Court Information

Ontario Court of Justice

Date: August 24, 2016

Court File No.: Central East Region: Oshawa: 15-00330

Parties

Between:

Her Majesty the Queen

— And —

Bryan Daury

Before: Justice Peter C. West

Heard on: June 6, 2016

Oral submissions: August 24, 2016

Reasons for Judgment released: August 24, 2016

Counsel

Mr. N. Young — Counsel for the Crown

Mr. M. Pasquale — Counsel for the Defendant Bryan Daury

Judgment

West J.:

Introduction

[1] Mr. Daury was charged on April 11, 2015 with impaired driving and over 80. The defence brought a Charter application. It was agreed to proceed with the trial as a blended hearing. The Crown called two witnesses, Michael Sarangi, a tow truck operator who was following the accused's vehicle and P.C. Kevin Cameron of the O.P.P., the investigating officer.

[2] On the second day of trial I was advised by defence counsel that he no longer needed to hear from the qualified breath technician and he did not intend to call any evidence.

[3] Counsel advised there were only two issues remaining issues to be argued during submissions: (1) P.C. Cameron did not have reasonable and probable grounds to arrest Mr. Daury for impaired driving and therefore Mr. Daury's s. 8 Charter rights were infringed. The breath samples should be excluded pursuant to s. 24(2); and (2) the evidence did not meet the test for impairment set out in R. v. Stellato, (1993), 78 C.C.C. (3d) 380 affirmed, [1994] 2 S.C.R. 478 and R. v. Andrews (1996), 1996 ABCA 23, 104 C.C.C. (3d) 392 (Alta. C.A.), at paras. 19, 20, 24, 27; leave to appeal refused, [1996] S.C.C.A. 115, 106 C.C.C. (3d) vi (S.C.C).

Factual Background

[4] The facts are relatively straight forward. Police were notified through a 911 call of a silver Honda Civic travelling eastbound on Highway 401, driving at erratic speeds and weaving and straddling lanes. Mr. Sarangi heard the police dispatch and caught up to the suspect vehicle at Salem Road in Ajax. Another tow truck had been following the Civic from Brock Road and Mr. Sarangi advised he would continue to follow the Civic until the police arrived. He observed the Civic weaving and straddling the shoulder and slow lane. At Henry Street in Whitby the Civic almost struck the Henry Street bridge as a result of the shoulder narrowing as the 401 goes under the bridge. If the Civic had not abruptly moved to the left it would have struck the bridge.

[5] Mr. Sarangi was in contact with the OPP Communications Centre and was describing the driving of the Civic. He observed the Civic also straddling the slow lane and centre lane with half of the Civic in each lane. He observed the actions of the Civic cause a number of transports to have to change lanes to avoid a collision as the Civic was driving at speeds of only 60 to 90 km/hr. He observed the Civic swerving into transports that were passing the Civic and causing the transports to change lanes to avoid a collision. This occurred on a number of occasions and Mr. Sarangi advised the Communications Centre of the near collisions.

[6] Mr. Sarangi observed the OPP cruiser pull in behind the Civic just after Stevenson Road in Oshawa. A short time before 4:21 am, P.C. Cameron testified he began to follow the silver Honda Civic just before Simcoe Road in Oshawa. He observed the vehicle straddling two lanes. At Harmony Road the Civic appeared to be exiting as it was fully in the exit lanes but at the last minute the Civic abruptly pulled across the exit lanes back onto the 401 eastbound.

[7] P.C. Cameron had received a dispatch concerning a silver Honda Civic, license AYLY 898 as a possible impaired driver. He received information the Civic was weaving and proceeding on 401 eastbound at varying rates of speed. When the officer first saw the Civic it was driving at 70 km/hr. He observed it weaving across the fog line between the slow lane and the shoulder on two occasions. The Civic was also weaving within the lane it was in. He then observed the vehicle start to exit from the 401 to Harmony Road when it abruptly veered across the exit lanes back onto the slow lane of the 401.

[8] As a result of the information he received and his own observations he affected a traffic stop just past Harmony Road exit. Upon approaching the Civic and speaking with the driver he detected a strong odour of alcohol coming from the driver's mouth. The driver was Bryan Daury. When he inquired as to whether Mr. Daury had been drinking, Mr. Daury responded, "Not much." He requested Mr. Daury's driver's license and noted his movements in locating and handing the license were slow. He asked Mr. Daury to step out of the vehicle and walk around to the rear of the vehicle on the shoulder. The shoulder was very wide and flat with no obstructions. He observed Mr. Daury to be unsteady on his feet as he walked. His movements in getting out of the car and in walking were slow and Mr. Daury was swaying as he walked. He was unsteady when he first exited his vehicle.

[9] P.C. Cameron testified given the totality of the information from dispatch and his own observations he formed reasonable and probable grounds Mr. Daury's ability to operate a motor vehicle was impaired by the consumption of alcohol. Consequently, he placed Mr. Daury under arrest for that offence.

[10] Mr. Daury was given his right to counsel, caution and breath demand. He said he wanted to speak to duty counsel and did so at the station before being turned over to the qualified breath technician. Exhibit 2 is the Qualified Breath Technician's Certificate, which reflects truncated readings of 110 mg of alcohol in 100 ml of blood and 100 mg of alcohol in 100 ml of blood.

[11] P.C. Cameron was following Mr. Daury's Civic for more than two kilometers before he initiated the traffic stop by putting on his emergency lights. Mr. Sarangi was following Mr. Daury's Civic for in excess of 15 kilometers.

Analysis

Did P.C. Cameron have reasonable and probable grounds to arrest Mr. Daury for impaired operation?

[12] Mr. Pasquale argues P.C. Cameron did not have reasonable and probable grounds to arrest Mr. Daury for impaired operation. Consequently, his arrest of Mr. Daury was illegal and the breath demand and obtaining of breath samples was a breach of Mr. Daury's s. 8 Charter rights.

[13] In R. v. Suntharalingham, 2012 ONSC 6207, [2012] O.J. No. 5145 (Ont. Sup. Ct. Campbell J.) held at para. 20:

To establish the "reasonable and probable grounds" necessary to justify the arrest of an accused or a demand for breath samples, a police officer must have subjectively had an "honest belief" which was objectively based on reasonable and probable grounds. Accordingly, the s. 8 Charter issue in the present case turns on the question of whether, on the basis of the record before the court, a reasonable person placed in the circumstances of Constable Ireland could conclude that there were reasonable and probable grounds to believe that the appellant's ability to operate a motor vehicle was impaired by alcohol on the evening in question. See: R. v. Storrey, [1990] 1 S.C.R. 241, at p. 250; R. v. Bernshaw, [1995] 1 S.C.R. 254, at para. 51; R. v. Shepherd, at para. 17; R. v. Berlinski, [2001] O.J. No. 377 (C.A.) at para. 3.

[14] In Regina v. Censoni, [2001] O.J. No. 5189, Justice Hill stated in paras. 35, 43:

35 In reviewing the objective component of reasonable grounds, the question is whether the officer's opinion was supported by objective facts: Regina v. Berlinski, [2001] O.J. No. 377 (C.A.) at para. 3 per curiam. The existence of a "constellation of objectively discernible facts", spoken of by Doherty J.A. in Regina v. Simpson (1993), 79 C.C.C. (3d) 482 (Ont. C.A.) at 501 in discussing "articulable cause", is also a necessary feature of reasonable grounds: Regina v. Hall, supra at 74-75. In Storrey v. The Queen, supra at 324, Cory J. spoke of a reasonable person standing in the shoes of the police officer believing reasonable and probable grounds existed. This was the approach followed in Regina v. Hall, supra at 77 and to this end, in Regina v. Oduneye (1995), 1995 ABCA 295, 15 M.V.R. (3d) 161 (Alta. C.A.) at 168-9, the court accepted the existence of objective reasonable grounds must be based on facts known by or available to the peace officer at the time he or she formed the belief.

43 Reasonable grounds in the context of a s. 254(3) breath demand is not an onerous threshold. It must not be inflated to the context of testing trial evidence. Neither, of course, is it so diluted as to threaten individual freedom. All too often, however, the defendant invites the trial court to engage in minute decisions of the officer's opinion - an opinion developed on the spot without the luxury of judicial reflection. This undoubtedly led McFadyen J.A. in Regina v. McClelland, supra at 517 to observe:

It is neither necessary nor desirable to hold an impaired driving trial as a threshold exercise in determining whether the officer's belief was reasonable.

[15] In R. v. Wang, 2010 ONCA 435, [2010] O.J. No. 2490, at paras. 17, 20 & 21, the Ontario Court of Appeal, relying on R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527 made the following observations concerning the forming of reasonable and probable grounds by a police officer:

…where a court is satisfied that the officer had the requisite subjective belief, the sole remaining issue is whether that belief was reasonable in the circumstances. The test is not an overly onerous one. A prima facie case need not be established. Rather, when impaired driving is an issue, what is required is simply that the facts as found by the trial judge be sufficient objectively to support the officer's subjective belief that the motorist was driving while his or her ability to do so was impaired, even to a slight degree, by alcohol: see R. v. Stellato (1993), 12 O.R. (3d) 90 (C.A.), aff'd, [1994] 2 S.C.R. 478.

[16] In R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453, Durno J., delivering the judgment of the Ontario Court of Appeal, summarized the proper approach to be taken by trial judges in assessing whether the necessary reasonable and probable grounds exist. In R. v. Suntharalingham, supra, Campbell J. summarized this approach as follows in para. 21:

(1) The standard of reasonable and probable grounds lies somewhere between "reasonable suspicion" and "proof beyond a reasonable doubt." Accordingly, the requirement of reasonable and probable grounds does not require proof beyond a reasonable doubt or even the establishment of a prima facie case. See: R. v. Bush, at para. 36-37. See also: Regina v. Censoni, at para. 30-31; R. v. Shepherd, at para. 23; R v. Baron (1993), 78 C.C.C. (3d) 510 (S.C.C.) at pp. 531-532.

(2) In the context of a demand for breath samples, the requirement of reasonable and probable grounds standard is "not an onerous test." It must not be "inflated to the context of testing trial evidence," but neither must it be "so diluted as to threaten individual freedom." See: R. v. Bush, at para. 46. See also: R. v. Wang, at para. 17; Regina v. Censoni, at para. 43.

(3) There is no necessity that the accused be in a state of "extreme intoxication" before a police officer will have reasonable and probable grounds to effect an arrest. Indeed, impairment may be established where the Crown proves "any degree of impairment from slight to great." Slight impairment to drive a motor vehicle relates to a reduced ability to perform a complex motor function, whether impacting upon perception or field of vision, reaction or response time, judgment, and regard for the rules of the road. Accordingly, to justify an arrest or breath demand, the police officer need only have objectively based reasonable and probable grounds to believe that the accused's ability to drive was "slightly impaired" by alcohol. See: R. v. Bush, at para. 47-48. See also: R. v. Stellato (1993), 12 O.R. (3d) 90 (C.A.); Affirmed:, [1994] 2 S.C.R. 478; R. v. Deighan, [1999] O.J. No. 2413 (C.A.) at para. 1; Regina v. Censoni, at para. 47; R. v. Wang, at para. 17.

(4) In assessing whether or not there are reasonable and probable grounds in any given case, trial judges are often improperly asked to engage in a "dissection" of the officer's grounds by looking at each ground in isolation, and without appreciating that the opinions of the officer were developed at the scene "without the luxury of judicial reflection." Yet it is "neither necessary nor desirable" to conduct an impaired driving trial as if it were a "threshold exercise in determining whether the officer's belief was reasonable." See: R. v. Bush, at para. 55. See also: R. v. McClelland (1995), 1995 ABCA 199, 165 A.R. 332 (C.A.); R. v. Jacques, [1996] 3 S.C.R. 12, at para. 23; Regina v. Censoni, at para. 43.

(5) An assessment of whether the police officer objectively possessed reasonable and probable grounds does not involve the equivalent of an "impaired driver scorecard," with a list of all the "usual indicia of impairment" and counsel conducting an inventory as to which indicia are present and which are absent as part of the essential assessment. Indeed, there is "no mathematical formula" whereby the police officer must have a certain minimum number of indicia of impairment before it can be said, as a matter of law, that the necessary reasonable and probable grounds are objectively present. The absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding that there are reasonable and probable grounds to believe the accused is impaired based upon all of the circumstances of the case. See: R. v. Bush, at para. 56. See also: Regina v. Censoni, at para. 46; R. v. Costello (2002), 22 M.V.R. (4th) 165 (Ont. C.A.) at para. 2; R. v. Wang, at para. 21.

(6) A trained and seasoned police officer is entitled to draw inferences and make deductions drawing on his or her years of experience. A trial judge is entitled to take into consideration the experience and training of the police officer in assessing whether or not he or she objectively possessed the necessary reasonable and probable grounds. See: R. v. Bush, at para. 61. See also: Regina v. Censoni, at para. 36-37.

[17] In the present case, P.C. Cameron relied on the following observations and information known to him in determining his subjective belief he had reasonable and probable grounds:

1. Mr. Daury was weaving in his lane and travelling at varying rates of speed as observed by Mr. Sarangi.

2. These observations of driving were occurring over a considerable distance.

3. P.C. Cameron observed Mr. Daury's Civic straddling the fog line between the shoulder and slow lane on two occasions.

4. P.C. Cameron observed Mr. Daury appear to be exiting at Harmony Road and then abruptly swerve over the exit lanes and veer back onto the slow lane of Highway 401.

5. Mr. Daury had a strong odour of alcohol on his breath.

6. Mr. Daury admitted to consuming alcohol.

7. When asked for his driver's license Mr. Daury's movements are slow in providing it to P.C. Cameron.

8. When asked to step out of the vehicle Mr. Daury is slow in his movements and unsteady on his feet.

9. When Mr. Daury walked to the back of the vehicle he was unsteady on his feet and had problem balancing despite the surface of the shoulder being both pavement and gravel which was flat with no obstructions.

[18] It is my view, having regard to the above observations and information, a reasonable person, standing in the shoes of P.C. Cameron, would believe reasonable and probable grounds existed to arrest Mr. Daury for the offence of impaired operation of a motor vehicle as a result of his consumption of alcohol.

[19] I find these facts are sufficient, at law, to objectively support the officer's subjective belief that Mr. Daury was driving while impaired by alcohol. The fact that some of the traditional indicators of impairment, such as slurred speech and bloodshot eyes, were not mentioned by P.C. Cameron does not render the officer's subjective belief, based on his observations, objectively unreasonable. The driving behaviour of Mr. Daury in straddling the fog line between the slow lane and the right shoulder and his abruptly crossing the lanes of the off-ramp to Harmony Road, coupled with the odour of alcohol on his breath and his unsteadiness in getting out of his car and then walking to its rear, in my view would have been sufficient to support a belief of reasonable and probable grounds. I find there is no breach of Mr. Daury's s. 8 Charter rights as P.C. Cameron had reasonable and probable grounds to arrest Mr. Daury for impaired driving.

Did the evidence establish impairment beyond a reasonable doubt?

[20] There is no definition of "impairment" in the Criminal Code. It is a factual question that must be decided on the evidence in each case: R. v. Stellato, (1993), 78 C.C.C. (3d) 380 affirmed, [1994] 2 S.C.R. 478; Graat v. The Queen (1982), 2 C.C.C. (3d) 365 (S.C.C.), at 400-401. The critical question, however, is whether the requisite impairment occurred, not the degree of any impairment. As said by the Ontario Court of Appeal in R. v. Stellato, supra, at para. 10, adopting the language of the Prince Edward Island Court of Appeal in R. v. Campbell (1991), 87 Nfld. & P.E.I.R. 269, at 320:

It is not an offence to drive a motor vehicle after having consumed some alcohol as long as it has not impaired the ability to drive. However, a person who drives while his or her ability to do so is impaired by alcohol is guilty of an offence regardless of whether his ability to drive is greatly or only slightly impaired.

And later, at para. 14:

[B]efore 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.

[21] The core issue is not whether the defendant drank and drove but whether that drinking impaired his ability to drive. The legal basis for this argument is set out in the oft-quoted case of R. v. Andrews (1996), 1996 ABCA 23, 104 C.C.C. (3d) 392 (Alta. C.A.), at paras. 19, 20, 24, 27; leave to appeal refused, [1996] S.C.C.A. 115, 106 C.C.C. (3d) vi (S.C.C), which adopts, explains and applies the reasoning in Stellato:

[I]t is so important not to deal with the issue of impairment separate from impairment of one's ability to drive. Stellato must not be understood to mean that a person who has anything to drink and then drives a motor vehicle commits the offence under s. 253(a) [now s. 253(1)(a)]. Nor does it mean any lack of sobriety is sufficient. ...

The ratio of the judgment in Stellato is that it is not necessary for the Crown to establish a marked degree of impairment of the accused's ability to drive; rather, any degree of impairment of that ability, if proved beyond a reasonable doubt, will sustain a conviction.

... [ Stellato ] speaks to degree of proof. In other words, as framed in Stellato, the conduct must be of such a nature that an impairment of the ability to operate a vehicle (be it slight or marked impairment) is proven beyond a reasonable doubt.

... It is not deviation from normal conduct, slight or otherwise, that is in issue. What is in issue is the ability to drive. Where circumstantial evidence alone or equivocal evidence is relied on to prove impairment of that ability, and the totality of that evidence indicates only a slight deviation from normal conduct, it would be dangerous to find proof beyond a reasonable doubt of impairment of the ability to drive, slight or otherwise.

[22] In R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 (Ont. C.A.) at para. 47, the Ontario Court of Appeal cited Stellato and Censoni with approval and held, "Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road: Censoni at para. 47."

[23] I find both Mr. Sarangi and P.C. Cameron were reliable and credible witnesses. They did not seek to embellish their evidence and were not evasive or argumentative during questioning.

[24] It is my view, the evidence of the manner the silver Honda Civic was driven as observed by Mr. Sarangi and P.C. Cameron, together with the observations made by P.C. Cameron after the traffic stop and on the shoulder prove beyond a reasonable doubt Mr. Daury's ability to operate a motor vehicle was impaired by the consumption of alcohol.

[25] It is my view, based on the totality of the evidence, Mr. Daury's ability to drive was clearly impaired by his consumption of alcohol. I rely on the following pieces of evidence in coming to this conclusion:

1. Mr. Daury straddling the fog line separating the slow lane and the right shoulder on a number of occasions over a considerable distance as observed by both Mr. Sarangi and P.C. Cameron.

2. Mr. Daury straddling the slow lane and middle lane on a number of occasions as observed by Mr. Sarangi.

3. Mr. Daury swerving into the lane occupied by a transport truck on a number of occasion, which caused the transports to have to move to other lanes to avoid a collision.

4. Mr. Daury almost colliding with the bridge at Henry Street as a result of straddling the shoulder and slow lane by driving over the fog line.

5. Mr. Daury appearing to exit at Harmony Road and then abruptly veering across the exit lanes back onto the 401 slow lane.

6. P.C. Cameron detecting a strong odour of alcohol on Mr. Daury's breath when speaking to him.

7. Mr. Daury's admission of consuming alcohol.

8. When P.C. Cameron requested Mr. Daury provide his driver's licence his movement were slow.

9. P.C. Cameron's observations of Mr. Daury being unsteady on his feet when he exited his car and walked to its rear. Mr. Daury swaying as he was walking and appearing to have a problem with balance despite the shoulder being flat with no obstructions.

[26] Considering the totality of the evidence I am satisfied the Crown has proven the charge of impaired operation beyond a reasonable doubt. In my view the driving behaviour of Mr. Daury coupled with the odour of alcohol and his admission of consumption provide the necessary proof of his ability to operate a motor vehicle being impaired by alcohol. I find there were a number of instances of bad driving, which clearly demonstrated Mr. Daury's ability to operate his car was impaired by the consumption of alcohol. There will be a conviction registered in respect of the impaired operation and pursuant to R. v. Keinapple, the operating a motor vehicle with more than 80 mg of alcohol in 100 ml of blood, while there will be a finding of guilt, that charge will be stayed.

Released: August 24, 2016

Signed: Justice Peter C. West