Court Information

Ontario Court of Justice

Date: 2016-07-08

Court File No.: Central East - Newmarket 4911-998-15-02973-00

Parties

Between:

Her Majesty the Queen

— AND —

William Constable

Judicial Officer and Counsel

Before: Justice David S. Rose

Heard on: January 26, 2016 and June 10, 2016

Reasons for Judgment released on: July 8, 2016

Counsel:

• Mr. Stewart & Mr. M. Ventola — counsel for the Crown
• Mr. Brody — counsel for the defendant William Constable

Judgment

ROSE J.:

[1] William Constable is charged with Impaired and Over 80 Operation of a Motor Vehicle on April 6, 2015. Mr. Brody brought a Charter Application alleging infringements under ss. 8, 9 and 10(b) of the Charter, but abandoned the ss. 9 and 10(b) arguments during the trial. These were fair concessions. In addition to the remaining s. 8 argument, Mr. Brody argues that I should give no weight to the expert report about Mr. Constable's Blood Alcohol Content ("BAC") and that the evidence of impairment was not proven beyond a reasonable doubt. At the outset of the trial Mr. Brody conceded date and jurisdiction.

[2] The first witness for the Crown was Ms. Linda Breen, who works at a McDonald's restaurant in Keswick. Between 5:00 and 6:00 p.m. on April 6 of last year she was servicing the drive-through. A vehicle came to her location, and when she opened her window she could smell a strong odour of alcohol from that vehicle. She thought the smell was coming from the gentleman in the car. She gave the bag of food to him and when he went to reach for it his coordination was off. In her words, "…his coordination was all off." The gentleman apologised for not being able to reach the bag. She testified that it was 5 minutes from the time the car entered the parking lot until the time it left with the food.

[3] Ms. Breen felt that the driver was "impaired, was under the influence", based on the smell and coordination. She wrote down his licence plate and called 911. The car left the McDonald's going north on Woodbine Avenue. She gave the 911 operator the licence plate of BSYX 282.

[4] In cross-examination Ms. Breen testified that the man in the drive-through was clean shaven, meaning no beard or moustache.

[5] PC Luckasavitch is a York Regional Police Officer with 25 years' experience. He testified that at 7:15 p.m. on April 6, 2015 he got a radio call about a complaint from a McDonald's employee who called in about an impaired driver coming through a drive-through window. He was given a licence plate of BSYX 282. His dispatcher told him that the owner of that vehicle lived at 1306 Metro Road in Keswick and it was a 2003 Honda Odyssey. Heading to Metro Road he caught sight of a Honda Odyssey on Civic Center Road at 7:23. The Honda was swerving and weaving, coming into contact with the right shoulder. Luckasavitch activated his lights, but the vehicle did not pull over. At the intersection of Metro Road the vehicle rolls back a short distance and then turns left. At 7:24 p.m. it turns into 1306 Metro Road, which is just to the west of the intersection of Civic Center Road and Metro.

[6] Luckasavitch pulled his cruiser into the driveway behind the Honda. The accused was the driver. He got out of the car and appeared to be unsteady on his feet. He appeared confused. He was brushing off food from his shirt, and the officer asked him if he had been drinking, to which he said "No." Luckasavitch saw McDonald's food wrappers in the car and concluded that he had just been to McDonald's. Mr. Constable's speech was slightly slurred, and his eyes were glassy.

[7] PC Luckasavitch asked Mr. Constable for his documents and was given them. The officer asked Mr. Constable to accompany him to the police car and at 7:27 he sat in the back of the car. After Mr. Constable sat in the back of the police cruiser, PC Luckasavitch left his vehicle to speak to another officer who had arrived on scene. At 7:30 p.m. he got back in his car and arrested Mr. Constable for Impaired Operation. He gave him his rights to counsel at 7:31. On behalf of Mr. Constable, Mr. Brody admitted that Rights to Counsel, Caution and the appropriate breath demand were read.

[8] PC Luckasavitch testified that his grounds to arrest Mr. Constable were his erratic driving, which included weaving, rolling back at the intersection, his unsteadiness on his feet, the slightly slurred speech, the slight sway of his head and odour of alcohol on his breath once he had been confined in PC Luckasavitch's car for a few minutes.

[9] PC Luckasavitch left the scene with Mr. Constable at 7:42 and at 7:47 they arrived at the police station. Mr. Constable was booked at 7:49, and at 7:56 he was placed in a cell waiting to speak with a lawyer. A call to duty counsel was placed at 8:06 and at 8:19 duty counsel called back. At 8:20, Mr. Constable spoke with duty counsel. That call was finished by 8:35 p.m. and he was then turned over to the Qualified Breath Technician PC Hodgins. Mr. Constable then wished to speak with a specific lawyer, Iain Donnell, and efforts were made to contact that lawyer. Mr. Constable spoke with Mr. Iain Donnell and at 9:35 he was again turned over to PC Hodgins for breath testing.

[10] The video of Mr. Constable's car on Civic Center Road and its turn onto Metro Road and then into his driveway was captured on the police dashboard camera. PC Luckasavitch was cross-examined on this in very considerable detail. It was the defence suggestion that the video does not show what PC Luckasavitch said was bad driving. His evidence was that the in-car camera doesn't show exactly what the naked eye sees, because of the distance. In his words the dash camera sees a different scale than what the driver sees. Cross-examination failed to diminish PC Luckasavitch's evidence in this regard.

[11] In cross-examination PC Luckasavitch admitted that he placed Mr. Constable in the back of the police cruiser to see if his breath would exhibit more of an odour of alcohol. While he initially felt he had a reasonable suspicion, sufficient to make an ASD demand, once he had the opportunity to smell the air in the car used by Mr. Constable for a few minutes that suspicion had been elevated to reasonable grounds to make an arrest. Several empty cans of beer were found in the car. All were within reach of the driver. He thought it possible that he consumed them while driving prior to being stopped, right up to the point where he, PC Luckasavitch, pulled up behind him. PC Luckasavitch did not do a thorough search of the car but did see some open cans within reach of the driver.

[12] A Crown Breath Technician's alcohol influence report was filed in evidence with the consent of the defence, as was an opinion letter of an expert toxicologist, Dr. Daryl Mayers. Mr. Brody admitted that the read-back portion of the report was appropriate and there was no issue of the operation of the Breathalyser. As Mr. Brody put it, the Expert Report was admissible, but should be afforded no weight because one of the assumptions relied upon by the Expert was not made out in evidence. Dr. Mayers opined that Mr. Constable's BAC was between 115 and 170 mg of alcohol in 100 ml of blood between 7pm and 7:24pm.

[13] The Defence called no evidence.

Issues

[14] Mr. Brody abandoned the s. 10(b) argument, and in argument the s. 9 argument. What is left is: 1) Was there a s. 8 Breach and should the breath tests be excluded from evidence; 2) Has the Crown proven an absence of bolus drinking in the expert report's third assumption; and 3) Has the Crown proven that Mr. Constable's ability to operate a motor vehicle was impaired by alcohol.

Discussion

1) Was there a violation of Mr. Constable's rights under s. 8 of the Charter?

[15] The test for reasonable and probable grounds to make an arrest, and therefore a breath demand under s. 254(3) of the Criminal Code follows a well-trodden path. The case of R. v. Bush 2010 ONCA 554 is authoritative, and conveniently summarizes the various contours of this constitutional argument. At paragraphs 36 – 38, Durno J. sitting ad hoc said:

36 Drinking and driving prosecutions involve a continuum of findings, beginning with a reasonable suspicion the driver has alcohol in his or her body, the standard for an Approved Screening Device (roadside) demand pursuant to s. 254(2) of the Criminal Code. At the other end of the continuum, is the standard for conviction, proof beyond a reasonable doubt that the operator's ability to operate a motor vehicle was impaired by the consumption of alcohol or that the driver's blood alcohol concentration was over the legal limit.

37 Between suspicion and proof beyond a reasonable doubt lies reasonable and probable grounds. Section 254(3) of the Criminal Code authorizes peace officers to demand Intoxilyzer breath samples provided the officer "has reasonable and probable 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 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 at para. 51. The officer's belief must be supported by objective facts: R. v. Berlinski, [2001] O.J. No. 377 (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 at p. 250.

[16] Going on, it is the totality of circumstances which is relevant to the analysis, not a dissection of each of the various indicia. Hearsay may be relied upon, as may be the officer's training and experience, see Bush at paragraph 61.

[17] Given the evidence before me, I reject the argument that Mr. Constable was arrested without reasonable and probably grounds. Objectively, a reasonable person in the same place as PC Luckasavitch would have come to the same conclusion. In making this determination I have trimmed the weight of Ms. Breen's evidence because of her failure to accurately note Mr. Constable's facial features. Nonetheless, PC Luckasavitch had recent information about an impaired driver which was quite specific. It listed the vehicle plate number and where the driver had just bought food. As a police officer he was duty bound to act on the information, and he did – quite promptly. I would not minimize PC Luckasavitch's observations of Mr. Constable's driving, which showed two instances of minor inability to control the vehicle. His failure to stop when the officer engaged his roof lights is part of that sequence. PC Luckasavitch's experience was apparent in his evidence, particularly when explaining why what he saw on the road is not so clear on the dash cam recording. Putting it together, he had before him evidence of bad driving, indicia of impairment from himself and another, and a strong odour of alcohol. His grounds were objectively reasonable. There was no constitutional violation and I reject the s. 8 argument.

[18] Mr. Brody argues that the 3d assumption from Dr. Mayer's Report, namely no bolus drinking, was not made out. In cross-examination Mr. Brody elicited evidence of open beer cans in the car from PC Luckasavitch, who was candid that he did not itemize them, but that it left him mindful of the possibility that Mr. Constable was drinking beer up to the point where he was brought out of the car by PC Luckasavitch. The officer candidly admitted that he could not see what Mr. Constable was doing while he was driving. Mr. Constable's utterance that he was not drinking was made while he was detained for investigation into alcohol related driving offences and prior to being cautioned or given rights to counsel. Accordingly I will not consider it in evidence.

[19] In his report, Dr. Mayers said his opinion assumed that Mr. Constable had not consumed "large quantities of alcohol" shortly before the incident. I do not know what amount constitutes "large"; see R. v. Smith 1998 CarswellOnt 3194 at para. 31. Multiple open beer cans were found in reach of Mr. Constable and these were not itemized. Empty containers of alcohol is one of the factors which courts have noted to support an inference of bolus drinking; see R. v. Calabretta 2008 CarswellOnt 9305, R. v. Grosse, 1996 CarswellOnt 1949 (C.A.). A strong odour of alcoholic beverage was, in Grosse (supra) also considered to be evidence of bolus drinking. The combination of empty beer cans in the car and Mr. Constable's breath smelling stronger of alcohol as time progressed displaces the common sense inference that persons do not consume alcohol in large quantities in a short period of time. In the result there is evidence before me which is consistent with consumption of alcohol prior to being stopped by Constable Luckasavitch. The 3d assumption of Dr. Mayer's report is not made out and I accordingly afford the report no weight in evidence. Mr. Constable is acquitted of the charge of Over 80.

[20] As regards the Impaired Driving count, what PC Luckasavitch had from Mr. Constable was a strong, growing odour of alcohol on his breath, some evidence of unsteadiness on his feet and slightly slurred speech. The bad driving was very much at the lower end of the spectrum. At worst, Mr. Constable's Honda came into contact with the right shoulder of the roadway. The evidence from Ms. Breen, the food on him, and the wrappers in the car support a reasonable inference that Mr. Constable was driving while consuming a meal just purchased. There is, therefore, evidence that Mr. Constable was driving while eating at the same time, which is an explanation for the bad driving observed by PC Luckasavitch. In R. v. Stellato 1993 ONCA 3375, the Ontario Court of Appeal ruled that:

14 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. (R. v. Stellato (1993), 78 CCC (3d) 380 (Ont CA); aff'd at, [1994] 2 SCR 478)

[21] After considerable reflection I have concluded that this case falls within the category of cases where the evidence of impairment is so frail that I have a reasonable doubt. Mr. Constable is acquitted of the impaired driving charge.

Released: July 8, 2016

Signed: "Justice David S. Rose"