Court File and Parties

Court File No.: 3711-16-0681 Date: November 1, 2016 Ontario Court of Justice

Between: Her Majesty the Queen

-and-

David Andrew Munro

Before: Justice Michael G. March

Heard: October 4, 2016

Reasons for Judgment Released: November 1, 2016

Counsel:

• Caitlin Downing, Counsel for the Crown
• Brett McGarry, Counsel for the Accused

Introduction

[1] Mr. Munro stands charged that on or about May 28, 2016, he did operate a motor vehicle while the concentration of alcohol in his blood exceeded 80 milligrams per 100 millilitres of blood, and further that he did operate a motor vehicle while his ability to do so was impaired by alcohol.

Evidence

[2] On agreement of Crown and defence, this matter proceeded by way of a blended voir dire/trial.

Michael Turner

[3] In the early morning hours of May 29, 2016, a suspected impaired driver came to the attention of Michael Turner, an employee of the Antrim Truck Stop near Arnprior. The driver and another male companion entered the store around 5:00 a.m. Mr. Turner did not see the males arrive. He did observe the male, who later drove away, for a period of 4 to 6 minutes while he was buying a pack of cigarettes.

[4] Mr. Turner testified that the driver was glassy eyed. He was slow in his manner of speech, as if he were concentrating on every word he spoke. He was swaying from side to side. Mr. Turner did not notice an odour of alcohol emanating from the driver, although his olfactory sense, he says, has been affected by his heavy smoking over the course of many years.

[5] The purchaser of the cigarettes, later observed to be the driver, was approximately 6 feet or 6 feet 1 inch and was wearing a blue ball cap. Mr. Turner described the driver as someone who ". . . definitely had a few. He had been drinking."

[6] Mr. Turner recalled that the driver went into the dining area of the truck stop, where he believed his companion was. Mr. Turner asked his co-worker to check on their shape. While he was outside, the man with the blue cap exited the store and entered a brown Dodge pick-up truck. His co-worker, Pam Lepage, commented to Mr. Turner, "He shouldn't be driving." Mr. Turner tried to get the licence plate of the brown pick-up. He then called police no later than 5:30 a.m. to report the suspected impaired driver, and provided the licence plate number of the pick-up. He used binoculars to assist in recording the plate number, which he wrote down on a piece of paper. He subsequently threw the piece of paper away.

[7] Mr. Turner commented that it took "three minutes plus" for the pick-up to back out and leave. It was really slow in doing so. The vehicle exited onto White Lake Road and turned toward the Town of Arnprior. The weather was quite nice. It was full daylight. Nothing obstructed Mr. Turner's ability to observe the path taken by the pick-up truck. He was concerned about where the vehicle was going, and did not pay attention to the driver's manner of walking. Mr. Turner had made up his mind that the driver was impaired. Mr. Turner did not make any noteworthy observations of the driver's passenger.

[8] Mr. Turner was not cross-examined.

Pamela St. Michael

[9] Pamela St. Michael arrived at work on May 28th, 2016 at 4:55 a.m. She is the Assistant Manager of the truck stop and also works there as a waitress. Later that morning, she saw two men enter the truck stop. One approached her and asked if he could order breakfast. This gentleman had nothing on his head. He wore a grey hoody. He was not very tall, approximately 5 feet 7 inches. He was clean shaven, weary looking and intoxicated by Ms. St. Michael's account. When she gave her statement to police, Ms. St. Michael thought he had been wearing a hat, but later, through looking at surveillance video at the store, she was able to conclude that the first of the two gentlemen entering who approached her did not have a hat. The investigating officer, when she tried to draw this fact to his attention later, said she could fix that when she went to court. She did.

[10] Ms. St. Michael did observe the second gentleman with the hat a while later. She knew both had been drinking. It was clear to her they needed to eat something. She went to put coffee on and to grab menus. Before she could return, the two gentlemen came toward her and one said, "We're going somewhere else."

[11] Ms. St. Michael commented around this time to her co-worker, Crystal Parkhurst, "All I can smell is booze. We should do something." She noted that the guy in the hoody was staggering. The guy in the hat looked at Ms. St. Michael and said, "He wants to go."

[12] Ms. St. Michael testified she was going to try to ask for their keys, but that the man in blue was already out at the truck standing at the driver's side.

[13] She recalled that it was a dark pick-up he was standing near. It was the middle of the night. The sun was not yet up.

[14] It was Ms. St. Michael's recollection that Ms. Parkhurst got the licence plate and Mr. Turner got on the phone right away.

[15] Ms. St. Michael saw the truck leave the parking lot. It left at a crawl, approximately 3 miles per hour or so. She started to panic and said to herself, "Oh my God, I hope the police are nearby."

[16] Ms. St. Michael did not see the two gentlemen get into the truck. She did not see where the gentleman with the hat was positioned. As it was still quite dark, she could only see silhouettes. She had no real interaction with the gentleman with the blue hat. She did not notice his physical state. She did however recall that there was an intense odour of alcohol when she spoke to both men in the restaurant area of the truck stop, as they were about two feet apart, but was unable to determine from whom the alcohol was coming. Her warning sign for the man in the hat was the intense smell of alcohol.

[17] In cross-examination, Ms. St. Michael clarified that she was mistaken about the guy in the hoody wearing a blue or grey hat. The person who had the hat was wearing blue, but there was no opportunity to make close observations. The interaction between the two men and her happened fast. It was a five minute thing. They were in and gone.

Constable Patrick O'Connor

[18] The Crown's final witness, Cst. O'Connor, had been employed by the Ontario Provincial Police for approximately one year, and had been "on the road" for a little over nine months when he started his twelve hour shift at 7:00 p.m. on May 28, 2016. At 5:07 a.m., on May 29, 2016 he received a call over the radio about a possible impaired driver. The call suggested that two males had been refused service, and had left in a brown pick-up truck. The caller to the police communication centre had provided a marker number (ie. the licence plate). The registered owner of the vehicle to whom the marker number was assigned was the accused, David Munro.

[19] At 5:10 a.m., Cst. O'Connor went to the address for the registered owner, 20 Vancourtland Street, Arnprior. Cst. O'Connor informed the other officers of his intention, while the other officers patrolled the area of the truck stop.

[20] At 5:12 a.m., Cst. O'Connor arrived at 20 Vancourtland Street and did not see the suspect vehicle. He parked across the street from 20 Vancourtland Street and waited on the road to keep watch.

[21] At 5:59 a.m., he observed the suspect vehicle travelling northbound at an estimated speed of 20 kilometers per hour from a distance of approximately 300 meters away. There were no other vehicles or traffic at this early time of day.

[22] When he initially observed the suspect vehicle, it had been travelling in the centre of the roadway, and as it approached Cst. O'Connor's location, it moved toward the east curb. The length of time Cst. O'Connor observed the vehicle was estimated to be 30 seconds.

[23] Cst. O'Connor exited his police cruiser upon seeing the suspect vehicle come to a stop. As he approached, he saw only one occupant, Mr. Munro. The accused put his vehicle in "park", turned it off and rolled down his window. Cst. O'Connor asked Mr. Munro if he had anything to drink. Mr. Munro responded, "No, I'm the D.D." Mr. Munro indicated as well that he had just dropped his friend off on Wilfred.

[24] At the driver's window of the suspect vehicle, Cst. O'Connor was able to observe an open bottle of beer within reach of Mr. Munro. Cst. O'Connor requested a driver's licence, a permit and an insurance card from Mr. Munro. The accused was slow in his movements as he looked for the driving documents through the interior of his car and his pants' pockets. He advised Cst. O'Connor he did not have a wallet or any I.D., but he did identify himself as David Munro. He then located in the glove box his permit and insurance card in a plastic sleeve. He tried to pass them to Cst. O'Connor. Cst. O'Connor asked Mr. Munro to take them out of the sleeve. Mr. Munro had difficulty getting them out.

[25] Once the documents were surrendered, and upon observation of the unsealed bottle of beer, Cst. O'Connor read an approved screening device (ASD) demand to Mr. Munro from his LE200 card.

[26] The demand was made at 6:02 a.m. At 6:04 a.m., Cst. O'Connor explained to Mr. Munro the functioning of the ASD. As well, Cst. O'Connor performed a self-test, and showed the result to Mr. Munro. At 6:05 a.m., Mr. Munro provided a sample of his breath into the ASD. It registered an "F" result. Mr. Munro was shown the result and was then arrested by Cst. O'Connor.

[27] At 6:10 a.m., Mr. Munro was placed in Cst. O'Connor's police vehicle. He was read his rights to counsel. When asked if he wished to contact counsel, Mr. Munro said "Not at this moment." Mr. Munro was then cautioned and he expressed a desire not to say anything in answer to his charge. At 6:12 a.m., Cst. O'Connor read a second breath demand to Mr. Munro.

[28] Cst. O'Connor noted that the vehicle operated by Mr. Munro was a brown Dodge Ram pick-up that had been well used. The plate no. was "AM79858."

[29] In describing the interaction he had with Mr. Munro in the early morning of May 29, 2016, Cst. O'Connor testified that:

1. Mr. Munro was speaking and responding very slowly;
2. he had a very strong odour of alcohol on his breath;
3. his eyes were bloodshot;
4. other than removing his documents, Mr. Munro had no problems with his motor skills; and
5. his movements were slow and deliberate.

[30] Based on an assessment of those enumerated factors, Cst. O'Connor stated that this confirmed for him that Mr. Munro was intoxicated, or that he had been drinking.

[31] By 6:00 a.m., Cst. O'Connor had formed his suspicion that Mr. Munro had been drinking.

[32] Cst. O'Connor received his training on the ASD at the Ontario Police College in December 2015. He was aware of the phenomenon of "mouth alcohol." He understood he should wait 15 minutes before administering an ASD test if he believed that the accused had been drinking in the 15 minutes prior to an ASD demand being made. He knew mouth alcohol could skew a reading, and thus could give a false result on the ASD. Cst. O'Connor did not ask Mr. Munro when he had his last drink. Mr. Munro, when asked if he had any alcohol to drink, had stated, "No, I'm the D.D."

[33] Cst. O'Connor believed that the ASD was operating properly. He tested it at the beginning of his shift to his satisfaction. He knew the ASD to have been last calibrated on April 28, 2016 and last tested for accuracy on May 27, 2016. Accordingly, he believed that any test result obtained on the ASD would be accurate and reliable.

[34] The presence of an open beer bottle in Mr. Munro's vehicle did not affect his belief regarding the accuracy and reliability of the ASD. Mr. Munro did not say anything about any recent consumption of alcohol on his part. Cst. O'Connor believed that following the registration of the "F" result on the ASD, Mr. Munro had a blood alcohol concentration of greater than 100 milligrams of alcohol in 100 milliliters of blood.

[35] Cst. O'Connor was informed that the closest detachment where further breath testing could be conducted on Mr. Munro was in Kanata. He left to go there at 6:17 a.m. He arrived at the Kanata detachment of the O.P.P. on Eagleson Road at 6:50 a.m. There was a stop of approximately 30 to 45 seconds duration along the way to allow Cst. Doby, who attended at the scene of the arrest and who accompanied Cst. O'Connor to Kanata, to drop his police vehicle off at the Arnprior detachment.

[36] At 6:53 a.m., rights to counsel were read again at the Kanata detachment to Mr. Munro. On this occasion, Mr. Munro indicated a desire to speak to counsel, and he did so somewhere between 7:05 a.m. and 7:14 a.m.

[37] At 7:14 a.m., Mr. Munro was turned over to a qualified technician, Cst. Bigford. Cst. O'Connor did note that Mr. Munro was wearing a blue ball cap with a Toronto Blue Jays insignia on it.

[38] At 7:49 a.m., Cst. Bigford returned Mr. Munro to Cst. O'Connor's custody. Cst. O'Connor opined that Mr. Munro was impaired by alcohol. Cst. O'Connor did not believe he could charge Mr. Munro with the offence of impaired driving, if he had already laid a charge of 'over 80'. Cst. O'Connor understood later that an impaired charge could be laid based on the totality of his interaction with the accused.

[39] Upon cross-examination, Cst. O'Connor acknowledged the importance of good 'note-taking' on the part of a police officer. He agreed he had only arrested Mr. Munro for an 'over 80' offence. His grounds for charging Mr. Munro with impaired were formed afterwards. He conceded as well that the "F" result was the chief ground for his arrest of Mr. Munro for the 'over 80' offence.

[40] Cst. O'Connor confirmed that Mr. Munro was arrested at 6:05 a.m., and not released from police custody until 10:50 a.m. from the Arnprior detachment. Equally, Mr. Munro was handcuffed for the trip from Arnprior to Kanata, and for the return trip from Kanata to Arnprior as well.

[41] Cst. O'Connor agreed that at 6:00 a.m., he saw an unsealed bottle in Mr. Munro's pick-up truck, but did not make any observations about its contents.

[42] Cst. O'Connor testified that he was not aware that other officers on scene were searching Mr. Munro's truck at the time Mr. Munro and he were dealing with compliance with the ASD demand. Cst. O'Connor did recall that the other officers were on scene when Mr. Munro was physically blowing into the ASD, some 40 metres away from where Mr. Munro's truck was parked.

[43] Cst. O'Connor, under cross-examination, reiterated that his grounds for the ASD demand were:

1. the report of an impaired driving complaint made to the police communication centre implicating Mr. Munro's vehicle;
2. the odour of an alcoholic beverage on Mr. Munro's breath, and
3. his bloodshot eyes.

[44] Cst. O'Connor agreed he did not believe Mr. Munro when he claimed to have been a D.D. Cst. O'Connor did not give any thought to delaying the administration of the ASD test. He believed at the time the test was done that Mr. Munro had alcohol in his system, which could not possibly have been caused by 'mouth alcohol'.

[45] Under re-examination, Cst. O'Connor was candid in stating he did not give any consideration to mouth alcohol as a basis for delaying ASD testing. He was a newer police officer. It was his first impaired case. The thought of delaying such testing simply did not come to mind.

[46] Cst. O'Connor explained his thinking as follows:

1. Mr. Munro indicated to me he did not have anything to drink at my initial contact with him.
2. I did not give any further thought to the possibility he had consumed alcohol within the previous 15 minutes.
3. I made no assumption that the alcohol container I observed in the vehicle belonged to him.

Certificate of a Qualified Technician (Exhibit #1)

[47] On consent of the defence, the Crown filed a Certificate of a Qualified Technician, which was marked as Exhibit Number 1. The Certificate proves that at 7:26 a.m. on May 29, 2016, the first sample of breath taken from Mr. Munro, when analyzed by the approved instrument, an Intoxilyzer 8000C, resulted in a truncated reading of 190 milligrams of alcohol in 100 milliliters of blood. The second sample taken at 7:48 a.m., May 29, 2016 resulted in a truncated reading of 180 milligrams of alcohol in 100 milliliters of blood.

The Toxicology Letter of Opinion dated September 29, 2016 from Betty Chow, M.Sc., of the Centre for Forensic Sciences (Exhibit #2)

[48] I have reviewed the letter of Ms. Chow dated September 29, 2016. It is of no value to this Court. It sets out a hypothetical premise that if two of the containers of alcohol found in Mr. Munro's vehicle had been consumed in the 15 minutes prior to him being stopped by police, his blood alcohol concentration between 5:30 a.m. and 6:00 a.m. on May 29, 2016 would still have been between 120 and 145 milligrams of alcohol in 100 milliliters of blood. There was no evidence elicited to suggest such a pattern of consumption on the part of Mr. Munro. Without a factual foundation for Ms. Chow's opinion, this Court cannot arrive at any conclusion regarding an adjusted blood alcohol concentration for Mr. Munro between 5:30 a.m. and 6:00 a.m. on May 29, 2016.

[49] At the conclusion of the Crown's case, the defence opted to call no evidence.

Issues

[50] Firstly, the defence contends that Mr. Munro's Charter rights under Sections 8 and 9 were violated because the arresting officer, Cst. O'Connor, did not turn his mind to the reasonable possibility of mouth alcohol at the time the ASD demand was made of Mr. Munro. Accordingly, the defence seeks pursuant to Section 24(2) of the Charter the exclusion of all evidence following the alleged, unreliable "F" result obtained by Cst. O'Connor, which fundamentally grounded his power to arrest Mr. Munro.

[51] The defence concedes that if there is no Charter breach, the 'over 80' offence has been made out.

[52] Secondly, the defence argues that the evidence of the accused's alleged impairment to operate a motor vehicle was weak and wanting. The impaired charge was the result of discussions Cst. O'Connor had after the fact with other police officers and the Crown. Further, no satisfactory I.D. evidence exists to definitively point to Mr. Munro as being the driver among the two males observed by Mr. Turner and Ms. St. Michael at the Antrim Truck Stop.

[53] On the Charter issues, the Crown contends firstly that there was no duty on Cst. O'Connor to inquire when Mr. Munro had his last drink. Cst. O'Connor had the requisite grounds to suspect Mr. Munro had alcohol in his body. The officer thus made a demand to have Mr. O'Connor supply a sample of his breath into an ASD. The officer reasonably believed in the accuracy of the "F" result obtained. Accordingly, there is no Charter breach under sections 8 and 9.

[54] Secondly, the Crown argues that it need only prove beyond a reasonable doubt that Mr. Munro's ability to drive was even slightly impaired by alcohol. That proof can be found in observations of the accused, as well as all of the surrounding circumstantial evidence to determine whether impairment of the ability to drive has been proven beyond a reasonable doubt.

The Applicable Law

[55] In R. v. Einarson, [2004] O.J. No. 852, Doherty J.A., speaking for the unanimous three member panel of the Court of Appeal for Ontario, dealt with the issue of "mouth alcohol". Police stopped Ms. Einarson shortly after she drove out of the parking lot of a bar. She made a U-turn to avoid a RIDE spot check. She had the odour of alcohol on her breath. Her eyes were red and glassy. Her speech was slightly slurred. When asked twice by police if she had consumed alcohol, Ms. Einarson denied having done so.

[56] The investigating officer did not delay making the ASD demand, nor administering the test under the circumstances. Ms. Einarson failed.

[57] As explained by Doherty J.A. at Paragraphs 14 and 15:

[14] "A police officer who has cause to make a demand under s. 254(2) must administer the test "forthwith" if the detention is to remain within constitutionally permissible limits. At the same time, it is well known by police officers that where a driver has consumed alcohol in the 15 to 20 minutes before the test is administered, the result of the test may be unreliable because of the presence of residual mouth alcohol. The whole purpose of administering the test under s. 254(2) is to assist the officer in determining whether there are reasonable and probable grounds to arrest the driver for a drinking and driving offence. If the officer does not, or reasonably should not, rely on the accuracy of the test results, it cannot assist in determining whether there are reasonable and probable grounds to arrest. Administering the test without delay in those circumstances would be pointless and would defeat the purpose for which the test is administered.

[15] In this case, Constable Williams was aware that if the respondent had been drinking within the 15 minutes preceding the making of the demand, the results of the test could be inaccurate. Officer Williams did not know when the respondent had taken her last drink. He knew it was possible that she had consumed alcohol within the 15 minutes preceding the demand. The question for the courts below and this Court is whether Constable Williams was entitled to rely on the results of the screening device test in deciding whether he had reasonable and probable grounds to arrest the respondent when he knew there was a possibility that the respondent had consumed alcohol within the 15 minutes prior to the administration of the test and that if she had, the result of the test could be inaccurate."

[58] In this case, I must decide whether Cst. O'Connor was entitled to rely on the result of the ASD test in deciding whether he had reasonable and probable grounds to arrest Mr. Munro.

[59] Doherty J.A. urges the use of a "flexible approach" in assessing whether to proceed forthwith or delay the taking of the ASD sample. At Paragraphs 27 to 29, he writes:

[27] "The flexible approach to the timing of the taking of the sample espoused by Sopinka J. demands a case-by-case analysis of claims that the demanding officer should have waited or should not have waited before administering the test. It focuses on the officer's belief as to the accuracy of the test results if the test were to be administered without any delay and the reasonableness of that belief.

[28] Sopinka J.'s application of the flexible approach to the facts in Bernshaw is found at p. 297 S.C.R., p. 226 C.C.C.:

In the present case, there is absolutely no evidence with respect to the timing of the respondent's last drink. That is, it is unknown whether any alcohol was consumed within a period of 15 minutes prior to the screening test. The police officer made no inquiry concerning how long it was prior to administering the screening test that the respondent last consumed alcohol. Without Constable Mashford having this knowledge, it is too speculative to assert that the screening device result was unreliable. Where the particular screening device used has been approved under the statutory scheme, the officer is entitled to rely on its accuracy unless there is credible evidence to the contrary.

(Emphasis added)

[29] The above-quoted passage has direct application to this case. As in Bernshaw, there was no evidence with respect to the timing of the respondent's last drink. Constable Williams had no idea when she had consumed her last drink, and the respondent did not testify or provide that information to Officer Williams. As in Bernshaw, it was "unknown whether any alcohol was consumed within a period of 15 minutes prior to the screening test". The assertion made in this case that the result of the test performed by Constable Williams could be unreliable is no less "speculative" than was the assertion in Bernshaw that the test result could be unreliable. In the circumstances based on the information he had, Constable Williams, like the officer in Bernshaw, was entitled to rely on the accuracy of the statutorily approved screening device and administer the test immediately so as to potentially minimize the detention of the respondent."

[60] Further, at Paragraphs 34 to 35, Doherty J.A. comments:

[34] "The flexible approach to s. 254(2) accepts that different officers may assess similar circumstances differently in deciding whether some brief delay in the administration of the s. 254(2) test is necessary. Indeed, the reasonable and probable standard must reflect the particular officer's assessment tested against the litmus of reasonableness. In considering whether to rely on test results absent some brief delay, one officer may give more significance to the fact that the driver was seen leaving a bar just before he or she was stopped (particularly where the driver admits drinking in that bar) than another officer might give to that fact. The first officer might delay the taking of the test for an appropriately short time while a second officer may proceed without delay. Neither officer has necessarily acted improperly. If the officer decides to delay taking the test and that delay is challenged at trial, the court must decide whether the officer honestly and reasonably believed that an appropriately short delay was necessary to obtain a reliable reading. If the officer decides not to delay the administration of the test and that decision is challenged at trial, the court must decide whether the officer honestly and reasonably believed that he could rely on the test result if the test was administered without any delay.

[35] Bernshaw makes it clear that the mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on the accuracy of the statutorily approved screening device. Where an officer honestly and reasonably concludes on the basis of available information that he can form no opinion as to whether the driver consumed alcohol within the prior 15 to 20 minutes, the officer is entitled to rely on the accuracy of the statutorily approved screening device and administer the test without delay. That is not to say that another officer might not assess the same situation differently and have legitimate concerns about the reliability of a test administered without a brief delay and act accordingly. In each case, the officer's task is to form an honest belief based on reasonable grounds about whether a short delay is necessary to obtain a reliable reading and to act on that belief."

[61] In R. v. Mastromartino, [2004] O.J. No. 1435, Durno J. presiding over a summary conviction appeal, addressed the selfsame issue of when police must delay obtaining the ASD sample out of concern for residual mouth alcohol. At Paragraph 23, Durno J. developed a helpful summary of relevant principles arising in such cases, namely:

1. Officers making ASD demands must address their minds to whether or not they would be obtaining a reliable reading by administering the test without a brief delay.
2. If officers do not, or reasonably could not, rely on the accuracy of the test results, the results cannot assist in determining whether there are reasonable and probable grounds to arrest.
3. Officers making ASD demands may briefly delay administering the test if, in their opinion, there is credible evidence which causes them to doubt the accuracy of the test result unless the test was briefly delayed.
4. Officers are not required to wait before administering the test in every case where a driver may have been in a bar shortly before being stopped. The mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on the accuracy of the screening device.
5. Whether or not officers are required to wait before administering the screening test is determined on a case-by-case analysis, focusing on the officer's belief as to the accuracy of the test results if the tests were administered without delay, and the reasonableness of that belief.
6. The fact the driver is observed leaving a bar is a relevant circumstance in determining whether it was reasonable for the officer to delay the taking of the test in order to obtain an accurate sample. However, officers are not required to ask drivers when they last consumed alcohol.
7. If the officer decides to delay taking the sample and that delay is challenged at trial, the court must decide whether the officer honestly and reasonably felt that an appropriately short delay was necessary to obtain a reliable reading.
8. If the officer decides not to delay taking the sample and that decision is challenged at trial, the court must decide whether the officer honestly and reasonably believed that he could rely on the test result if the sample was taken without delay.

[62] Most relevant to a determination of the issues in this case, Durno J. held that police are not required to ask when a suspected impaired motorist had his or her last drink. Further, if the ASD test is not delayed, the Court must decide whether the officer could reasonably rely on the result as a basis for arrest and further breath demand.

[63] In R v. Avila, [2010] O.J. No. 4888, Wake J. was dealing with a motorist who was stopped by police in a plaza where there were many licensed establishments. When asked about alcohol consumption, the accused admitted to having had two beers. The officer was left with the clear impression, "They had been consumed recently". Also, he was totally mistaken about the length of time needed to dissipate the effects of residual mouth alcohol. That is not our case. However, similar to our facts, the officer did not turn his mind to whether the ASD test should be delayed due to the presence of residual mouth alcohol. Wake J. concluded ultimately that there was a "distinct possibility" that the accused still had the residual effects of mouth alcohol, which might have affected the ASD test.

Was there a breach of Mr. Munro's Sections 8 and 9 Charter Rights?

[64] The uncontested evidence establishes that Mr. Munro was operating a motor vehicle shortly before 6:00 a.m. on May 29, 2016. Cst. O'Connor observed that operation over a period of 30 seconds or so. Cst. O'Connor had what he considered to be a match for the vehicle, a brown pick-up truck with a marker identical to the earlier reported one by a concerned caller who relayed that specific plate number to police. Cst. O'Connor had his suspect.

[65] The suspicion that Mr. Munro had alcohol in his body was confirmed when Cst. O'Connor briefly interacted with the accused. Cst. O'Connor asked Mr. Munro, upon approach to Munro's vehicle, if he had anything to drink. Mr. Munro responded, "No, I'm the D.D." Cst. O'Connor did not believe this. Mr. Munro was speaking very slowly. He had alcohol on his breath. The odour was strong. His eyes were bloodshot. He had difficulty locating and later removing his driving documents from a plastic sleeve which contained them. In general conversation with the officer, Mr. Munro's responses were slow. His movements were equally slow and deliberate. On a brief physical observation of Mr. Munro, Cst. O'Connor confirmed his belief that Mr. Munro had alcohol in his body. Within a minute or so, Cst. O'Connor formed that belief.

[66] Cst. O'Connor did notice a bottle of beer in Mr. Munro's vehicle. He was aware of the phenomenon of mouth alcohol. He knew he should wait 15 minutes before administering the ASD test if he believed Mr. Munro had been consuming alcohol within 15 minutes of being stopped. Cst. O'Connor did not ask when Mr. Munro had his last drink. To do so would have made no sense. Mr. Munro had claimed he was a D.D. Thus, Cst. O'Connor did not give any thought to the possibility that Mr. Munro had been recently consuming alcohol. The presence of the bottle, standing upright against the console, did not necessitate a belief by Cst. O'Connor that Mr. Munro had been consuming alcohol from it within the previous 15 minutes.

[67] As a result of earlier testing, and a self-test Cst. O'Connor conducted using the ASD he had in his possession on May 29, 2016, he believed the ASD was operating correctly when he made the ASD demand of Mr. Munro.

[68] At around 6:00 a.m., it is undisputed that Cst. O'Connor noticed an open bottle of beer within Mr. Munro's vehicle. It was also within reach of Mr. Munro. Cst. O'Connor did not make any observations with respect to its contents. However, the presence of the beer bottle did not affect Cst. O'Connor's belief that Mr. Munro had alcohol in his body, nor that Mr. Munro may have consumed alcohol within the 15 minutes prior to being stopped. This is so because Mr. Munro did not say he had been recently consuming alcohol. This is so, even though Cst. O'Connor did not believe Mr. Munro's claim that he was a D.D. The officer could disbelieve Mr. Munro that he was a D.D., and still reasonably believe he had not consumed alcohol within 15 minutes of being stopped.

[69] The defence argues that it is a reasonable and probable inference that Mr. Munro consumed alcohol shortly before the stop based on the evidence. Further, this is a permissible inference and more than mere speculation. But that is not the test.

[70] If an officer honestly and reasonably concludes on the basis of information available that he can form no opinion as to whether the driver consumed alcohol within the 15 to 20 minutes before being stopped, the officer is entitled to rely on the accuracy of the ASD and administer the test without delay (see Einarson, para. 35). Cst. O'Connor made no assumption the beer bottle belonged to Mr. Munro. He knew Mr. Munro had just dropped off a friend. It was open to Cst. O'Connor to reasonably conclude that Mr Munro had not consumed alcohol within the previous 15 to 20 minutes.

[71] In spite of his inexperience, Cst. O'Connor made no fatal error in deciding not to delay the test.

[72] Nor was there any overholding of Mr. Munro with his arrest for what police mistakenly believed was improper storage of ammunition, the discovery of which was made by officers not called as witnesses at trial. That arrest took place at the Kanata detachment at 7:01 a.m. on May 29, 2016. However, the first breath sample was not taken until 7:26 a.m. and the second at 7:48 a.m. The defence conceded during the trial that the samples were taken as soon as practicable. The detention was not prolonged as a result of an erroneous arrest. Mr. Munro had to wait for duty counsel to call back, having reconsidered his right to counsel at the detachment upon arrival at 6:52 a.m. He was put in touch with duty counsel at 7:05 a.m. – not an inordinate amount of time later. He was then turned over to the qualified technician at 7:14 a.m. having exercised his right to counsel. None of these brief periods of delay attract the scrutiny of the Court.

[73] At 7:49 a.m., Cst. O'Connor took Mr. Munro back into his custody. He was transported back to Arnprior while handcuffed. No evidence was offered about any serious discomfort caused by the handcuffing. The return drive would take approximately 40 minutes. 8:30 a.m. (the arrival time back at the Arnprior detachment) to 10:50 a.m. (the release time for Mr. Munro from police custody) seems long, but without evidence led by the defence in discharging its onus on a balance of probabilities that that amount of time constituted an arbitrary detention, I cannot find that it was.

[74] Mr. Munro was stopped at 5:59 a.m., arrested at 6:05 a.m. and released at 10:50 a.m. Thus he was in police custody for less than five hours with about 80 minutes devoted to driving to and from Kanata. All in all, I cannot find that the impugned police overholding is sufficient to amount to a section 9 Charter breach.

[75] Having found no misuse of the ASD, no overholding, and thus no breaches under sections 8 and 9 of the Charter, there is no need to embark upon a section 24(2) analysis under the Charter.

Impaired Driving

[76] The evidence of impaired operation on the part of Mr. Munro, to which the Crown points, is as follows:

a) Mr. Turner observed a man in a blue hat operating a Dodge pickup truck registered to Mr. Munro;

b) Mr. Turner believed the man was impaired based on slurred and slow speech, glossy eyes, slight unsteadiness on his feet and swaying;

c) extremely slow driving while backing out of the truck stop parking spot;

d) Pamela St. Michael detected an odour of alcohol coming from both the man in the blue hat and his companion, whom she corrected herself upon (i.e. the companion was not wearing a hat);

e) she wanted to get their keys;

f) she believed she needed to call the police when she became aware of their intention to drive;

g) she believed both men were impaired by alcohol;

h) Cst. O'Connor observed the same truck approximately one hour after it left the Antrim Truck Stop driving very slowly down the middle of Vancourtland St in Arnprior;

i) Cst. O'Connor approached and observed Mr. Munro wearing a blue ball cap;

j) Cst. O'Connor detected an odour of alcohol on Mr. Munro's breath;

k) Mr. Munro's eyes were bloodshot;

l) Mr. Munro had difficulty removing his driving documents from a plastic folder;

m) Mr. Munro's speech and movements were slow and deliberate;

n) during transport to the Kanata detachment, Mr. Munro was passing out in the back seat, and continually falling over to the side; and

o) Mr. Munro was unsteady on his feet at the detachment.

[77] I do not see that the evidence proffered by the Crown from Mr. Turner and Ms. St. Michael must single out and identify Mr. Munro as the purchaser of the cigarettes and the driver who left the truck stop. Mr. Turner's and Ms. St. Michael's information was sufficient to draw the attention of police to a pickup with a particular licence plate number. Cst. O'Connor located that vehicle. Thereafter, the observations made by Cst. O'Connor, quickly considered at the roadside, served to raise a suspicion that Mr. Munro was an impaired driver. Cst. O'Connor was clear. He would not have arrested Mr. Munro but for the "F" result obtained on the ASD. However, Cst. O'Connor was well within his right to continue his investigation and make further observations of Mr. Munro to decide whether to lay an impaired driving charge in addition to the 'over 80'. (see R. v. Thornton, [2015] O.J. No. 2013 (Summary Conviction Appeal), Labrosse J. at paragraphs 32-35).

[78] In R. v. Stellato, [1993] O.J. No. 18, Labrosse J.A. speaking for a unanimous Court of Appeal for Ontario stated:

"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."

[79] Irrespective of whether the Crown can connect the man stopped by Cst. O'Connor on Vancourtland St. as the same person who drove out of the Antrim Truck Stop, the physical observations made by Cst. O'Connor of Mr. Munro after his arrest are not so frail as to leave me with any reasonable doubt as to Mr. Munro's guilt. The earlier observations, namely:

a) a vehicle travelling very slowly down the middle of the road;

b) its driver with bloodshot eyes and the strong odour of an alcoholic beverage on his breath;

c) the driver having difficulty locating and handling his documents; and

d) the driver's speech and movements being slow and deliberate;

coupled with the later observations, namely:

e) continually falling over to the side in the cruiser on the way to the Kanata detachment;

f) falling asleep before arrival; and

g) unsteadiness on his feet at the detachment

establish Mr. Munro's guilt beyond a reasonable doubt that his ability to operate a motor vehicle was impaired by alcohol.

[80] To quickly recap, Mr. Munro was first observed by Cst. O'Connor travelling down the middle of the road, albeit at a low speed. When approached by the officer, he exhibited many of the classic signs of impairment by alcohol. The defence offers up innocent explanations for each sign, but considered as a whole, I am compelled to conclude that, by all signs, Mr. Munro's ability to operate his vehicle was impaired by alcohol.

[81] The defence argues that Mr. Munro was showing consideration for his neighbours by driving slowly down Vancourtland St. at approximately 6:00 a.m. on the morning in question. That does not explain why Mr. Munro was driving in the middle of the road. The inference I am inclined to draw is that he did so to avoid parked cars or curbs, should he drift from one side or the other. Mr. Munro was most likely creeping home knowing full well he was in no shape to drive, and was simply looking to avoid police detection.

[82] Further, Mr. Munro was not shocked awake by his arrest on May 29, 2016. One would have expected the usual worry and concern accompanying an arrest would have raised his level of consciousness, but it appears it did not. Mr. Munro was able to doze off in the cruiser on the way to Kanata.

Conclusion

[83] The defence conceded quite properly, given the admissibility of the Certificate of the Qualified Technician, that the 'over 80' offence had been made out, if Mr. Munro's Charter application proved unsuccessful. That being the case, Mr. Munro shall be found guilty on Count 2.

[84] With respect to Count 1, he shall be found guilty of impaired driving as well.

[85] The Crown can indicate which of the two findings of guilt ought to be stayed.

November 1, 2016

The Honourable Mr. Justice M. March