Court File and Parties
Ontario Court of Justice
Date: March 20, 2017
Court File No.: Ottawa 16-A10029
Between:
Her Majesty the Queen
— and —
Tracie Murphy
Before: Justice P. K. Doody
Heard on: February 13, 2017
Reasons for Judgment released on: March 20, 2017
Counsel
Sabrina Goldfarb — counsel for the Crown
Anna Brylewski — counsel for the defendant
Reasons for Judgment
DOODY J.:
Part 1: Overview
[1] The defendant Tracie Murphy is charged with having care and control of a motor vehicle while her ability to operate the vehicle was impaired by alcohol, and with having care and control of a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of blood.
[2] On March 12, 2016, the defendant was sitting in the driver's seat of her car in the parking lot of a community pool, school, park and playground. Her boyfriend, Dwayne McCarthy, was sitting in the front passenger seat.
[3] At 1:46 a.m. Cst. Adam Tataryn, an officer of the Ottawa Police Service, was on general patrol. He was in full uniform and driving a marked cruiser.
[4] Cst. Tataryn noticed the defendant's car parked in the parking lot. It was the only car in the lot. Its front lights were on, but not its rear lights. He drove into the parking lot, got out of his cruiser, and approached the car.
[5] He spoke to the defendant through the drivers' side window. He could smell alcohol on the air coming out of the car.
[6] While he was speaking with her, he noticed an odour of alcohol on her breath. He noticed that her eyes were glossy. He then formed a suspicion that she had alcohol in her body. At 1:47 a.m. he demanded that she provide him with a sample of her breath to be tested in an approved screening device. She got out of the car and accompanied him to the cruiser.
[7] She provided a suitable sample shortly after 1:47 a.m. It registered a "fail".
[8] As a result, he formed reasonable and probable grounds that she was in care and control of the car while she had over 80 milligrams of alcohol in 100 millilitres of blood and while her ability to drive was impaired by alcohol.
[9] At 1:50 a.m. Cst. Tataryn arrested the defendant for those two offences. He then requested the assistance of other officers, including a female officer so that the defendant could be searched.
[10] At 1:51 a.m. Cst. Charron, a female officer, and Cst. Legros were dispatched to the scene. Cst. Legros arrived at 1:53 a.m. and Cst. Charron at 1:57 a.m.
[11] Cst. Legros looked after impounding the car and ensuring that it would be towed from the parking lot. Cst. Charron searched the defendant.
[12] At 2:02 a.m. Cst. Tataryn read the defendant her rights to counsel. At 2:03 a.m. he read her the caution in respect of statements and the secondary caution. At 2:04 a.m. he demanded that she accompany him and provide a sample of breath to enable a proper analysis to be made to determine the concentration, if any, of alcohol in her blood.
[13] At 2:18 a.m. Cst. Tataryn left the scene with the defendant in his cruiser. They arrived at the police station at 2:35 a.m.
[14] The defendant was given an opportunity to consult with a lawyer and at 3:16 a.m. she did so. At 3:22 a.m. she was turned over to the breath technician. She provided two samples of breath. At 3:33 a.m. she provided a sample which was analyzed to contain 111 milligrams of alcohol in 100 millilitres of blood. At 3:54 a.m. she provided a sample which was analyzed to contain 99 milligrams of alcohol in 100 millilitres of blood.
Part 2: Issues
[15] Defence counsel raises three issues. She submits that the Crown has failed to prove beyond a reasonable doubt that:
(a) the Intoxilyzer tests were taken "as soon as practicable";
(b) the defendant's ability to operate a motor vehicle was impaired by alcohol; and
(c) the defendant was in care and control of her car.
Part 3: Whether the Intoxilyzer Tests Were Taken "As Soon as Practicable"
(a) The Law
[16] Paragraph 258(1)(c) of the Criminal Code provides that evidence of the results of the analyses by an Intoxilyzer of samples of breath of a defendant are proof of the concentration of alcohol in his or her blood at the time of the alleged offence if, among other things, each breath sample was taken "as soon as practicable after the time the offence was committed".
[17] In order to take advantage of this statutory presumption the Crown must prove beyond a reasonable doubt that each of its requirements have been met. As Justice Hill held in R. v. Walker, [2006] O.J. No. 2679:
Compliance with the statutory scheme must be strictly construed where the prosecution is relieved of the obligation of adducing expert evidence on the subject.
[18] As the Court of Appeal has held in R. v. Vanderbruggen, [2006] O.J. No. 1138, 206 C.C.C. (3d) 489, there is no requirement that the tests be taken as soon as possible. Nor does the provision require an exact accounting of every moment in the chronology. As the Court held:
The provisions of s. 254(2) should not be interpreted to require an exact accounting of every moment in the chronology.
The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably.
In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason.
[19] In R. v. Singh, 2014 ONCA 293, [2014] O.J. No. 1851, the Court of Appeal reiterated the Vanderbruggen decision, holding that the requirement that the samples be taken as soon as practicable means "nothing more than that the tests should be administered within a reasonably prompt time in the overall circumstances."
[20] These notes of caution by the Court of Appeal do not, however, diminish the requirement of s. 254(2). The analysis which trial courts are required to undertake is not one in which every unjustified minute of delay is totted up, with the resulting sum being analyzed to determine whether the requirement has been met. At the same time, however, the analysis is not whether the total delay seems reasonable without analysis of the reasons therefor. The inquiry is fact-specific. Just as the Court of Appeal held in R. v. Quansah, 2012 ONCA 123, that there is not a rule of a standard 15 minute allowable period of delay in administering the ASD test, there is not a rule of a standard permissible period of delay in administering the Intoxilyzer test. A fact-specific inquiry requires that significant periods of delay be identified and the Crown be required to justify them.
[21] As Durno J. held in R. v. Schouten, [2002] O.J. No. 4777:
… each case must be examined on its own facts. One hour and forty-six minutes could be "as soon as practicable": R. v. Letford (2001), 150 C.C.C. (3d) 225 (Ont. C.A.). One hour and thirty minutes might not be "as soon as practicable" in another: R. v. Lightfoot, (1980), 4 M.V.R. 238 (Ont. C.A.).
(b) The Evidence
[22] Cst. Tataryn arrived on the scene at 1:46 a.m. The first test was taken at 3:33 a.m. and the second at 3:54 a.m. We are thus dealing with a delay of 1 hour and 47 minutes before the first test and 2 hours and 8 minutes before the second test.
[23] Defence submits that the delay between the defendant's arrest at 1:50 a.m. and 2:18 a.m. when Cst. Tataryn left the scene with the defendant to drive to the police station unnecessarily delayed the testing, so that the tests were not taken as soon as practicable.
[24] Cst. Tataryn testified that when he arrested the defendant, Mr. McCarthy, her boyfriend, got out of the car and, in a non-aggressive manner, asked him to "give her a break". As a result, he decided to handcuff the defendant, which took about a minute.
[25] Normally, he would search a detainee immediately after arrest but he could not do so because a search should be conducted by an officer of the same gender. After cuffing the defendant, he radioed for a female officer at 1:51 a.m. – one minute after the arrest.
[26] He said that he then explained to her the process – that she could talk to a lawyer, that anything she said to him would be recorded, and that she would go downtown to give a breath sample. He described this conversation with the defendant as a "soft right to counsel", although he did not formally advise her of her right to counsel, with proper wording, until later.
[27] Cst. Tataryn acknowledged that he understood that he is obliged by s. 10(b) of the Charter of Rights and Freedoms to advise a detainee of her right to counsel immediately upon arrest. He testified that he tried to do it as immediately as practicable. Nevertheless, he did not do so until 2:02, 12 minutes after arresting the defendant.
[28] He explained the delay by saying that he had a lot of things going on – he had to get more officers there, and the passenger, Mr. McCarthy, had exited the car.
[29] He acknowledged that he dealt with the need to get more officers there by putting in one call to dispatch, which was completed at 1:51 a.m. The rest of the work required to get Cst. Charron and Cst. Legros there was done by communications persons at the station.
[30] He also acknowledged that Mr. McCarthy did not present a safety risk at any time. Nevertheless, he testified that it was not "the best case" and not "the safest thing" to pull out a notebook and start reading from it when another person is present. When it was pointed out to him that he had earlier testified that Mr. McCarthy was present "the entire time" he was reading the defendant her right to counsel at 2:02 a.m., he testified that by that point Cst. Legros had brought Mr. McCarthy over to his cruiser and was identifying him from his driver's licence and was speaking to him.
[31] Defence counsel pointed out to Cst. Tataryn that by 1:53 Cst. Legros had arrived on the scene, and asked him why he did not read the defendant her rights to counsel at that time. He responded that he went over to the car to do a "quick cursory search of it" – that he did not know "what other offences are going on" and he wanted to make sure that, because there was a male walking around, that no evidence was destroyed. He then testified that Cst. Legros would have done a more thorough search later. That search took about a minute or two.
[32] He testified that he did not read the defendant her rights to counsel after he had searched her car because she had not yet been searched and "I have still got him there and I am trying to deal with what is in the car and trying to deal with the male I am trying to deal with her which is why I am pretty much giving her her soft rights to counsel until she was done being searched by the female officer."
[33] Cst. Tataryn testified that Cst. Charron arrived at 1:57 and searched the defendant. He was standing nearby while the search, of her pockets and waistband, was conducted. He testified that the search was "fairly brief – no more than a minute or two".
[34] He started reading the right to counsel at 2:02 a.m., the caution and secondary caution at 2:03, and the breath demand at 2:04.
[35] He testified that he then spoke with the other officers, Legros and Charron, to make sure that they knew what they were required to do. The defendant told him she wished to speak with Mr. McCarthy. He saw no reason not to allow that, so he allowed him to speak to the defendant through the open window of the cruiser while she was in the back seat. In examination in chief he had testified that she asked for "a few minutes" to speak with Mr. McCarthy; in cross-examination, he estimated the conversation to have lasted approximately 5 minutes.
[36] He said that after she spoke with Mr. McCarthy, Cst. Tataryn spoke with the other officers to "make sure they were all squared away" and to make sure that they knew what their tasks were. In cross-examination, he admitted that Cst. Charron's only task was to search the defendant, which was completed within a minute or two of 1:57 a.m., and Cst. Legros's task was to see that the car was towed and to "deal with" Mr. McCarthy. He agreed that Cst. Legros was more experienced than he was and he was confident in his ability to carry out those tasks, and that he (Cst. Tataryn) was not required to stay and supervise Mr. McCarthy.
[37] Cst. Tataryn was asked what he knew of the Criminal Code requirements that dealt with the timing allowed to get a suspect to the station to provide breath samples. His evidence was that he believed that he had 3 hours to form the necessary grounds and, after that, 2 hours to get the suspect to the police station. He repeated this belief in further questioning, concluding with his statement that he believed that the only time requirement was that he had two hours to get the suspect to the station to provide a sample.
[38] This belief was incorrect. He was required by s. 254(3.1) to have the samples provided as soon as practicable.
(c) Analysis
[39] Cst. Tataryn arrested the defendant for care and control while impaired and with a blood alcohol level over 80 milligrams per 100 millilitres of blood at 1:50 a.m. He knew that he was obliged to advise the defendant of her right to counsel immediately. Nevertheless, he did not do so for 12 minutes, at 2:02 a.m. This delay points to his lack of concern for timeliness.
[40] He was obliged by s. 254(3.1) to make the demand for breath sample as soon as practicable. Nevertheless, he did not do so for 14 minutes, at 2:04 a.m.
[41] He was obliged to have the breath sample taken as soon as reasonably practicable. Nevertheless, he did not do so for a further 1 hour and 43 minutes, at 3:33 a.m.
[42] Cst. Legros arrived at 1:53 a.m. Cst. Tataryn testified that he spoke to Cst. Legros sometime after he made the breath demand to ensure that he knew he was to deal with the towing of the car and the passenger, Mr. McCarthy. That could not have taken very long. Cst. Legros was an experienced officer in whom Cst. Tataryn had full confidence. Cst. Tataryn gave no explanation of why he could not speak to him about those things before Cst. Charron arrived at 1:57 a.m. or while she was searching the defendant.
[43] There was no need for Cst. Tataryn to speak to Cst. Charron after she was finished searching the defendant, a task which only took a minute or two. If he did speak to her after that, it could only have been to thank her for her assistance and tell her she was free to go.
[44] Nor was there a need for him to search the defendant's car for evidence of "any other offence". There was no evidence that there was any reason to believe any other offence was being committed. Leaving aside the issue of whether a search of the car for the purpose of determining whether there was evidence of another offence would withstand s. 8 scrutiny, Cst. Legros could have conducted that search – as he did later.
[45] Cst. Tataryn was not obliged to allow the defendant to speak with Mr. McCarthy after she was provided with her rights to counsel, cautioned, and given the breath demand. If she needed to speak to him, she could have done so between the time of the arrest – 1:50 a.m. – and the time Cst. Charron arrived – 1:57 a.m. Alternatively, Cst. Tataryn could have limited any conversation to a minute or two.
[46] Nor was Cst. Tataryn obliged to wait until Cst. Charron had searched the defendant to advise her of her rights to counsel, caution her, or make the breath demand. The fact that he had time to give her "soft" rights to counsel makes it clear that he could have used that time to ensure that it was done properly at that time and did not have to be repeated. In any event, when he did so, it took only three minutes to not only advise her of her right to counsel but caution her about statements and make the breath demand.
[47] Everything that took place at the scene after Cst. Charron completed her search at 1:59 a.m. could have been completed between the arrest at 1:50 a.m and Cst. Charron's arrival at 1:57 a.m. Advising the defendant of her right to counsel, cautioning her and demanding she provide a sample of breath took 3 minutes. Advising Cst. Legros and Cst. Charron of their duties and providing an opportunity to the defendant to speak with Mr. McCarthy would have taken only a few minutes altogether.
[48] I conclude that Cst. Tataryn did not do these things before Cst. Charron arrived because he believed that he had two hours to get the defendant to the station for the first test. He was not aware of his obligation to ensure that the tests were taken as soon as reasonably practicable.
[49] For the same reason, he did not move with any urgency after the search was complete. He could not explain, despite repeated requests, what occupied his time for the thirteen minutes after the demand was concluded at 2:05 a.m. and departure at 2:18 a.m., other than his conversations with Cst. Legros and Cst. Charron and Mr. McCarthy's conversation with the defendant. Even taking his evidence at its highest, there were still 8 minutes for which he could not provide an explanation.
[50] I conclude that Cst. Tataryn could have left the scene at 2:00 a.m., after Cst. Charron had completed her search of the defendant, had he been acting reasonably promptly. Instead, he left at 2:18 a.m. A reasonable officer responding to the situation in which he found himself would have known of his obligation to ensure that the tests were performed as soon as reasonably practicable and would have done so.
[51] I conclude that the police did not act reasonably promptly. The Crown has not proven beyond a reasonable doubt that the tests were taken as soon as practicable. The presumption of identity does not apply. There is therefore no evidence of the blood alcohol level of the defendant at the time of the alleged care and control.
[52] The charge of having care and control of a motor vehicle while the defendant's blood alcohol level was over 80 milligrams of alcohol in 100 millilitres of blood is dismissed.
Part 4: Whether the Defendant's Ability to Drive a Motor Vehicle Was Impaired by Alcohol
(a) The Law
[53] The offence of impaired driving has been made out where the evidence of impairment establishes beyond a reasonable doubt any degree, from slight to great, of impairment by alcohol of the defendant's ability to operate a motor vehicle. (R. v. Stellato, 78 C.C.C. (3d) 380, aff'd, [1994] 2 S.C.R. 478)
[54] 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. (R. v. Censoni, [2001] O.J. No. 5189 at para. 47 (S.C.J. per Hill J., cited with approval in R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 at par. 47 (C.A.)))
[55] As the Alberta Court of Appeal has held in R. v. Andrews (1996), 1996 ABCA 23, 104 C.C.C. (3d) 392, (leave to appeal refused [1996] S.C.C.A. 115), however, the core issue is whether the defendant's consumption of alcohol impaired his ability to drive. The Court wrote, at paragraph 31:
... 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.
[56] In analyzing the evidence in order to decide if the offence has been proven, the courts have frequently considered the various matters set out in R. v. McKenzie, (1955), 111 C.C.C. 317 (Alta. D.C.). As the Ontario Court of Appeal held in Bush, these matters are appropriate to consider as an approach to the weighing of the evidence, to determine whether the defendant's conduct viewed objectively was consistent only with impairment and inconsistent with some other explanation. They are not the only measures to consider; other things to take note of include the manner of driving, reaction to the attempts of the police to have the driver stop his or her vehicle, and behaviour while interacting with police. No one factor should be considered in isolation; all of the circumstances must be taken together. (R. v. Andrea, 2004 NSCA 130, [2004] N.S.J. No. 399 (C.A.)) In McKenzie, Sissons D.C.J. stated:
There appears to be no single test or observation of impairment of control of faculties, standing alone, which is sufficiently conclusive. There should be consideration of a combination of several tests and observations such as general conduct, smell of the breath, character of the speech, manner of walking, turning sharply, sitting down and rising, picking up objects, reaction of the pupils of the eyes, character of the breathing.
(b) The Evidence
[57] Cst. Tataryn testified that the defendant displayed the following signs of being affected by her consumption of alcohol:
(a) glossy eyes;
(b) odour of alcohol on her breath;
(c) unsteadiness on her feet when she walked from her car to the cruiser;
(d) slightly slurred speech;
(e) swaying back and forth when she was standing in front of his cruiser; and
(f) a repetition of the swaying when she was standing up in the cell block.
[58] He admitted that there could be other explanations for the glossy eyes, including fatigue that would not be unusual at 1:45 a.m. He also admitted that he had no "baseline" for how she spoke, and whether the slight slurring which he described as sometimes pronouncing an "s" sound as "sh" may have been the way she normally spoke.
[59] He also admitted that she had no difficulty producing her drivers' licence when asked, she was polite and cooperative, exited her car without difficulty, and did not stumble or fall.
[60] He admitted that when he made the ASD demand he did not have grounds to arrest her for impaired care and control – that is, he did not have reasonable and probable grounds to believe that her ability to operate a motor vehicle was impaired by alcohol. He also admitted that if she had passed the ASD test she would have been allowed to go, and drive her car.
[61] Cst. Tataryn was cross-examined about his evidence that the defendant swayed at the police station just as she had swayed at the scene. Videos from the cell block were played that showed the defendant at the times that Cst. Tataryn had testified she was swaying.
[62] I reviewed the video evidence carefully.
[63] The first clip is 18 seconds long. It shows the defendant walking into a hallway in front of Cst. Tataryn, turning to her right and walking beside him, and then stopping in front of a room from which she could speak to a lawyer privately. She was not unsteady on her feet at any time - while she was walking ahead of Cst. Tataryn, when she turned, or when she was walking beside him. She did not sway while standing beside him in front of the door.
[64] The second clip is 53 seconds long, but the defendant is shown for only 25 seconds. She is seen leaving the room in which she could speak to a lawyer, entering the hallway in front of her, standing beside Cst. Tataryn, looking at a document posted on the door, and then re-entering the room. She had to bend over slightly at the waist to be able to see the document. Although Cst. Tataryn is standing between the camera and the defendant, her body from the waist down is visible at all times. Her legs did not sway or appear at all unsteady. All her movements looked normal.
[65] The third clip is 48 seconds long, but the defendant is visible for 40 seconds. She is seen standing outside the room in the hallway with Cst. Tataryn beside her. She is closer to the camera than he is, so he does not block the view of her body. She is seen standing with her hands in her pockets looking at the door and the list. At one point she moves closer to the document and bends from the waist to look at it (the upper edge of the document being at her shoulder height when she was standing upright). She remains in that position for 13 seconds, and then stands up straight. She then re-entered the room. At all times, she was steady on her feet. Her movements were normal. She did not sway.
[66] In cross-examination, it was suggested to Cst. Tataryn that the videos showed the defendant walking around, standing in front of the document, and leaning over to look at it, and that she was not swaying. Cst. Tataryn did not fully concede that that was so. He agreed, however, that the defendant's swaying that night was not very dramatic or noticeable. He testified that "it was not as if she was rocking back and forth."
[67] Cst. Tataryn testified that at 2:45 a.m. the defendant said to him "I have had too much to drink but I am not drunk". This statement was admitted by the defence to be voluntary.
(c) Analysis
[68] The Crown submitted that I could consider the result of the approved screening device evidence when determining whether the defendant's ability to operate a motor vehicle was impaired by alcohol. That is not the law. The defendant was required to perform the ASD test without being informed of her s. 10(b) rights to counsel. This is only permissible because roadside tests are not meant to provide the police with a means of gathering evidence that could later be used at trial to incriminate the motorist on a charge of care and control while impaired or over 80. The test is to be used solely as a means of confirming or rejecting the officer's suspicion that the detained motorist might be impaired or over the legal limit. The Crown cannot use the test results to incriminate the defendant on the charges before me. (R. v. Coutts (1999), 136 C.C.C. (3d) 225 (O.C.A.); R. v. Guenter, 2016 ONCA 572, 340 C.C.C. (3d) 351)
[69] I do not accept Cst. Tataryn's evidence that the defendant was swaying and unsteady at the police station. The videos show the contrary. The defendant was walking, turning, standing, leaning over for a prolonged period of time, and walking in and out of a door. There were no signs of any difficulty in her doing any of those things.
[70] The video evidence causes me to question Cst. Tataryn's evidence that the defendant was swaying when standing in front of his cruiser at the scene. At a minimum, I find that his definition of "swaying" is a very low threshold.
[71] I am not prepared to accept the defendant's statement "I have had too much to drink but I am not drunk" as an admission that her ability to drive a motor vehicle was impaired by alcohol. The statement is equivocal at best.
[72] That leaves me with Cst. Tataryn's evidence that the defendant had glossy eyes, an odour of alcohol on her breath, a slight unsteadiness on her feet when she walked to the cruiser, and a slight slurring of her speech.
[73] The evidence of her unsteadiness on her feet must be tempered by her surefootedness when walking, turning sharply, bending over, and entering and leaving the room shown on the cellblock video.
[74] Furthermore, the defendant was fully cooperative with the police. She produced her licence and exited her car without difficulty. She did not stumble or fall.
[75] In my view, the evidence shows only a slight deviation from normal conduct and, in accordance with the decision of the Alberta Court of Appeal in Andrews:
it would be dangerous to find proof beyond a reasonable doubt of impairment of the ability to drive, slight or otherwise.
[76] The charge of care and control while the defendant's ability to operate a motor vehicle was impaired by alcohol is dismissed.
Part 5: Conclusion
[77] Since I have concluded that the Crown has not proven beyond a reasonable doubt that the defendant's ability to operate a motor vehicle was impaired by alcohol or that she had 80 milligrams of alcohol in 100 millilitres of blood, it is not necessary for me to determine whether the Crown has proven that she was in care and control of her car.
[78] Both charges are dismissed.
Released: March 20, 2017
Signed: Justice P. K. Doody