Court Information

Ontario Court of Justice

Date: December 21, 2016

Court File No.: Red Lake, Ontario 15 1296

Parties

Between:

Her Majesty the Queen

— and —

Lorne Penny

Judicial Officer and Counsel

Before: Justice Peter T. Bishop

Heard on: October 14, 2016

Reasons for Judgment released on: December 21, 2016

Counsel:

• Sarah Burden, counsel for the Crown
• Aaron Seib, counsel for the defendant Lorne Penny

Charges

[1] Lorne Penny stands charged that on or about the 17th day of September, 2015 in the Municipality of Red Lake while his ability to operate a motor vehicle was impaired by alcohol did have care and control of a motor vehicle contrary to Section 253(1)(a) of the Criminal Code; and further that

[2] Lorne Penny on or about the 17th day of September, 2015 at that Municipality of Red Lake having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood did have care and control of a motor vehicle contrary to Section 253(1)(b) of the Criminal Code.

Evidence of Joey Matura

[3] Constable Matura is employed by the Ontario Provincial Police and was on general law enforcement from 6:00 p.m. to 6:00 a.m. on September 17, 2015.

[4] At 5:48 p.m. Constable Matura was advised of a traffic complaint regarding a possible impaired driver who was just refused service at the beer store on Hamel Road in the Municipality of Red Lake and had departed that premises in a silver pickup truck with Ontario license plate AF21485.

[5] Constable Matura observed a pickup bearing the same license plate parked at the LCBO/Sobeys parking lot. A male, later identified as the accused, was observed in the driver's seat with the door closed and the vehicle was not running. The vehicle was parked not within the parking lines and to the right hand side of a telephone pole.

[6] Constable Matura pulled up behind the vehicle and attended to the driver's door and knocked on the window.

[7] The accused seemed surprised and Constable Matura motioned to him to wind the window down. The driver did not immediately comply and Constable Matura opened the driver's door.

[8] Constable Matura could smell a strong odour of alcohol from his breath, his speech was slurred, and his response initially was inaudible. The accused's eyes were glossy and he held up the keys.

[9] The accused was looking for his driver's license which was on the right hand side of his wallet and clearly visible to the officer. The accused pulled out cards from his wallet and appeared uncoordinated.

[10] The officer pointed out the driver's license and the accused then handed it over.

[11] At 5:54 p.m., the accused was placed under arrest and he turned the motor vehicle keys over to the officer. The driver appeared unsteady on his feet but did not appear to have a high level of impairment.

[12] The accused was read the caution and rights to counsel at 5:54 p.m. and at 5:55 p.m. the breath sample demand was made and the accused requested to speak to duty counsel.

[13] At 5:58 p.m., the accused defecated his pants which odour masked the smell of alcohol.

[14] The officer transported the accused back to the detachment and arrived at 6:00 p.m. The accused was placed in a holding cell and at 6:05 p.m., the officer called duty counsel and advised Constable Schmidt, the qualified breathalyzer technician of his grounds for the arrest.

[15] At 6:15 p.m., duty counsel called and the accused had a private conversation with him which was completed at 6:24 p.m.

[16] At 6:25 p.m. the accused was handed over to Constable Schmidt, a qualified Breathalyzer technician.

[17] The breath samples were completed.

[18] The first breath sample taken at 6:29 p.m. resulted in a reading of 100 milligrams of alcohol in 100 millilitres of blood and the second breath sample that was taken at 6:50 p.m. and resulted in a reading of 90 milligrams of alcohol in 100 millilitres of blood.

[19] The notice of intention to produce a certificate of analysis and the certificate of a qualified Breathalyzer technician were filed as Exhibit 1 and 2 respectively.

Evidence in Cross Examination

[20] Constable Matura stated that he had an approved screening device in the car but did not use it. He had the accused under observation for approximately 45 seconds before he decided to charge him. When first approaching the window the accused was startled and let out a noise described as a yelp.

[21] The officer relied upon the smell of alcohol on the accused's breath, the lack of coordination and fumbling with his wallet and not being able to recognize his driver's license although it was clearly visible; glossy eyes: some trouble with his speech and the reliance on the complaint from the employee of the beer store that a gentleman resembling the accused's description was possibly impaired and was driving a vehicle with the same license plate and was refused service at the beer store.

[22] On consent, the parties filed a DVD showing the accused in the breath sample room which was viewed by the Court.

Position of the Defence

[23] The accused elected not to give evidence and rely upon the high onus placed on the Crown attorney.

[24] The defense alleges that there has been a Charter breach of Section 8 and 9 being arbitrary detention and unlawful search as there was no authority to stop the vehicle pursuant to the Highway Traffic Act in a parking lot. The defense's position is that the accused was detained from the time that Constable Matura opened the door. No rights to counsel were read immediately and any attempt to gather evidence thereafter was therefore prohibited.

[25] The cases of R v Orbanski; R v Elias, 2005 SCC 37 and R v Ackerman, 2014 NLCA 26, are distinguished on the facts as the law in those jurisdictions allow stopping of vehicles in a parking lot pursuant to Provincial legislation.

[26] The defense submits that in Ontario there is no authority to have the police check an individual for sobriety in a parking lot.

[27] The defense also submits that there was a Section 8 and Section 9 breach which must be analyzed together. The Court must take an objective view as the officer here rushed to a precipitous demand based on scanty evidence.

[28] The accused is also concerned with respect to the officer not using an approved screening device when one was readily available and decided to charge directly with impaired care and control and impaired over .08.

[29] The defense directs the Court to Her Majesty the Queen v. Simon Au-Yeung, 2010 ONSC 2292, which stands for the principle that evidence must be excluded pursuant to Section 24(2) of the Canadian Charter of Rights and Freedoms if the investigating officer cannot show probable cause and there is a significant breach of the accused's Charter of Rights.

Position of the Crown

[30] The Crown's position is that Section 254(3) of the Criminal Code allows a police officer, upon reasonable grounds, to require an individual, as soon as practical to provide samples of their breath and provided that the detention is not arbitrary or unlawful.

[31] It is acknowledged that motor vehicle stops affected by state agents must be pursuant to the Criminal Code or the common law or regulatory legislation.

[32] The Crown acknowledges the ratio in R v Dillon, [2006] O.N. OJ No. 1366, 32 MVR (5th) that stops on private property and parking lots are not governed by the Highway Traffic Act.

[33] In R v Mann, [2004] S.C.C. 52 and R v Dedman, [1985] 2 SCR 2, a two-pronged analysis is applicable. The first stage requires a consideration of whether the police conduct falls within the general scope of any duty imposed on the officer by statutory or common law. It has been held that at common law, the main duties of a police officer are the preservation of the peace, the prevention of crime and the protection of life and liberty.

[34] With respect to the second stage, the Crown must demonstrate police conduct was a justifiable use of the powers associated with the duty to prevent crime or protect life. The Court must consider the necessity and the reasonableness of the interference with liberty. And assess the evidence in the light of the nature of liberty interfered with and the importance of the public purpose served. A brief detention to check for sobriety is a minimal infringement of liberty when compared to the public interest.

[35] In this case, the investigating officer found the accused in the driver's seat of the motor vehicle and he wanted to ensure that he was not impaired and did not pose a threat to the public. Therefore, this was not an arbitrary detention, nor was there an unlawful search and seizure.

[36] With respect to Section 10(b), rights to counsel, this right is triggered immediately upon the existence of a detention. Police must immediately inform the detainee of right to counsel as soon as there is a detention.

[37] In Orbanski, the Supreme Court of Canada justified the suspension of a person's Section 10(b) Charter Rights prior to making inquiries as to whether the driver had been drinking and ordering the driver to perform a sobriety test. This suspension applies to all impaired investigations, including when a motor vehicle is parked in a parking lot. It is not restricted to situations where a police officer stops a vehicle in accordance with Provincial legislation.

[38] With respect to reasonable and probable grounds for an approved instrument demand, this requires the officer to objectively provide reasonable and probable grounds for his belief. The existence of reasonable ground depends on whether or not an individual, standing in the shoes of the officer, and with the knowledge and experience of the officer, would believe that there are reasonable and probable grounds for making the arrest.

[39] As stated in R v Shepherd, 2009 SCC 35, regarding the grounds and the context of the breath sample demand is not an onerous test. There is no requirement that an officer make out a prima facie case for conviction before making a demand. There is no requirement that there be evidence of bad driving before reasonable grounds exist. In fact, there may be other explanations for one or more indicia does not take away from the existence of reasonable grounds. Confusion itself can be a sign of impairment.

Decision

[40] In these fact circumstances, I am finding that Constable Matura had reasonable and probable grounds to arrest the applicant for impaired care and control.

[41] The officer received information about a possible impaired driver, being refused service at the beer store, and the exact license plate number of the vehicle. The officer detected a strong smell of alcoholic beverage on the accused's breath. He also observed his speech was slurred and the accused was difficult to understand and had glossy eyes. The accused had difficulty locating his driver's license and appeared uncoordinated and also appeared unsteady on his feet. In these circumstances, any reasonable person standing in the shoes of the officer would conclude that the driver's ability to operate a motor vehicle was impaired by alcohol. This officer had investigated many such cases and had approximately 6 years of experience with the Ontario Provincial Police.

[42] The Court had an opportunity to view the DVD and the accused's appearance in the police station giving breath samples. He appeared very talkative, complied with all requests, and sat quietly in the place assigned. This does not detract from the reasonable and probable grounds that the officer observed at the incident some one-half hour before giving the first sample. I am finding that the demand for the breath sample was lawful and the accused had an obligation to comply.

[43] The accused was occupying the driver's seat and the presumption under s 258 applies. The accused elected to not give evidence and rely upon the high burden of proof on the Crown. There is no evidence to the contrary.

[44] I am also finding that there was no Section 8 or 9 Charter breach as this was not an arbitrary detention but a continuation of an investigation based on a complaint by another member of the public.

[45] It was in the public's interest to identify the accused, to prevent a continuation of an alleged offence.

[46] The same basic principles apply for reasonable and probable grounds for an arrest under Section 495(1) of the Criminal Code as under Section 254(3) of the Code. There was no Section 8, 9 or 10 breach of the Charter.

[47] As such, there is no need to go through the analysis with respect to exclusion of evidence under Section 24(2) of the Charter Rights and Freedoms.

[48] In these circumstances a conviction for care and control, over 80mg alcohol per 100ml blood will enter, and a conditional stay will enter with respect to the impaired care and control.

Released: December 21, 2016

Signed: "Justice Peter T. Bishop"