Ontario Court of Justice

Date: 23 September, 2016

Court File No.: 15-0789 Newmarket

Between:

Her Majesty the Queen

— AND —

Savoeun Oeur

Judgement

Before: Justice Joseph F. Kenkel

Heard: 23 September, 2016

Delivered: 23 September, 2016

Counsel:

• Ms. Jennifer Gleitman — counsel for the Crown
• Mr. Michael Pasquale — counsel for the defendant

KENKEL J.:

Facts and Charges

[1] Police received a 911 call about a possible impaired driver. They found the vehicle after it parked at a residence. The accused was charged with having care or control of his vehicle while his ability to operate the vehicle was impaired and while his blood alcohol level exceeded the legal limit.

[2] The parties agree that the Crown has proved the accused was in care or control as alleged and that his blood alcohol level was over 80 at the time. The following issues remain:

• Whether the Crown has proved the alleged alcohol impairment?
• Whether the demand for the breath samples was made without reasonable grounds contrary to s. 8 of the Charter?
• If there was an unlawful demand and a s. 8 breach, whether the breath test readings should be excluded pursuant to s. 24(2)?

Reasonable Grounds

[3] The burden is on the Crown to show reasonable grounds for the warrantless search. R v Haas, [2005] OJ No 3160 (CA) at para. 36. Section 254(3) requires that the officer subjectively have an honest belief that the suspect has committed an offence and objectively there must exist reasonable grounds for that belief. R v Sheperd 2009 SCC 35, [2009] SCJ No 35.

[4] The Crown has shown that Constable Swanson had ample evidence supporting his belief that the accused's ability to operate his vehicle was impaired. In addition to the evidence discussed below on the issue of impairment, the officer had received information about erratic driving from a citizen that gave rise to the investigation.

[5] The investigation moved quickly from the time the accused opened his car door to speak with the officer to arrest within 3 minutes. The reason for the speed though is plain – the accused showed signs of significant alcohol intoxication. Contrary to the suggestion in cross-examination, the officer was right not to administer an approved screening device test in that context.

Impairment

[6] Constable Swanson observed an odour of alcohol coming from the accused's breath. The accused had slurred speech throughout their interaction and was slow to respond at times. He was unsteady in balance and had to brace himself to get out of the vehicle. He showed problems with his fine motor skills when he retrieved his license. Once out of the vehicle the accused was extremely unsteady on his feet.

[7] In the police car the accused was unable to stay conscious through the arrest process. Despite being placed under arrest and handcuffed, he fell asleep or lost consciousness while the officer was reading the caution to him. There is no evidence of any circumstance other than advanced alcohol intoxication which reasonably could explain his inability to focus and stay awake while speaking with the officer.

[8] While the police did not observe the accused driving, there was circumstantial evidence that he'd been unable to complete even the simple task of parking. Driveways are rectangles and cars typically park parallel to those lines. PC Swanson noted that the accused's car had ended up parked on an angle across the driveway.

[9] Cross-examination showed that the accused's driver's license was dropped during the exchange with the officer and is not reasonably attributed solely to the accused's condition. However, leaving that one circumstance aside, even without the readings the evidence shows beyond a reasonable doubt that the accused's ability to operate the motor vehicle was significantly impaired by consumption of alcohol.

Conclusion

[10] The Crown has proved the breath samples were taken upon lawful demand with reasonable grounds. The applicant has failed to prove the s. 8 Charter breach alleged.

[11] The Crown has proved beyond a reasonable doubt that the accused had care or control of his vehicle while his blood alcohol level exceeded the legal limit and while his ability to operate the vehicle was impaired.

Released: 23 September, 2016

Justice Joseph F. Kenkel