Court Information
Court: Ontario Court of Justice
Date: 2016-11-09
Court File No.: Halton 15-766
Parties
Between:
Her Majesty the Queen
— AND —
Alexander Paul Deadman
Before the Court
Justice: Lesley M. Baldwin
Heard: March 17, 2016 and August 2, 2016
Reasons for Judgment Released: November 9, 2016
Counsel
For the Crown: L. Bandini
For the Defendant Alexander Paul Deadman: F. Fedorsen and A. Little
BALDWIN J.:
Charges and Proceedings
[1] Alexander Paul Deadman is charged with impaired driving and having a BAC over 80 on February 29th, 2015 in the Town of Oakville.
[2] The Crown proceeded summarily.
[3] Charter Applications alleging violation of s. 7, 8, 9 (two parts: 1st part - once the Officer stopped him he was under investigative detention; 2nd part - that the Officer did not have the grounds to stop the accused and ask him any questions to begin with), 10(a), 10(b) and 11(d)[1] proceeded in a blended fashion at trial. It is alleged that the Officer's grounds for arrest and grounds to demand a breath sample were obtained as a result of statutorily compelled statements which render all that evidence inadmissible. It is alleged that all the breaches took place prior to the time of arrest.
[4] The wording of the breath demand, cautions and rights to counsel were admitted at the outset of trial.
[5] The accuracy of the transcript of the 911 call made by civilian witness Sinisa Gavranovic (taxi driver) was admitted as accurate and marked as Exhibit #1 during the course of the trial.
[6] Identity was admitted during the course of the trial.
[7] There were no arguments as to the admissibility of the breath samples at the end of trial, subject of course to all the Charter rulings.
[8] There were no arguments as to the voluntariness of utterances made to the breath technician.
[9] Evidence on the Charter Applications and the trial-at-large were heard in a blended manner on consent.
[10] Mr. Deadman testified on the Charter Applications only.
Summary of the Testimony of Officer John McMullan
[11] Officer McMullan has been with HRPS since January of 2014. Prior to that, he was an Officer with the Royal Canadian Mounted Police in Manitoba beginning in November 2010.
[12] On Saturday February 28, 2015, he was on general patrol in uniform driving a marked cruiser in Oakville.
[13] At 2:38 a.m. he was aware that a 911 call had been made from a taxi driver regarding a motor vehicle collision. The caller stated that a male was in the driver's seat and he asked him if he wanted an ambulance and the male was declining ambulance assistance. The accident was on Trafalgar Road at the North Service Road and it had happened recently.
[14] This is a very busy road in Oakville and the car involved in the accident was blocking a live lane of traffic.
[15] Officer McMullan arrived on scene at 2:41 a.m.
[16] There was nobody in the vehicle. The damage to the front of the vehicle was severe and it was missing a tire.
[17] From a distance of approximately 50 feet away, he saw Mr. Deadman on the sidewalk speaking on a cell phone walking southbound. He was about halfway over the bridge continuing toward the off ramp for the QEW. There was no one else in the area.
[18] Officer McMullan pulled his cruiser beside Mr. Deadman who was walking.
[19] Officer McMullan turned on his lights. Mr. Deadman kept walking.
[20] Officer McMullan turned on his siren to try and get his attention. Mr. Deadman looked at him and then looked away and kept on walking.
[21] When Mr. Deadman reached the off ramp for the QEW, Officer McMullan pulled up his cruiser into the off ramp and blocked Mr. Deadman at the sidewalk. Then Mr. Deadman stopped walking, though he could have continued walking past the cruiser if he had chosen to do so.
[22] Officer McMullan believed that Mr. Deadman was related to the damaged vehicle and may have sustained some injuries.
[23] Officer McMullan got out of his cruiser and walked toward Mr. Deadman. Mr. Deadman stopped talking on his cell phone.
[24] Officer McMullan asked him if he was the person driving the vehicle and Mr. Deadman said he was. He said that he made a mistake, he was being an idiot and he was calling someone to pick him up.
[25] Based on what Mr. Deadman said, there appeared to be no reason why the single motor vehicle accident had occurred, other than driver error.
[26] Officer McMullan could smell the odour of an alcoholic beverage on his breath. His eyes were glossy and he had a blank stare, like he was seeing right past the Officer as he spoke to him.
[27] Mr. Deadman told Officer McMullan that he had been at two bars. He had been at a going away party for a friend who was moving to Italy.
[28] Mr. Deadman had been holding his cell phone, then he dropped it on the ground. He had a lot of trouble picking it up from the ground.
[29] Mr. Deadman said the he knew he had screwed up and that he is a crane operator and he needs his driver's licence and that he just wants to go home.
[30] Officer McMullan formed his reasonable and probable grounds to arrest for impaired operation and placed Mr. Deadman under arrest at 2:46 a.m.
[31] Mr. Deadman was searched and the keys to the motor vehicle were located and given to Officer Wozny who dealt with the vehicle and the Accident Report.
[32] Mr. Deadman was handcuffed and placed into the back Officer McMullan's cruiser. It was minus 12 degrees outside at the time.
[33] The notice upon arrest was read and understood at 2:51 a.m.
[34] The breath demand was read and understood at 2:51 a.m.
[35] Rights to counsel were read and understood at 2:52 a.m. Mr. Deadman declined to speak to counsel.
[36] The caution was read and understood at 2:53 a.m.
[37] Officer McMullan departed the scene for 20 Division in Oakville at 2:54 a.m.
En route to the station, Mr. Deadman started talking and basically repeated what he said earlier. He said that he was swerving all over the North Service Road and hit a snow bank while turning onto Trafalgar and that he had lost his wheel. He said that he hit something and then his vehicle stopped on Trafalgar Road. He was worried about his driver's licence because he is a crane operator and he needs it or he can't work. He had been on the phone to his ex-girlfriend's mother to pick him up from the scene of the accident.
[38] They arrived at 20 Division at 3:04 a.m.
[39] Mr. Deadman declined to speak to counsel at the station.
[40] At 3:10 a.m. Officer McMullan provided his grounds for arrest and the breath demand to Officer Bingham, the qualified breath technician.
[41] Breath testing was conducted.
[42] In cross-examination Officer McMullan agreed that he stopped Mr. Deadman because he wanted to speak to him and investigate if he was the driver involved in the accident.
[43] Officer McMullan testified that he was on scene three minutes after the dispatch call and Mr. Deadman was about 50 feet away from the accident walking away. He repeated that nobody else was in the area.
[44] From the time he stopped Mr. Deadman to determine if he was the driver to the time of arrest was about 5 minutes.
[45] Officer McMullan agreed that when Mr. Deadman was describing his driving before the accident he may have used the word 'drifting' instead of 'weaving'.
[46] In re-examination Officer McMullan testified that he was not aware of any other reports made by Mr. Deadman reporting the accident.
Summary of the Testimony of Sinisa Gavranovic
[47] Mr. Gavranovic has been a taxi driver in the Halton area for 5 years.
[48] He had been driving northbound on Trafalgar when he saw the car involved in the southbound lane in a live lane of traffic. As soon as he saw the car he called 911.
[49] He turned his taxi around and saw a male sitting in the passenger seat.
[50] He spoke to Mr. Deadman through his opened passenger window of the taxi. Mr. Deadman had exited the vehicle at the time. There was no one else around.
[51] Mr. Gavranovic asked Mr. Deadman if he was okay and he said that he was.
[52] Mr. Gavranovic told Mr. Deadman that he had called emergency and they were on their way. He told Mr. Deadman that twice.
[53] Mr. Gavranovic may have been at the scene for two minutes.
[54] In cross-examination, he stated that Mr. Deadman did not sound or look intoxicated to him.
[55] The transcript of Mr. Gavranovic's call to 911 was marked as Exhibit #1.
[56] The call starts at 2:35:26 and ends at 2:41:44.
[57] Mr. Gavranovic reports that he needs police because there is a vehicle involved in an accident just sitting in the middle of the road on Trafalgar right on top of the overpass of the QEW and there is a male sitting in the car. He can see the male moving in the car.
[58] Mr. Gavranovic tells the operator that he is going to turn around and try to park behind him with his lights on.
[59] Mr. Gavranovic tells the operator that he can see there is front end damage to the car.
[60] Mr. Gavranovic has an exchange with Mr. Deadman that is recorded in the 911 call transcript as follows:
Mr. Gavranovic: You okay there? You okay there? You okay?
Mr. Deadman: I just bashed my front here so.
Mr. Gavranovic: Okay well someone's coming. I actually called emergency actually. I wasn't sure what was going on.
Mr. Deadman: Okay.
Mr. Gavranovic: So someone's coming here.
Mr. Deadman: Okay.
Mr. Gavranovic: Do you need anything, you need anything?
Mr. Deadman: No I'm okay.
[61] Mr. Gavranovic went on to report that the damaged vehicle had no lights on and it could easily be hit. There was no one else around but the driver.
[62] Mr. Gavranovic tells the operator that he has to drive away because of the traffic.
[63] At the end of the call the dispatcher tells Mr. Gavranovic "We're there now".
Officer Wozny's Accident Report - On Consent
[64] The vehicle was inoperable.
Summary of the Testimony of Alexander Deadman – Charter Applications Only
[65] He is 24 years of age, single and works as a crane operator.
[66] Before the motor vehicle accident on February 28th, he had been at a pub on 6th Line. He left about 2 a.m. and was heading home.
[67] He had been driving around like an idiot and was drifting his car on the Service Road. He described it as a controlled skid.
[68] He hit some ice and his car skidded and hit the guardrail. He turned off his car. It was damaged and so was the guardrail. He decided it was unsafe to move his car because of the damage and the car was smoking.
[69] About 10 minutes after the accident a cab driver came by. Mr. Deadman was standing outside his vehicle when he spoke to him.
[70] The cab driver told him that he had called 911 and emergency services were on their way.
[71] He waited and no one came so he started walking to a service station to get out of the cold.
[72] Once the police showed up, he was going to report the accident.
[73] He was talking on his phone and had been walking for less than a minute away from his car when the cruiser cut right in front of him. He was calling his ex-girlfriend's mother to come and pick him up.
[74] He wanted to report the accident. He did not want to get into trouble.
[75] After the cruiser lights were flashing he took a few steps and the cruiser cut right in front of him and almost hit him.
[76] The Officer jumped out of the cruiser and asked him if he was operating the car and what had happened.
[77] Mr. Deadman testified that he told the Officer everything because he knew he had to report the accident.
[78] If the Officer had cautioned him first he would not have told him everything.
After he was given his rights to counsel he said he did not want to speak to a lawyer because he had already told the Officer everything and had screwed himself.
[79] After the Officer cautioned him, he continued to answer the Officer's questions because he had already told him everything.
[80] In cross-examination, Mr. Deadman said he did not call the police because the taxi driver told him that he had already called the police. He also referred to his phone as being almost dead.
[81] He does not recall the Officer putting on the siren.
[82] He agreed that he kept telling the Officer what happened after he was cautioned. He agreed that was a choice that he made.
[83] He agreed that he used his phone to try and get a ride. He thought he would report the accident and get a ride home.
[84] He was panicked and worried about the damage to his car and property. He did not think he was impaired.
[85] He has never had to report an accident in the past.
Applicant's Submissions of Charter Applications
[86] The Applicant submits that when Officer McMullan blocked Mr. Deadman from walking by using his cruiser, Mr. Deadman was under investigative detention.
[87] Mr. Deadman was not immediately told of the reason for the detention which violates s. 10(a) and s. 7.
[88] Mr. Deadman was not immediately given his rights to counsel or cautioned which violates s. 9 and s. 10(b).
[89] Accordingly, all utterances and observations of the Applicant before the arrest should be excluded.
[90] The Applicant further submits that all statements made to Officer McMullen were compelled statements as he knew he was required to report an accident to the police under the s. 199(1) Highway Traffic Act and, as such, they are inadmissible in this criminal proceeding.
[91] As a result, s. 8 has been violated and the breath results should be excluded.
Respondent's Submissions on Charter Applications
[92] The Respondent submits that after conducting a WD analysis, the Court should reject Mr. Deadman's evidence that he only spoke to Officer McMullan because he knew he was required to report the accident to police. Mr. Deadman's actions at the scene contradict his verbal testimony in this regard.
[93] Mr. Deadman did not use his cell phone to contact the police. He used it to try to get a ride home from the scene.
[94] Mr. Deadman knew that the taxi driver had called the police. That 911 call started at 2:35 a.m. and ended at 2:41 a.m. Officer McMullen was on scene at 2:41 a.m., just minutes after Mr. Deadman had been speaking to the taxi driver beside his car.
[95] Officer McMullen first saw Mr. Deadman walking away from his car.
[96] Mr. Deadman kept walking away despite the Officer using his lights to stop and talk to him and then his siren.
[97] The Respondent submits that the Applicant was not under detention as his movements were not restrained when Officer McMullan asked the question 'were you the driver?' Nor was the Applicant under detention when Officer McMullan asked questions to investigate the cause of the collision.
[98] These questions led to the grounds for a drinking and driving investigation and arrest, at which point Mr. Deadman was given all his rights and cautions.
[99] After being cautioned, Mr. Deadman continued to provide information to Officer McMullan en route to the station.
Findings of Fact
[100] I agree with and adopt the Crown's submissions in these Reasons for Judgment.
[101] The onus is upon the Applicant on a balance of probabilities with respect to all Charter Applications except for the s. 8 which rests upon the Crown.
[102] I reject Mr. Deadman's testimony that he spoke to Officer McMullan only because he knew he had to under the Highway Traffic Act. All his physical actions belie this testimony.
[103] He did not use his cell phone to report the accident to police. He used his cell phone to try to get a ride away from the scene. If his cell phone "was almost dead" as he testified, you would think his first call would be to police.
[104] He was walking away from the scene minutes after the taxi driver told him that emergency services were on the way. The reasonable inference is he was avoiding the police and did not want to report the accident.
[105] He was walking away from the scene when Office McMullan arrived. The reasonable inference is he did not want to speak to the police and report the accident.
[106] He continued to walk away from clear police presence despite the cruiser lights and siren being activated. The clear inference is he did not want to speak to police and report the accident.
[107] I reject his evidence that the Officer pulled his cruiser over in a manner that "almost hit him". That was never put to the Officer in a long cross-examination. It is inconsistent with the Officer's evidence and it is so exaggerated in all the circumstances that I find it to be untrue.
[108] Many Defence questions asked of Officer McMullan dealt with what may have happened if Mr. Deadman had decided to walk away. Mr. Deadman did not walk away. All of the Officer's answers were therefore based on hypothetical speculation and did not raise a reasonable doubt about the investigation of this single motor vehicle collision. Nor did they assist in assessing the alleged Charter violations.
[109] Mr. Deadman testified that if the Officer had cautioned him immediately upon being stopped, he would not have said anything.
[110] In an about-face in his testimony, he said he continued to talk to the Officer after being cautioned and after declining to speak to legal counsel because he made a choice to.
[111] I find as a fact that his statements to Officer McMullan prior to the arrest were not compelled statements and this Application is dismissed. [See R. v. Guenter, 2016 ONCA 572].
[112] I find as a fact that Mr. Deadman was not detained when he spoke to Officer McMullan prior to his arrest. As in R. v. Guenter (supra), the encounter between Mr. Deadman and the Officer took place during the initial accident investigation where Officer McMullan was trying to sort things out.
[113] "In the context of investigating an accident or a crime, the police, unbeknownst to them at that point in time, may find themselves asking questions of a person who is implicated in the occurrence and consequently, is at risk of self-incrimination. This does not preclude the police from continuing to question the person in pursuit of their investigation." (R. v. Guenter para 41)
[114] The Supreme Court of Canada has held in R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460 that Mr. Suberu was not detained until the moment of his arrest. The Court viewed the encounter with the police officer prior to Mr. Suberu's arrest as "of a preliminary or exploratory nature," where the officer was attempting to "orient himself to the situation that was unfolding in front of him," was in the "process of sorting out the situation," and was "engaged in a general inquiry and not yet zeroed in on individual as someone whose movements must be controlled." (para. 31-32)
[115] I find as a fact that Mr. Deadman's encounter with Officer McMullan occurred when the Officer was attempting to orient himself to an accident scene at which he had just arrived, trying to sort things out, and was engaged in a general inquiry with Mr. Deadman, the only person near the accident scene.
[116] In these circumstances, there was no requirement to give Mr. Deadman a caution or rights to counsel.
[117] All of his rights, breath demand, and cautions given after Mr. Deadman was arrested were done properly and were understood.
[118] Accordingly, there is no violation of s. 7, 9, 10(a), 10(b) of the Charter.
[119] All the utterances and observations before the arrest are properly admitted to form the Officer's grounds for the arrest, which was a lawful arrest, and a demand for breath samples. Accordingly there is no s. 8 violation.
[120] The utterance en route to the station can be used at the trial-at-large as they were post caution and after a decline to speak to counsel. The information Mr. Deadman provided was just a repeat of what he said before he was arrested.
[121] The utterances to the breath technician also can be used at the trial-at-large.
Summary of the Testimony of Officer Mark Bingham
[122] Officer Bingham was the qualified Intoxilyzer Technician operating the Intoxilyzer 8000C for Mr. Deadman's breath tests.
[123] Officer Bingham was already at 20 Division in Oakville when he was advised that his services were required at 2:47 a.m.
[124] He received Officer McMullan's grounds at 3:10 a.m. and took custody of Mr. Deadman at 3:17 a.m.
[125] He obtained the first suitable sample of Mr. Deadman's breath at 3:26 a.m. which resulted in a BAC reading of 155 milligrams of alcohol in 100 millilitres of blood.
[126] The second sample was obtained at 3:48 a.m. with a BAC reading of 149.
[127] Officer Bingham noted Mr. Deadman had the copious odour of alcoholic beverage on his breath; he was polite, cooperative and talkative; speech was fair; he swayed in his seat prior to the first breath test; he had hiccups.
[128] Officer Bingham testified that his signs of impairment were slight in comparison to others, but Mr. Bingham was obviously impaired.
[129] The DVD of breath testing, and the conversation between Officer Bingham and Mr. Deadman, was played in court and filed as an Exhibit. There was no transcript of the conversation filed with the court.
[130] During this conversation Mr. Deadman repeated everything stated to Officer McMullan en route to the station with more details. Some of the details included the following:
- he spoke about drinking beer at the 6th Line Pub and how much he consumed;
- he got in his car and was going home to Etobicoke;
- he said that he drove his car up onto the snow bank intentionally;
- he was screwing around;
- he had been drifting his car;
- he was being stupid; and
- he had just broken up with a girl and was just driving around.
Decision
[131] The Crown has proven impairment by alcohol to operate a motor vehicle beyond a reasonable doubt.
[132] The Crown has proven that Mr. Deadman operated a motor vehicle with a BAC over 80.
[133] Accordingly, the Conviction is registered on Count #1 and a Conditional Stay is entered on Count #2.
Released: November 9, 2016
Signed: "Justice Lesley M. Baldwin"
Footnote
[1] *Section 11(d) of the Charter reads "Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal". This section was set out in the Application but there were no submissions on this at trial.