Court Information

Court: Ontario Court of Justice

Date: 2016-01-22

Court File No.: Toronto 4817 998 14-75002803

Parties

Between:

Her Majesty the Queen

— And —

Matthew Ryan Peacock

Before the Court

Justice: William B. Horkins

Heard: August 28 and December 2, 2015

Reasons for Judgment Released: January 22, 2016

Counsel

For the Crown: Jonathan Thompson

For the Defendant: Robbie Levita

HORKINS W., J.:

INTRODUCTION

[1] It was just past 1:00 a.m. The police are dispatched to deal with a report of a man passed out in a parked car. They arrive to find the car parked outside of a home just north of Danforth Ave., a main street in mid-town Toronto. The lights are on; the engine is running; a man, the accused, is seated in the driver's seat; his seatbelt is on; music is playing; one hand is on the steering wheel; he has an open can of beer in the other. The doors are locked and the man is out cold. His wife cannot rouse her husband. She has a key but for some reason she cannot open the car door. They rock the car. The accused seems to awaken momentarily; he smiles at the police and falls back into unconsciousness. The engine revs and for safety sake, the police say they plan to break the window to gain access. Hearing this, the accused's wife desperately tries to rouse her husband and is finally successful. He rolls down the window. He is taken out of the car. All of this is captured on video by the officers' onboard camera.

[2] Mr. Peacock is arrested and taken to the police station for breath testing. His eyes are bloodshot and his breath smells strongly of alcohol. His breath tests indicate a Blood Alcohol Concentration (BAC) in the range of 180 mg. per 100 ml. of blood.

[3] The accused, as is his right, did not give evidence himself. The defence instead called his wife, Jody Peacock, to give evidence of, amongst other things, what occurred prior to the police arriving. She also added commentary on some of what occurred both on and off camera during the officers' attendance.

[4] In the following analysis I will expand on some of the particular details of the evidence relevant to each of the legal issues raised at trial.

THE ISSUES

[5] The evidence in this case requires consideration of four well-developed issues common to many drinking and driving prosecutions:

1. The sufficiency of the proof of impairment;
2. Alleged delay in the making of the breath demand;
3. Alleged delay in providing the accused with his "rights to counsel"; and
4. Whether the breath tests were taken "as soon as practicable".

Proof of Impairment

[6] The general test for determining impairment is set out in the Supreme Court's judgement in R. v. Stellato, affirming the judgement of the Ontario Court of Appeal. The alteration of one's judgement and physical abilities due to the consumption of alcohol does not have to reach any particular level. Any resulting degree of impairment is proof of an offence. The Crown need not establish a marked departure from normal. However, the criminal standard of proof beyond a reasonable doubt applies and so generally, in order to rise to this standard of proof, the evidence must in fact establish evidence of a constellation of indicia of impairment, which removes any other meaningful conclusion.

[7] The accused in this case had been drinking earlier in the evening. This is confirmed by his wife. He is found in a near comma-like condition, open beer in hand, behind the wheel of a parked car. The car is running; the lights are on; his seatbelt is on; the doors are locked. He can't be roused by his wife or by the police. He surfaces from unconsciousness momentarily, smiles and appears to pass out again. He smells strongly of alcohol and his eyes are glossy and bloodshot. The inference of impairment is fairly compelling.

[8] Countering this combination of circumstances is the absence of other, sometimes expected indicia of impairment and the evidence of the accused's wife seeking to explain his coma-like state.

[9] The videos of the accused's behaviour once out of the car and later at the police station show no indication of unsteadiness on his feet nor is there any indication of slurred speech.

[10] The accused's wife related that they had been out earlier in the evening. They had had dinner at a restaurant, gone to a movie, visited a pub, followed by a brief visit to another bar. They had been drinking throughout the evening. Her evidence added up to something in the range of a half-dozen beers over the course of the evening. Once back at home, around midnight, they had an argument. He wanted to listen to some of his heavy metal music; he likes it loud. He went out to the car to listen to his music. She was of the opinion that he was not impaired at that time. She didn't know that he had apparently taken a beer with him to the car. An hour or so later the police arrived at her door. It would seem that her teenaged son had called 911.

[11] The evidence tendered through the accused's wife that the deep, coma-like condition of her husband ought not to be seen as evidence of impairment was a key ingredient in the case for the defence. Her evidence was that this was not an unusual state of sleep for her husband, that she had experienced his non-responsive state on many occasions.

[12] While this evidence is certainly worthy of consideration, I did not find it particularly persuasive. The claim of this unusual sleep condition was unsupported by any evidence from the accused or explained by anyone with expertise in the science of sleep disorders. Ms. Peacock came across as an intelligent and very articulate witness. She is a professional. She is in advertising. I suspect that she is a good sales person. However, she also came across as a strong and loyal advocate on behalf of her husband. She very clearly exhibited a degree of animosity towards the police officers involved. This animosity towards the police, whom she characterized as bullies, flowed from their decision on the night in question to impound her car.

[13] I strongly suspect Ms. Peacock's characterization of her husband's sleep disorder to have been somewhat embellished. While I am not prepared to call it a fabrication, it does not have much weight against the totality of the proven facts supporting the Crown's case.

[14] The accused had clearly consumed a quantity of alcohol throughout the evening. He held an open beer in his hand when found by the police, in the car, in a coma-like state of unconsciousness. The smell of alcohol on his breath and the glossy, red eyes are supportive of my conclusion. I include in my consideration the fact that the accused had his seatbelt fastened, the doors locked and the headlights on. Why would all that be necessary for simply listening to some music?

[15] I suspect that the accused had consumed a great deal more than a few beers that evening, that this couple argued, that the accused removed himself from the argument by going to the car, with a beer in hand and perhaps indefinite plans. He turned up his music, fastened his seat belt and with the engine running, and headlights on, passed out cold.

[16] No issue was taken that the accused was in care and control of the vehicle. From the evidence of the officers of his momentary awakening and foot moving to the accelerator there is no doubt that there was a very significant risk created by this situation.

[17] The totality of the circumstances speaks compellingly and establishes beyond doubt that alcohol was the root cause of the accused's obvious impaired conduct and condition. Alcohol need not be the only cause of impairment.

[18] The accused is guilty of impaired care and control of the vehicle.

[19] As a footnote to the above, I expressly direct myself that, in the absence of expert evidence, the results of the breath readings would be irrelevant on the issue of impairment.

The Issues Relating to the "Over 80" Charge

[20] A timeline of the investigation is helpful in appreciating the issues relating to the proof of the "Over 80" charge.

Time	Event	Notes
1:16 a.m.	Officers arrive on scene
1:25	The accused is removed from the car and under arrest
1:42	Right to counsel and breath demand	delay of 17 minutes
1:46	Depart for the police station
2:02	At the station
2:20	Enter station and parade	18 minutes waiting
2:26	Call to duty counsel
2:38	Call back from duty counsel
2:45	To the breath room
2:55	First test – 180 mg %	over 1½ hours

Delay of Rights to Counsel and the Breath Demand

[21] The Criminal Code requires that the breath demand be made "as soon as practicable". This is a statutory condition precedent to the triggering of the presumption relating the subsequent test results back to the time of driving. Prior to the 2008 amendments the requirement was "forthwith".

[22] The measure of this requirement is reasonableness. The Court must be satisfied that the conduct of the police resulting in delay in the interval between arrest and demand is reasonable. Medical and safety concerns are recognized examples of sometimes reasonable causes for delay in making a breath demand.

[23] One of the somewhat unusual circumstances of this case is that the car that the accused was seated in was parked across the street, outside of the accused's home. After the accused was taken out of the car the accused's wife was pleading with the police to not impound the car, telling them that her son needed it for work. This would seem like a reasonable request and the officers took some time speaking to her about this, considering her request and in getting direction on the issue from superiors. The officers ultimately felt that they were required to impound the car. The understandable concern of Ms. Peacock and the reasonableness of her request effectively forced this issue on the officers, who were kind enough to give it some considered thought and investigation.

[24] These officers were trying to be helpful but in doing so, they may have lost sight of the primary concern and a more important priority of compliance with the statutory scheme and the Charter rights of the accused.

[25] Taken as a whole, the dynamic situation at the scene was one which should not be judged in an overly critical fashion. Reasonableness may often seem more strained with the benefit of calm reflection and hindsight. These officers should be commended for at least trying to relieve the family of having their car impounded. I am persuaded that expending 17 minutes on this issue prior to making the breath demand pushes the envelope, but it is not a fatal failure of the condition precedent in the breath testing scheme.

[26] In R. v. Hawkins, [2013] OJ 1103, Justice Bovard found the demand to be "unlawful" when it was delayed 10 minutes while the accused was permitted to retrieve personal items from his car. In R. v. Rosien, [2011] OJ 5411, Justice Blouin found that the demand was not issued "as soon as practicable" due to an 11 minute delay during which the scene was secured. In R. v. Tran, [2005] OJ 6280, Justice Clements found a 13 minute delay, in the absence of exigent circumstances, to be unreasonable. He found that steps taken out of concern for the accused's son could have been attended to by other officers at the RIDE stop, where the accused was detained.

Delay with Respect to Providing Rights to Counsel

[27] In most cases, as in this case, and generally in all such investigations, the arrest, rights to counsel and the demand occur almost contemporaneously. Where a delay is held to be unreasonable, the subsequent breath tests may be excluded on the basis of a failure to comply with a statutory condition precedent or perhaps as a Charter breach, or both.

[28] The reasons for the delay in providing the rights to counsel in this case are the same as the reasons for the delay in the making of the demand, and are sufficiently outlined above.

[29] The Charter demands that rights to counsel be provided immediately. This is a more exacting requirement than the "as soon as practicable" standard governing the statutory condition precedent for the demand and tests. A standard of compliance "immediately" allows for much less judicial tolerance where there is an apparent deficiency in compliance.

[30] Although barely acceptable as a delay measured on the "as soon as practicable" scale, the delay of 17 minutes in providing rights to counsel in this case, when measured against the Charter guarantee of "rights to counsel" being provided immediately, clearly amounts to a breach of the accused's s.10 Charter rights.

The 24(2) Analysis with Respect to the s.10 Breach

[31] In R. v. Grant, 2009 SCC 32, the Court articulated a s. 24(2) framework of analysis when triggered by a Charter breach. The three lines of inquiry – seriousness of the Charter infringing conduct, the impact of the breach on the Charter interests of the accused and the societal interest on an adjudication on the merits – are considered and balanced in the context of "all the circumstances", in order to assess whether the admission of the evidence would bring the administration of justice into dispute.

[32] There is no hierarchy of Charter rights; but in the context of a criminal investigation, access to counsel is vital. Any breach of counsel rights must be assigned significant gravity. Having said that, the seriousness of the officers' conduct in this case is easily pegged at the low end of the spectrum. The delay leading to the breach here resulted from the officers' efforts to be helpful. It was not deliberate. It was not systemic. It had no element of bad faith or indifference.

[33] The impact of the delay was minimal. No evidence was elicited directly as a result of the delay. No prejudice resulted.

[34] The societal interest in the prosecution of drinking and driving cases on their merits has been universally acknowledged and emphasised in the appellate courts.

[35] A balancing all these factors, in the context of all the circumstances of this case, clearly favors inclusion of the subsequently seized breath test results.

Were the Tests Taken "As Soon As Practicable"?

[36] In order to trigger the presumption relating the test results back to the time of the alleged offence, the tests must be taken "as soon as practicable".

[37] The governing law on this issue is articulated in R. v. Vanderbruggen. The clear message from the Court of Appeal in that judgement was to assess these situations with a tolerant, broad assessment of the reasonableness of the police conduct. A detailed minute by minute dissection of the chronology is to be avoided.

[38] The purpose of the "as soon as practicable" requirement is to guard against the fading reliability of tests that trigger an extraordinary evidentiary shortcut. Parliament's intent with this scheme of presumptive proof was to facilitate the use of scientifically reliable breath testing analysis.

[39] Certain delays in the chronology of this investigation do need some analysis in order to then assess the total impact of those delays. The first delay is the delay from about 1:25 to about 1:42. This is the delay between arrest and rights to counsel and demand. I have already canvassed the nature of what transpired then: the police trying to determine the necessity of impounding the car or not. This delay added 17 minutes to the delay in taking the first sample of breath.

[40] The second delay is a gap in the evidence of what transpired from 2:02 until 2:20. The evidence is simply that the officers were waiting to gain access to the police station. This delay added 18 minutes to the delay in taking the first sample. The officers speculated that the wait related to the need for them to be booked in. It was never really explained what this entailed or why it would take 20 minutes to accomplish.

[41] I can say from long experience with hearing drinking and driving cases that this is a common lacuna in the chronology of events in investigations in this jurisdiction. Because it is a reoccurring theme, it is tempting for the Court to make an educated guess as to why the officers had to wait at the station door. However, I am not prepared to make such a guess under the guise of judicial notice when there is simply no evidence to base a finding upon. I have no evidence to adequately assess whether whatever was happening during this delay was reasonable or not. This is a failure in the completeness of the evidence.

[42] The first test was taken about an hour and 40 minutes into the investigation. It is my view that as the timeline towards the tests grows so does the need to explain any and all delays. The deeper into the timeline, the more concerned the Court should be of the impact of the delay. This 18 minute gap in the timeline occurs about three quarters of an hour into the timeline that ends with the breath testing. This unexplained delay of 18 minutes pushed the tests and their fictional, presumptive value that much farther away from the time of the alleged offence.

[43] Regrettably I must conclude that the evidence here fails to support a finding that the tests were taken as soon as practicable. The presumption of BAC at the material time is not triggered and the Over 80 charge is fatally deprived of that evidence. That charge must be dismissed.

Released: January 22, 2016

Signed: Justice William B. Horkins