention "per 100ml of blood". As has been often said, there are no magic words.

[14] If that finding is in error then the demand by PC Gabay the qualified technician was made upon reasonable grounds including the expression of the ASD failure with the full unit of measurement.

[15] I find that the defendant has failed to prove the s.8 breach alleged.

Conclusion

[16] I find that the applicant has failed to prove the section 8 and 9 Charter breaches alleged. I find that the Crown has proved that the samples were taken within the limits set out in s.258 and the presumption of identity applies. The Crown has proved all of the elements of the offence alleged beyond a reasonable doubt. There will be a finding of guilt.

[17]

Released: June 29, 2016

Justice Joseph F. Kenkel