Court File and Parties

Ontario Court of Justice

Date: March 20, 2017

Court File No.: Brampton 15-10819

Between:

Her Majesty the Queen

— and —

Noy Perez Suris

Before: Justice J. W. Bovard

Heard on: December 5, 6, 2016

Reasons for Judgment released on: March 20, 2017

Counsel:

• Ms. K. Slate, counsel for the Crown
• Mr. R. Saxton, counsel for the defendant Noy Perez Suris

Reasons for Judgment

Bovard J.:

Introduction

[1] These are the court's reasons for judgment after the trial of Mr. Noy Perez Suris on charges of impaired driving and 'Over 80'.

Issues

[2] The issues are whether the arresting officer breached Mr. Suris' rights under section 8 of the Charter, and if she did, should the court pursuant to s. 24(2) of the Charter exclude the evidence obtained?

[3] The defence argues that the arresting officer did not have reasonable and probable grounds to arrest Mr. Suris for impaired driving and make a demand for breath samples. Since the defence does not take issue with the rest of the Crown's case, I will only review the evidence that pertains to the Charter issues.

The Evidence

[4] At about 12:44 p.m. on the day in question, Ms. Marie Sansait was in a car with her family on the QEW. She saw a car swerve out of the flow of traffic and hit a wall. Then it swerved back into traffic. As they drove on they passed a blue car that had stopped on the shoulder after having crashed into the guardrail. A man using a cell phone was standing next to the car, pacing back and forth. She was not sure if it was the same car that she saw hit the wall.

[5] Her brother who was driving the car that she was in pulled over to the side of the road. From there Ms. Sansait called 911. They left before any emergency personnel arrived.

[6] Officer Skleryk has been a police officer for 18 years. She arrived on scene at 1:01 p.m. She saw the blue car smashed against the guardrail. It was severely damaged. The airbags had deployed. She saw Mr. Suris talking on his phone. He was walking around the car. She noticed a bump and a cut on his head. An officer that was already on scene when she arrived told her that Mr. Suris was the driver of the blue car. He did not mention anything about alcohol being involved.

[7] Mr. Suris told Officer Skleryk that a driver had cut him off, which caused the accident. He said that he was okay and that he did not want medical attention. But approximately five minutes later when the paramedics arrived, he agreed with her suggestion that he let them examine him.

[8] Since Officer Skleryk had not spoken to Mr. Suris "for an extended period of time or anything like that", she went into the ambulance at 1:10 p.m. "to ensure there was no alcohol involved in the accident and to check on his injuries".

[9] She spoke to him while the paramedics checked his blood pressure. One of the paramedics told her that the other paramedic said that she had smelled alcohol on Mr. Suris' breath. Officer Skleryk got within one foot of Mr. Suris' face and detected the odour of an alcoholic beverage on his breath. She had not smelled this when she spoke to him outside of the ambulance because she was not close to him. Also, there were fluids leaking from his car which create an odour that can mask other odours.

[10] Officer Skleryk asked him how much alcohol he had drunk. He said "Quite late last night. I was seeing these women". Then he mumbled some things that she could not understand. She asked him again how much he had drunk. He said that he drank a quarter bottle of rum. His last drink was at about 3:00 a.m.

[11] The paramedics said that they wanted to take him to the hospital because he had a head injury. Mr. Suris agreed to go to the hospital. In these circumstances and given the seriousness of the accident, Officer Skleryk was concerned with his injuries so she wanted to get him to the hospital "sooner, rather than later". This concern caused her to refrain at that time from making an Approved Screening Device (ASD) breath demand.

[12] Officer Skleryk retrieved some tools from Mr. Suris' car at his request and at 1:18 p.m. they left for the hospital. The officer followed the ambulance in her cruiser.

[13] On her way to the hospital, Officer Skleryk received information about the accident from her dispatcher. The dispatcher told her that one witness reported that he or she saw a blue car go around a vehicle that was stopped in front of him and lose control. The other witness said that he or she saw a blue car "on the ramp from Evans go across all lanes into the left steel guardrail". Officer Skleryk interpreted this to mean that Mr. Suris did this for no apparent reason.

[14] Officer Skleryk arrived at the hospital at 1:24 p.m. She took an ASD into the hospital because she was not sure yet whether she was going to arrest Mr. Suris for impaired driving or administer an ASD breath test to him. She wanted to speak to him and see how he was doing. When she had spoken with him before he spoke with an accent so she was not sure yet whether he was slurring his speech. She also wanted to check out his movements. She noticed "something going on with his eyes" but she thought that could have been a result of the airbags having hit him in the face.

[15] Officer Skleryk was about to read the ASD breath demand to Mr. Suris when he told her to arrest him because he knew that he would fail. The officer said that at that point she "pretty much believed what he was saying, that he had been drinking and – and he knows what he had been doing that previous night more than I did and that was kind of the final straw that cemented in my belief that he was impaired while driving a motor vehicle". So at 1:28 p.m. she arrested him for impaired driving.

[16] Officer Skleryk said that what changed from the moment before when she was about to read him the ASD breath demand was his demeanour – the way he said to arrest him because he would fail the breath test anyway. She thought that he was basically saying that he was drunk.

[17] Officer Skleryk also based her conclusions on the information of his driving that the witnesses reported. Defence counsel suggested to her that Mr. Suris crossing over four lanes of traffic and into the guardrail was a neutral factor because it could have been a result of something else other than his ability to drive his car being impaired by alcohol. Officer Skleryk disagreed.

[18] She said this goes contrary to her 18 years of experience with drinking and driving cases. She testified that "A lot of times going across the lanes and crashing into the barrier is an indication of them being completely drunk and not knowing what they're doing or passing out because they've been drinking. There are other possibilities, but I wouldn't say it's a neutral factor it's definitely more…"

[19] Defence counsel expressed disbelief that Mr. Suris would be able to cross four lanes of traffic without hitting another vehicle. Officer Skleryk replied that although traffic was "heavier because of the Pan Am games" it was still possible that Mr. Suris could manage to cross four lanes of traffic without hitting another car. She said that "He was lucky and all the other motorists were lucky. Unfortunately, I have seen very many accidents in – in my career and it's – it's amazing how many people have done this kind of thing and not hit other vehicles. It's – it's lucky. He had a better chance of hitting vehicles, I totally agree with you, but he didn't and it was a luck thing"

[20] The defence asked her whether it would have been better to administer an ASD breath test to Mr. Suris rather than to arrest him for impaired driving. She responded:

As said, from what my belief was at the time, if I have the – if I believe I have the grounds I will go that way in terms of impaired driving. So at that time and I believed that I had enough grounds to arrest him for impaired driving. There are cases where I have accidents that I don't have witnesses and I have very little from what I have, that I have done the approved screening device. In this case I had a little more then – then those cases. So I do believe I had enough grounds at that time to go ahead with the impaired driving.

[21] After reading him his s. 10(b) rights and cautioning him she made a demand on him for breath samples into an Intoxilyzer.

[22] Officer Cannon, the qualified Intoxilyzer technician, arrived at the hospital at 1:59 p.m. He spoke to Officer Skleryk who gave him her grounds for arrest. While he was setting up the Intoxilyzer, Mr. Suris commented that they would find a glass in the car with alcohol in it and that he was going to fail the breath tests "so bad". He noticed that Mr. Suris had the odour of an alcoholic beverage on his breath.

[23] Officer Cannon concluded the breath tests at 3:05 p.m. Mr. Suris' readings were 149 and 139 milligrams of alcohol in 100 milliliters of blood. Officer Cannon's certificate of a qualified technician is exhibit 2.

[24] After Mr. Suris was released from the hospital Officer Skleryk took him back to the detachment and served him with a copy of the certificate and other required documentation. She released him at 4:52 p.m.

[25] Officer Ubaidullah arrived on scene at 12:55 p.m., just a few minutes before Officer Skleryk said that she arrived. He said that she was already there but nothing turns on this inconsistency.

[26] Officer Ubaidullah examined Mr. Suris' car and concluded that it was a "demolished vehicle". After Mr. Suris' car was towed to the police detachment he searched it and found a glass cup on the driver's side where the foot rest is around the gas pedal. The glass had a very strong odour of alcohol.

[27] Mr. Suris testified only on the Charter application. He complimented the police on a job well done saying that "Pretty much everything that it was said with all the – the three officers, they is quite right"

[28] Mr. Suris was very intent on explaining that his car has a four cylinder engine, which leaves a lot of empty space in the front end. This means that "the front is meant to be collapsed…it doesn't really take a lot to collapse all that". He stated further that "So I just want to explain that. So when they say there was a lot of damage on the car, I don't want – although – yes, I was on the influence…"

[29] His description of how the accident occurred was very difficult to follow. It is impossible to paraphrase so I will reproduce it verbatim.

I could be wrong, but I do believe, and that's where I stand for, I was on the – let's see here, so left – no. Left, yeah. There's left lane – there was no shoulder on the left lane. So there was the left lane, the – another lane and I was trying to pass this guy and for some reason he didn't want me to pass. So I found the – I tried several times to pass him, I couldn't. I try – at one point I – I thought that I was – I was going to be able to pass him, obviously didn't, and that's when the car from this - this is the – the – the – the left lane, so when I – when I went to pass him into this lane to get around this guy so I can go ahead, the other guy got me and that's when I we like this. That's what I believe what – what I strongly stick to. So when I went like this, this guy here – obviously there was not room, but he actually stopped. It was actually pretty close to me – wasn't that close to me, I take that back. So if I – I know that street really, so that street has four lane then it has a ramp. I was not coming from the ramp; I was coming from Islington and Kipling So - because I heard they say that I was coming down on the ramp, there's no way I was coming down on the ramp. And that ramp where the accident happening, it happened few meters after the ramp, like officer…but he – what I'm trying to say is, the wall – there's actually a shoulder, You can fit a full car on the – on the shoulder. So if they keep saying that I hit the wall, so now instead of talking four lanes we're talking five because even the – the on ramp lane is- there are two. So there is no way that I can actually come across from one end to another end. There is no way. It – I – it could be possible only if I go on an angle. So – because the cars are going this way so it would have to be that way. For me coming like this, I'm missing a bunch of people, no.

[30] In cross-examination, he said that he backed off when the other driver would not let him pass. The other driver backed off as well. Then "as soon as I noticed that he was back and I said okay, I can fit in now. And then as soon as I fit in that's when I – when everything went and that's what I remember and that is what I will like to stick to".

[31] Mr. Suris said that after the accident he got out of his car and examined the damage. He got some things out of the car and put them on the roof. Then he smelled "something different". He saw coolant leaking. In addition, he noticed that the battery was damaged and that it was leaking acid.

[32] With regard to the glass that Officer Ubaidullah found in his car, Mr. Suris said that he did not realize that it was in the car until he was already driving to drop off some persons. He appeared to say that the glass belonged to his passengers. He said that he told Officer Skleryk about the glass and that he was "screwed" because he was "under the influence".

[33] Regarding how much he drank, he testified that he could have had more than the quarter bottle of rum. He disagreed that the alcohol affected his ability to drive, however.

[34] That was all of the evidence.

The Position of the Defence

[35] Mr. Saxton, defence counsel, attacks Officer Skleryk's reliance on the civilian witness's testimony that Mr. Suris crossed four lanes of traffic and collided with the guardrail. He says that "it's patently unreasonable that a car could go across four lanes of highway traffic on early Saturday afternoon without – without colliding with another car on his way across".

[36] I do not agree that it is "patently unreasonable". And in any case, "unreasonable" things do happen. One might say that it is highly unlikely, and Officer Skleryk conceded this, but she also said that in her 18 years of experience she has seen this occur more than once. Her dispatcher told her that a witness had called in and reported that this occurred. I find that she was entitled to rely on this information in forming her reasonable and probable grounds for arresting Mr. Suris for impaired driving.

[37] Mr. Saxton also pointed out that when Officer Skleryk entered the hospital she brought her ASD because she was still unsure about whether she had reasonable and probable grounds to arrest Mr. Suris for impaired driving. He submits that Mr. Suris' statement that she should just arrest him because he was going to fail the test anyway was not sufficient to push the circumstances to the level of reasonable and probable grounds to arrest him for impaired driving.

[38] I disagree. Officer Skleryk was very conscientious in forming her grounds. She interpreted what Mr. Suris said as an admission that he was drunk, or at least that his ability to operate a motor vehicle was impaired by alcohol. In the circumstances of this case, I find that she was entitled to so.

[39] Justice Hill pointed out in R. v. Censoni that:

In dealing with probabilities relating to human behaviour, a trained officer is entitled to draw inferences and make deductions drawing on experience: Jacques and Mitchell v. The Queen (1996), 110 C.C.C. (3d) 1 (S.C.C.) at 12 per Gonthier J.; Regina v. Simpson at 501 (quoting U.S. v. Cortez, 449 U.S. 411 (1981) at 417-8); Regina v. Cayer (1988), 66 C.R. (3d) 30 (Ont. C.A.) at 45 per curiam (leave to appeal refused [1989] 1 S.C.R. vi) (quoting with approval Regina v. McIntosh (1984), 29 M.V.R. 50 (B.C.C.A.) at 60-61 per Esson J.A.). To this extent, there may be some modification of the objective test of reasonable grounds or as stated in Regina v. Oduneye at 168-9:

It is therefore, in a sense subjective because what the court looks into is the state of mind of the officer, what did he understand the circumstances to be. It's in a sense, also objective because the court objectively examines the circumstances as understood by the officer.

[40] In paragraph 41, Justice Hill pointed out that:

In Regina v. Smith (1996), 105 C.C.C. (3d) 58 (Ont. C.A.) at 68, Doherty J.A. noted in the context of a drinking/driving investigation, that the police are involved "in making a quick but informed decisions of whether there are reasonable and probable grounds to believe that the driver is impaired" (emphasis added). Again, at pages 74-5, Doherty J.A. speaks of the police officer confronted with making "a quick assessment" of the circumstances.

[41] Further, in paragraph 43 Justice Hill observed that:

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 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.

[42] After considering all of the circumstances, and the above cited jurisprudence, I find that Officer Skleryk had the required objective and subjective basis on which to form reasonable and probable grounds that Mr. Suris was driving a motor vehicle while his ability to do so was impaired by alcohol. Therefore, I find that she had reasonable and probable grounds to arrest Mr. Suris for impaired driving and to make a demand that he provide breath samples into an Intoxilyzer.

Disposition

[43] Since I found that Officer Skleryk had reasonable and probable grounds to arrest Mr. Suris for impaired driving and to make a demand for breath samples, I find that the defence failed to prove on a balance of probabilities that the officer breached Mr. Suris' rights under s. 8 of the Charter. Therefore, I dismiss the application.

[44] There being no other defence raised, I am satisfied that the Crown proved beyond a reasonable doubt that Mr. Suris is guilty of the 'over 80' charge. I find Mr. Suris guilty of the 'over 80' charge and register a conviction. I enter a conditional stay on the impaired driving charge.

[45] Released: March 20, 2017

Justice J. W. Bovard