Court Information

Date: August 24, 2016

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Ankoma James Hackman

Before: Justice J. M. Grossman

Heard: July 19 and 25, 2016

Judgment Released: August 24, 2016

Counsel

I. Shaikh — Counsel for the Crown

J. Gold — Counsel for the Accused

Decision

Grossman, J.:

Charges

[1] Ankoma James Hackman is charged that on or about the 27th day of June in the year 2015, at the City of Toronto, in the Toronto Region did, while his ability to operate a motor vehicle was impaired by alcohol, operate a motor vehicle and thereby commit an offence under Section 253, subsection (1), clause (a) of the Criminal Code of Canada.

[2] He is further charged on or about the 27th day of June in the year 2015 at the City of Toronto, in the Toronto Region did, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, operate a motor vehicle and thereby commit an offence under section 253, subsection (1), clause (b) of the Criminal Code of Canada.

Charter Application

[3] Mr. Hackman brought a Charter Application seeking an Order to exclude evidence of breath samples pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms alleging breaches of his rights under Section 8, 9 and 10(b) of the Charter. It is of interest that the Application in Form 1 seeks only the exclusion of breath samples as relief but the grounds to be argued and ultimately argued invite more. It was agreed that the Application would be blended with the trial evidence.

[4] In the course of the trial, Crown counsel conceded breaches of section 9 and 10(b) of the Charter in consequence of events relating to investigative detention at the hospital and invited dismissal of the Over 80 mgms. charge. That charge was dismissed. As such, the relief sought in Mr. Hackman's Charter Application, namely to exclude evidence of the breath samples no longer applied. I address Section 8 further along in this Judgment. Let me turn to the evidence.

Evidence

Civilian Witnesses

[5] Nicole Wauchope testified she was with her sister, friend and four children on June 27, 2015 at Metro plaza at the intersection of Keele Street and Wilson Avenue in the City of Toronto. She left the plaza driving her Chevy Traverse SUV at about 9:10-9:15 p.m. heading towards the 401 highway. While waiting at the traffic lights, suddenly and without warning, she was struck in her rear bumper by a Toyota motor vehicle operated by Mr. Hackman.

[6] I am satisfied Mr. Hackman was the driver by reason of Ms. Wauchope's uncontradicted evidence that she approached the Toyota and observed Mr. Hackman in the driver seat. She testified she had a ten minute conversation with him while he was in his vehicle. She also related she saw him drive to the CIBC plaza after the collision as he offered to pay for the damage.

[7] Shana Smith testified she was in the vehicle with Ms. Wauchope and she too stated she went out to talk to the driver who was sitting in the driver's seat and no one else was with him in his vehicle. Both Ms. Wauchope and Ms. Smith said the driver of the vehicle that collided with them and with whom they had a conversation was Mr. Hackman whom they identified in Court.

[8] Ms. Wauchope testified she made observations of Mr. Hackman at the CIBC plaza. She observed him going back to his car stumbling over his feet. She stated she smelled a whiff of alcohol. She also related she observed him go back to his car and slump over. When asked questions, she said he was not responding. Ms. Smith also testified he would not give any information. She also stated that she did smell some kind of odour of alcohol. She said: "I do drink so I know smell."

Paramedic and Police Evidence

[9] Michael Bradbrooke, a paramedic with Emergency Medical Services was called to the scene to attend to Mr. Hackman who complained of abdominal pain. Mr. Bradbrooke testified he observed Mr. Hackman in the driver seat of the motor vehicle. He and his partner took Mr. Hackman to Humber River Church Hospital and when Officers Malhi and Tobin arrived, they were pointed in the direction of Mr. Hackman by Mr. Bradbrooke.

[10] Officers Malhi and Tobin were working the evening shift on June 27, 2015 when they received a radio call to respond to a motor vehicle accident at Keele Street and Wilson Avenue. Officer Malhi stated the call was in respect of a possible impaired. Officer Tobin stated the call was in respect of a personal injury collision. They both attended the scene, spoke to witnesses and then attended Humber River Church Hospital. Officer Malhi testified that upon approaching Mr. Hackman, he could smell alcohol coming from Mr. Hackman's breath. He observed his eyes were bloodshot and he appeared to be unsteady on his feet. The Officer stated in cross-examination that he observed Mr. Hackman's eyes to be bloodshot even before he talked to him.

[11] Officer Tobin testified she observed Mr. Hackman at the hospital. On approaching him, she smelled a strong odour of an alcoholic beverage on his breath. She observed him to be unsteady on his feet with a slight sway, that he had red glossy eyes and slow delayed speech with an accent. She arrested him for impaired operation of a motor vehicle once she smelled the odour of the alcoholic beverage.

[12] I found Officer Tobin demonstrated somewhat of a combative resistant spirit struggling to make any concessions or to subscribe to any acknowledgments unfavourable to the prosecution. Where her evidence is inconsistent with the evidence of Officer Malhi, I prefer the evidence of Officer Malhi.

Legal Analysis

Credibility and Reasonable and Probable Grounds

[13] Mr. Gold argues no observation made after Mr. Hackman's conversation with Officer Malhi should be considered. The Crown invites me only to rely on observations made up to the point of arrest. I turn my mind to the evidence of Ms. Wauchope and Ms. Smith. Their observations occur before the arrival of the paramedic or the police. Their collective evidence puts Mr. Hackman in the driver seat of his Toyota motor vehicle with no one else in the car. He is seen to stumble over his feet. A smell of a whiff of alcohol is detected. He is seen to slump over in his car. He was unresponsive to questions and failed to provide information. The only explanation given to the civilian for the accident was a failure to negotiate a lane change. Taken collectively, the conduct of the accused and the observations of the two civilian witnesses conveyed to the police officers would support the belief that Mr. Hackman's ability to drive was at least slightly impaired by alcohol consumption.

The Test for Impairment

[14] In R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont. C.A.); affirmed, 90 C.C.C. (3d) 160 (S.C.C.), Labrosse J. stated at para. 14:

"If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment [of the ability to drive], the accused must be acquitted. If the evidence of impairment establishes any degree of [such] impairment ranging from slight to great, the offence has been made out."

[15] I rely on the evidence of the civilian witnesses. This information was provided to Officer Malhi.

[16] In R. v. Martin, [2006] O.J. No. 4602 (Ont. C.A.), on appeal from the decision of the summary conviction appeal in respect of the offence of impaired driving, the Court stated at para. 5 as follows:

"In our opinion, just because the arresting officer was of the opinion that he did not have grounds to arrest the appellant for impaired driving the trial judge was not obliged to acquit. The trial judge had other evidence to consider besides that of the police officer indicating that the appellant was impaired, specifically the evidence of the civilian witness."

[17] Irrespective of the officers' observations, in the case at bar, I have evidence of two civilian witnesses who made observations even before the paramedic and police officers arrived. The evidence collectively relates an accident may appear to have been caused by an error in judgment on the part of the accused as well as observation of smell of alcohol, stumbling, slumping in the driver seat and resistance to provide information dictated by the Highway Traffic Act.

Holistic Assessment of Impairment

[18] I have considered R. v. MacPherson, [2008] O.J. No. 1531; ONCJ 184 (O.C.J.) and also R. v. Peterson, [2009] O.J. No. 671; ONCJ 61 (O.C.J.). As Green J. stated in Peterson at para. 31:

"There is no statutory definition of impairment. It is fundamentally a factual inquiry to be determined on a global review of the relevant evidence tendered in each case."

[19] Green J., in a later decision, namely R. v. Leach, [2012] O.J. No. 2584 (O.C.J.) stated at para. 15:

"As has been often said, one must have regard to the entire constellation of circumstances to determine the question of whether an accused's ability to drive was impaired by alcohol."

[20] It is clear that an accident happened. It is relevant to consider the circumstances under which it occurred. It is relevant to consider the resistance of Mr. Hackman to provide information and his effort to circumvent police engagement by attempting to pay for the damage even though his visiting a bank to do so was without positive result. It may be inferred that he was seeking to delay the process of involving police investigation. It is also clear the officers received information describing indicia of impairment and identity of Mr. Hackman as the driver and sole occupant of the vehicle which collided with the SUV driven by Ms. Wauchope.

Reasonable and Probable Grounds Standard

[21] In considering whether reasonable and probable grounds existed, I consider R. v. Grant, 2014 ONSC 1479, [2014] O.J. No. 1143 S.C.J., wherein Durno J. referred to R. v. Bush (2010), 2010 ONCA 554, 259 C.C.C. (3d) 127 as follows:

"54 Whether reasonable and probable grounds exist is a fact-based exercise dependent upon all the circumstances of the case. The totality of the circumstances must be considered: see Shepherd, at para. 21; R. v. Rhyason, [2007] 3 S.C.R. 108, 2007 SCC 39; R. v. Elvikis, [1997] O.J. No. 234, 31 O.T.C. 161 (Gen. Div.), at para. 26; Censoni, at para. 47. That an accident occurred, including the circumstances under which it occurred and the possible effects of it, must be taken into account by the officer along with the other evidence in determining whether there are reasonable and probable grounds to arrest for impaired driving. Consumption plus an unexplained accident may generate reasonable and probable grounds although that may not always be the case: Rhyason, supra, at para. 19.

56 An assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of an impaired driver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are present and which are absent as the essential test. There is no mathematical formula with a certain number of indicia being required before reasonable and probable grounds objectively existed: Censoni, at para. 46. The absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding of reasonable and probable grounds based on the observed indicia and available information: R. v. Costello, [2002] O.J. No. 93, 22 M.V.R. (4th) 165 (C.A.), at para. 2; Wang, at para. 21.

57 Consideration of the totality of the circumstances includes the existence of an accident. However, that the accident could have caused some of the indicia relied upon when they could also have been caused by the consumption of alcohol does not mean the officer has to totally eliminate those indicia from consideration: R. v. Duris, [2009] O.J. No. 4403, 2009 ONCA 740, at para. 2. They have to be considered along with all the other indicia in light of the fact there may be another explanation…"

[22] I have already referred to R. v. Stellato (supra). Thereafter, Conrad J. in R. v. Andrews, 1996 ABCA 23, [1996] 104 C.C.C. (3d) 392, (Alb. C.A.) stated at para. 16:

"16 Stellato approves the principle that a conviction on a charge of impaired driving can be founded on proof beyond a reasonable doubt of slight impairment of the ability to drive. If the ability to operate a motor vehicle is impaired (even slightly) by alcohol or drugs, it is not necessary that the degree of that impairment be marked."

Conclusion

[23] I have taken into consideration all observation of conduct and the entire collection of circumstances even before police involvement. I have also considered Officer Malhi's observations of Mr. Hackman even before engaging him in conversation. The civilian witnesses testified clearly and were unshaken on the essential material issues. They were in a position to offer the best evidence as it related to the accident and their observations of Mr. Hackman as the driver of the vehicle that collided with their SUV. I found Ms. Wauchope and Ms. Smith to be truthful and believable. I am satisfied reasonable and probable grounds existed. Accordingly, the Charter application fails.

[24] I adopt the language of Takach J. in R. v. Varcoe, [1992] O.J. No. 3833 (O.C.J.) where, in dealing with a trial of impaired driving causing bodily harm, he stated at para. 12 as follows:

"Each of the pieces of evidence, standing alone, may not be indicative of operating a motor vehicle while one's ability to do so is impaired by the consumption of alcohol. The totality of the evidence, however, establishes that fact to a moral certainty."

[25] In conclusion, I am satisfied beyond a reasonable doubt that the Crown has established all of the essential elements of the charge of Impaired Driving and there will be a conviction.

Released: August 24, 2016

Signed: Justice J. M. Grossman