Court Information

Ontario Court of Justice

Date: 2016-10-31

Court File No.: Brampton # 15-10346

Parties

Between:

Her Majesty the Queen

— AND —

Rachelle Brown

Judicial Officer and Counsel

Before: Justice P. F. Band

Heard on: June 22 and 23, 2016

Reasons for Judgment released on: October 31, 2016

Counsel:

• Mr. R. Lemke — counsel for the Crown
• Mr. K. Marynick — counsel for the accused Ms. Rachelle Brown

BAND J.:

I. Introduction and Procedural Background

[1] On August 16, 2015, Ms. Brown was charged with operating a motor vehicle while her ability to do so was impaired by alcohol and while her blood alcohol content was "Over 80." The trial took place before me on June 22 and 23, 2016. Charter concerns raised by the defence were blended into the trial. The Crown's case comprised the evidence of three officers:

• Inspector Barry Leslie, who conducted the traffic stop on Ms. Brown;
• PC Rayon Walker, who attended the scene, arrested Ms. Brown and demanded that she provide samples of her breath into an Approved Instrument; and
• PC Tyrus Darcy, a qualified breath technician, who took the breath samples.

[2] Ms. Brown did not testify or call any evidence.

[3] After hearing brief oral submissions, I requested that the parties file further submissions in writing. In doing so, I put a number of questions to them. Because the defence's initial written submissions did not respond to all of those questions, I wrote to the parties requesting that they do so. I received complete submissions on September 26.

[4] I am thankful to both counsel for their clear and well-reasoned written work.

II. The Issue: Reasonable and Probable Grounds

[5] As a result of defence counsel's focused approach at trial, the only issue is whether PC Walker had sufficient grounds to make the arrest and breath demand. If so, then the Crown's case on both counts is made out based on all the evidence. If not, then the question is whether the evidence that followed the events at the roadside ought to be excluded.

[6] The defence pointed to purported inconsistencies between the evidence of Insp. Leslie and PC Walker and some alleged omissions in each of their notes relative to their own trial testimony.

[7] The issue boils down to their credibility and/or reliability.

[8] A brief summary of the evidence is necessary to allow for a proper understanding of the issue and my analysis of it.

III. The Evidence at Trial

A. Brief Overview

[9] Insp. Leslie has been a Peel Regional police officer for over 27 years. As a Duty Inspector on August 16, 2015, his job was to be available to assist in large scale calls in the Region.

[10] Shortly before 10 p.m., he was driving on Hurontario Street in Mississauga. It was dark and the streetlights were on. It was then that he noticed Ms. Brown driving with her headlights off. From his car, he could also detect the smell of burning rubber. As he maneuvered to get a better look, he saw sparks coming from the front right wheel rim of Ms. Brown's car. The tire was completely gone.

[11] He activated his emergency equipment and she pulled over without incident. After a brief investigation, he decided to call for another officer with a roadside screening device ("ASD"). PC Walker arrived a short while later, and Insp. Leslie handed the investigation over to him.

[12] A short time later, PC Walker formed the opinion that Ms. Brown's ability to operate a motor vehicle was impaired by alcohol. He arrested her and demanded that she provide breath samples.

[13] At the station, Ms. Brown provided two breath samples resulting in readings of 255 and 245 mg of alcohol in 100 ml of blood, respectively.

[14] Between the two samples, Ms. Brown also agreed to participate in a number of Standard Field Sobriety Tests. These, along with the breath testing, were captured on video. Her performance was very poor.

B. Evidence of the Officers at the Roadside

Inspector Leslie – in-chief

[15] Insp. Leslie testified in-chief that Ms. Brown was looking straight ahead when he approached her car. He tapped on her window to get her attention, and she lowered it. He told her he had pulled her over because her headlights were off and her front right tire was missing. She replied "What? I can see fine. What do you mean I have no lights? Teach me how do I turn them on?"

[16] He also noticed that her left foot was resting on an iPad in the foot well.

[17] He asked her for her documents. She handed him the owner's manual. Several documents fell out of a folder she had retrieved. When he asked her for her driver's license, she dumped the contents of her purse onto the passenger seat, located her wallet and removed her driver's license.

[18] He asked her if she had been drinking. She said "no, not at all."

[19] It was then that he called for an ASD. He then explained to her that he suspected that she had been drinking and that a test would be administered to see if that was so. He did not make a formal breath demand, since he had not done so in years and did not have the precise wording at his fingertips.

[20] While he did not believe Ms. Brown's answer that she had not been drinking, he did not feel that he had reasonable and probable grounds to arrest her for impaired driving. But, given what he had observed, he "thought there must have been something else going on."

[21] When PC Walker arrived, Insp. Leslie told him what he had observed: that he had seen the sparks coming from the wheel, that her foot was on an iPad and that she had fumbled with her documents.

[22] Then, he asked Ms. Brown to step out of her car so that he could show her the front wheel. She was talking on her cell phone at the time. He saw "how unsteady she was on her feet" and then felt that he had reasonable and probable grounds to arrest her for impaired driving.

Insp. Leslie – cross-examination

[23] Insp. Leslie confirmed that in his evidence in-chief, he had testified that he told PC Walker about the following:

• Ms. Brown had been driving without a front right tire;
• The headlights were off; and
• Her left foot was resting on an iPad

[24] He then added "I don't recall what else I told him."

[25] Concerning Ms. Brown's unsteadiness, Insp. Leslie responded that "she was very unsteady where she used the car to support her balance once we got to the passenger side."

[26] Defence counsel suggested to him that this detail was not in his notes. His response was that he had an independent recollection of it. Later in the cross-examination, it became clear that Insp. Leslie's notes included the following: "observe her on cell unsteady on her feet."

[27] Insp. Leslie acknowledged that he had no explanation for why his notes did not mention Ms. Brown needing to support her balance on her car, but he disagreed that his evidence on that point was unreliable. Rather, he explained that because he stops very few motor vehicles and even fewer impaired drivers, the details remained fresh in his mind. As he saw it, being unsteady on one's feet and needing the car to steady oneself were two sides of the same coin.

PC Walker – in-chief

[28] PC Walker testified that when he arrived at the scene, Insp. Leslie and Ms. Brown were already standing on the curb outside Ms. Brown's car. He pulled up behind Insp. Leslie's car, and Insp. Leslie walked over to meet him between the two cars. Insp. Leslie told him that he had stopped Ms. Brown because her headlights were off, there was a smell of burnt rubber and sparks were coming from the front passenger wheel well. Insp. Leslie also told him that he had detected "a slight odour of an alcoholic beverage" and that he required an ASD.

[29] PC Walker then walked over to Ms. Brown, who was on the sidewalk talking on her cell phone. She was 2-3 feet from the side of her car. While he explained the ASD process, he smelled a slight odour of an alcoholic beverage and saw that she had red-rimmed eyes. He saw that she was unsteady on her feet. She stumbled with her back toward her car. It was "kinda like she tripped and fell backwards." At that point, he formed the opinion that her ability to drive was impaired by alcohol and arrested her.

[30] PC Walker sat-in on the breath testing procedure. Before playing the video, the Crown asked him about his observations. He said that he recalled Ms. Brown swaying back and forth during the test, but he could not recall if she was sitting or standing when she did so.

[31] Having been present during the testing, and having viewed the video, PC Walker testified that he believed that Ms. Brown was in fact impaired by alcohol at the time.

PC Walker – cross-examination

[32] Counsel pressed PC Walker as to what Insp. Leslie had conveyed to him. In particular, he asked about the "slight odour" of alcohol. PC Walker disagreed with the suggestion that Insp. Leslie had not told him about such an odour. He recalled Insp. Leslie telling him about that.

[33] In the ensuing exchange about what Insp. Leslie had told him, PC Walker testified that he himself had smelled the odour of alcohol coming from Ms. Brown's breath. Counsel suggested to him that he had not specified the odour's origin when he testified in-chief, and that that detail was not in his notes. PC Walker explained that when he is speaking with a single individual, he does not commonly note that the odour comes from their breath. He knows who he is speaking with. If he makes a note of an odour of alcohol in those circumstances, it is that he believes it comes from their breath.

[34] The tenor of the cross-examination on these points was, at least in part, that PC Walker had recently fabricated this evidence.

[35] When asked to list his grounds, PC Walker identified the following:

• What Insp. Leslie had conveyed to him (headlights were off, sparks coming from the front wheel, smell of burnt rubber, slight odour of an alcoholic beverage);
• The odour of an alcoholic beverage that he smelled;
• Ms. Brown's red-rimmed eyes; and
• Ms. Brown stumbling into her car.

IV. The Test for Reasonable and Probable Grounds

[36] The Crown bears the burden of proving, on a balance of probabilities, that the warrantless seizure of Ms. Brown's breath samples was based on reasonable and probable grounds.

[37] The Ontario Court of Appeal described the test for reasonable and probable grounds in R. v. Bush, 2010 ONCA 554 as follows:

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… The officer's belief must be supported by objective facts... 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.

[38] In the context of impaired driving investigations, "[t]he test is whether, objectively, there were reasonable and probable grounds to believe the suspect's ability to drive was even slightly impaired by the consumption of alcohol." It is not an onerous test.

V. The Defence's Argument

[39] Defence counsel made the following arguments.

Smell of alcohol/contradiction/recent fabrication

[40] Insp. Leslie never smelled alcohol and never formed reasonable and probable grounds to make a breath demand, yet PC Walker testified that he received grounds – including the odour of alcohol – at the scene. This, he says, is contradicted by Insp. Leslie. In oral argument, this issue was characterized as being in the nature of a recent fabrication.

The stumble

[41] Defence counsel also submitted that PC Walker's account of where he, Insp. Leslie and Ms. Brown were when he saw her lose her balance was contradicted by Insp. Leslie's evidence. He added that I should draw an adverse inference from the fact that Insp. Leslie testified about a "stumble" which he had not noted. For this proposition, he cited R. v. Zack, 1999 O.J. No. 5747.

Collateral unreliability

[42] In oral argument, Defence counsel also urged me to find that PC Walker was unreliable because he was unable to recall whether Ms. Brown was seated or standing when she was swaying in the breath room.

[43] Finally, he urged me to find that PC Walker's evidence is unreliable to the extent that it diverged from Insp. Leslie's.

VI. Analysis

Smell of alcohol/contradiction/recent fabrication

[44] I am not persuaded by this argument. It is true that Insp. Leslie did not testify in-chief that he smelled an odour of alcohol in his investigation. But that does not mean that he did not detect that odour. Neither party asked him about it. There is no contradiction per se.

[45] As was discussed during oral submissions, the argument that PC Walker recently fabricated his testimony that Insp. Leslie told him about an odour also fails. On the breath room video, when PC Walker is relaying his grounds to the breath technician, he attributes such an observation to Insp. Leslie.

The stumble

[46] The testimony of Insp. Leslie and PC Walker differs as to where Ms. Brown was when PC Walker arrived. On Insp. Leslie's account, she was still in her car. On PC Walker's, she was standing near her car with Insp. Leslie. But they both indicated that they had a conversation with each other prior to seeing Ms. Brown lose her balance. They also both indicated that she was on her cell phone at the time.

[47] I am satisfied that both officers were describing the same event: Ms. Brown stumbling when she was standing near her car while talking on her cell phone. While their accounts are somewhat different, I do not find them to be contradictory.

[48] Moreover, I do not draw an adverse inference against Insp. Leslie's credibility because he omitted some details in his notes. I accept his explanation that because his involvement in such investigations is rare, this one stood out in his mind. I believed him that he retained an independent recollection of Ms. Brown stumbling.

Collateral unreliability

[49] That PC Walker could not remember whether Ms. Brown was seated or standing when she was swaying in the breath room has no bearing on my assessment of the reliability of his earlier observations. At the roadside, he had taken over an investigation into a possibly impaired driver. At the station, he was a passenger in PC Darcy's investigation.

Credibility and Reliability Generally

[50] I found PC Walker's evidence to be credible and reliable. I believed him that Insp. Leslie had related the odour of alcohol to him, among other things. PC Walker's description of the circumstances surrounding Ms. Brown's loss of balance was detailed and reliable.

[51] I also accept his explanation of his note-taking concerning the odour of alcohol when dealing with a single individual at the roadside. Certainly, one is tempted to recommend that he use more specificity in the future; however, one must also remember that PC Walker is an experienced officer, this was an impaired driving investigation at the roadside and time was of the essence.

VII. Conclusion

[52] I have listed PC Walker's grounds above at para. 35.

[53] Subjectively, he believed that Ms. Brown's ability to drive was impaired by alcohol.

[54] Objectively, that belief was more than reasonable in light of the facts at his disposal. In my view, an officer could have reasonably arrived at that opinion prior to seeing Ms. Brown stumble. A belief that someone's ability to drive is impaired by alcohol when they appear unaware that they are driving on a metal wheel rim and that their headlights are off (to say nothing of the smell of burnt rubber and the iPad beneath their foot) is virtually inescapable the moment the odour of alcohol becomes apparent.

[55] The Crown has discharged its burden. The arrest and breath demand were Charter compliant and the evidence that flowed from Ms. Brown's arrest is admissible.

[56] Therefore, I am satisfied beyond a reasonable doubt that she is guilty of both offences as charged.

Released: October 31, 2016

Signed: Justice P. F. Band