Court Information
Court: Ontario Court of Justice
Date: April 13, 2017
Court File No.: Minden trial Court
Parties
Between:
Her Majesty the Queen
— And —
Christos Trakosas
Before the Court
Justice: B. M. Green
Heard: March 22, 2017
Reasons for Judgment Released: April 13, 2017
Counsel
For the Crown: Ms. Repka
For the Defendant: Mr. Schachter
Judgment
B.M. Green J.:
A. Introduction
[1] Mr. Trakosas is charged with operating a motor vehicle while his blood alcohol readings exceeded 80 milligrams of alcohol in 100 milliliters of blood.
[2] Counsel for Mr. Trakosas fairly and professionally made a series of admissions to assist with focusing this trial on the disputed issues. The date, jurisdiction and identity of Mr. Trakosas as the person seated in the driver's seat of his SUV in his driveway were all admitted. The qualifications of the breath technician were also admitted. This type of conduct by informed and well prepared counsel should be both encouraged and commended.
[3] The only issue that was argued at the end of the trial was a Charter application about whether or not there were reasonable grounds for the Officer to arrest Mr. Trakosas for impaired driving and to make the subsequent demand for the seizure of his breath samples. The Court is being asked to determine whether or not Mr. Trakosas' rights as protected by sections 8 and 9 of the Charter were violated and, if so, whether the evidence of the breath readings ought to be excluded from the trial.
[4] The trial proceeded by way of a blended voir dire, a process that was agreed to by both the Crown and counsel for Mr. Trakosas.
B. Evidence
[5] The onus is on the Crown to establish that the Officer had reasonable grounds to make the arrest and subsequent demand because the Crown seeks to rely on breath samples obtained as a result of a warrantless seizure. The circumstances leading up to and surrounding the formulation of those grounds, particularly in a case where the grounds are disputed, are relevant to the Court's determination.
[6] The Crown called one witness to establish the existence of reasonable grounds to arrest Mr. Trakosas, Officer Brown.
Crown's Evidence
[7] PC Brown has been an OPP Officer since 2008 and he is also a qualified Intoxilyzer technician. On July 26th, 2016, he was in the process of responding to a violent domestic when he was dispatched to another call of an allegedly impaired driver.
[8] At 9:28 p.m., dispatch advised him that 911 received a call from a civilian witness who reported that he was following an impaired driver in Haliburton. Dispatch related that the caller provided detailed information about the vehicle. It was a GMC SUV, dark in colour, pulling a trailer with a specific marker of BYKR 986. The caller also stated that the male had been drinking for the past 3 hours but he was unsure of the driver's name. The Officer was told that the witness said that the vehicle was swerving all over the roadway.
[9] During cross examination, Counsel elicited a few more details about the information that was related to the Officer by the dispatcher prior to the arrest of Mr. Trakosas. Counsel read out part of the ICAD report which is the information that was related to the Officer from the dispatcher as opposed to what the 911 caller actually said to the call taker. The ICAD report confirmed that the Officer was told by the dispatcher that the suspected impaired driver was driving erratically. The Officer did not listen to the 911 tape until months after he arrested Mr. Trakosas. The 911 tape was not played for the Court and Officer Brown did not listen to the whole recording so he could not confirm if there were any inconsistencies between what the 911 caller actually said and what the dispatcher related to Officer Brown. What is indisputable is that, before Officer Brown arrested Mr. Trakosas, he was told by a presumably reliable source (the dispatcher) that a person reported that a suspected impaired driver was "swerving all over the roadway".
[10] The Officer conducted a MTO query of the marker provided by the witness and located the owner's address. He drove to the owner's address. At 9:40 p.m., the Officer attended the address and he witnessed a dark coloured GMC SUV with an attached trailer in motion in the driveway pulling in towards the residence. Later on in his evidence, the Officer repeated that the GMC was still in motion, proceeding down the driveway, towards his residence when police arrived on scene. During cross-examination, Officer Brown also indicated that he saw the brake lights come on at the rear of Mr. Trakosas' vehicle and then he got out of the GMC.
[11] The Officer observed Mr. Trakosas exiting his vehicle and he appeared to be unsteady on his feet. PC Brown described the unsteadiness as "not like stumble but maybe a side step on his way back" towards the rear of his SUV. This was the Officer's first observation of unsteadiness. He agreed that he may have been exiting his vehicle as Mr. Trakosas headed to the rear of his SUV.
[12] The Officer proceeded to engage Mr. Trakosas in a conversation at the rear of his vehicle. He immediately detected a strong odour of alcohol from Mr. Trakosas' breath. In addition, while speaking with him, he noticed that his speech was slightly slurred. He also described his speech as "not completely irregular". In cross examination, PC Brown agreed that he had never met Mr. Trakosas before so he was not familiar with his speech patterns or his normal gait. However, the Officer testified that later on, while they were at the station and at a time when he felt the symptoms of impairment were decreasing, he did not notice any further slurring or difficulties with Mr. Trakosas' balance even though he was moving around quite a bit.
[13] The Officer asked Mr. Trakosas about the consumption of alcohol and he admitted that he had finished "a drink" 10 minutes ago. The Officer did not ask for any further details with respect to what Mr. Trakosas drank other than the acknowledgement that he recently consumed a drink of alcohol.
[14] During the conversation that took place near the rear of Mr. Trakosas' vehicle, the Officer witnessed a second period of unsteadiness. He described Mr. Trakosas stepping back twice to regain his balance. Officer Brown explained that the weather was dry and it was summer time. He acknowledged that the driveway was on a steep angle and it was an uneven gravel surface.
[15] Various suggestions were put to the Officer that, when he arrived on scene, he exclaimed "I got you, I got you" to Mr. Trakosas which may have startled the Defendant and that PC Brown was the one who stumbled in the driveway. The Officer denied all of these suggestions.
[16] At 9:44 p.m., 4 minutes after arriving on scene, based on the information that he was given by the dispatcher and the observations that he made, PC Brown testified that he formed the belief that there were reasonable grounds to arrest Mr. Trakosas for impaired driving. PC Brown reached out to grab Mr. Trakosas' right wrist to effect the arrest. He pulled away and tried to walk away but this resistance was short lived. Mr. Trakosas quickly became compliant.
[17] Counsel suggested to the Officer that there were no time constraints that prevented him from taking further investigative steps while on scene. While the Officer agreed with that suggestion, there are of course statutory time constraints on any impaired driving investigation that require an Officer to make a demand and obtain breath samples as soon as practicable upon forming the prerequisite grounds.
[18] There was a dog in Mr. Trakosas' vehicle. After arresting Mr. Trakosas, the Officer ensured that the dog was removed from the GMC and put in the house before leaving the scene.
[19] Since the timing of the samples, the wording of the demand and rights to counsel are not in issue in this case, there is no need to review the evidence in detail that is not specifically relevant to the issues to be decided although all of the admissible evidence has been considered when assessing the credibility and reliability of the witnesses.
[20] Prior to leaving the scene, Officer Brown read Mr. Trakosas his rights to counsel and the standard caution. Mr. Trakosas told the Officer that he wanted to speak with Duty Counsel. While traveling back to the detachment and before Mr. Trakosas had the opportunity to exercise his rights to counsel, Mr. Trakosas provided more information to the Officer about his consumption of alcohol. The Officer was not asked any questions about the circumstances of these alleged utterances. For example, the Court is not aware of whether they were made in response to questions from the Officer, if they were spontaneous utterances, the nature of the conversation that preceded these statements or when the comments were made during his transport. There is no evidence that Mr. Trakosas waived his rights to counsel that he unequivocally invoked prior to this interaction during transport to the station.
[21] During the course of the trial, the Crown sought to introduce these statements for the purposes of the Charter voir dire but argued that they were not to be relied upon as evidence to prove Mr. Trakosas' guilt. Counsel initially objected but relented after the Crown cited the recent decision of R. v. Paterson, 2017 SCC 15 and submitted that this case stands for the proposition that the Crown does not have to prove the voluntariness of statements elicited for the purposes of a Charter voir dire. The Court was not asked to rule on the admissibility of these statements at that time. For reasons that will be discussed during the legal analysis, these statements should not have been introduced by the Crown and they will not be considered for any purpose.
[22] Once at the station, the Officer went through all of the appropriate procedures for booking, lodging a detainee and contacting duty counsel on his behalf as requested by Mr. Trakosas. While waiting for duty counsel to call back, PC Brown spoke to the 911 caller on the phone and the witness did not relate any signs of poor driving. The Officer described the witness as reluctant to provide information.
[23] While Mr. Trakosas was speaking with counsel, PC Brown began the process of preparing the Intoxilyzer 8000C and ensuring that it was in proper working order and ready to receive samples which included changing an expired alcohol standard solution. Since the breath room was more comfortable than the cells, after Mr. Trakosas finished his conversation with counsel, the Officer invited Mr. Trakosas to sit in the breath room until the machine was ready. The Officer testified that he performed a self-test to check the proper functioning of the machine and his breath reading was 0 which is consistent with the fact that he was on duty that evening.
[24] Once the machine was ready to receive a sample, the Officer proceeded to take the first sample which registered a reading at 11:05 p.m. of 125 mg of alcohol in 100 ml of blood. In terms of further observations at the station, the Officer advised the Court that he did not notice any odour of alcohol nor any stumbling at the station or during the 17 minute wait between the first and second sample even though Mr. Trakosas was standing and moving around at points. During cross-examination, he agreed that there was a faint smell of alcohol in the breath room.
[25] In between the breath tests, the Officer learned about some health issues that Mr. Trakosas related to him. He had lower back surgery, a torn left meniscus and a swollen left ankle. Counsel also elicited statements made by the Officer during the 17 minutes time period between the tests to challenge his evidence about the grounds for his beliefs at the roadside. Upon reviewing the recording, the Officer clearly stated that now that he had spoken to the complainant, the odour and "other stuff", even if it was just a couple of drinks he did believe that Mr. Trakosas' ability to drive was impaired but went on to add that it was "either over 80 or impaired".
[26] The Officer proceeded to take a second breath sample at 11:27 p.m. which registered a reading of 114 mg of alcohol in 100 ml of blood.
[27] The conversation with the 911 caller as well as the absence of any further indicia of impairment at the station influenced the Officer's decision not to lay a charge of impaired driving. By that stage in his investigation, he decided that the appropriate charge was a single count of operating a motor vehicle with over 80 mg of alcohol in 100 ml of blood.
[28] I do not accept Defence Counsel's submissions that Officer Brown "did no investigation when arriving at the scene" and/or "took the observations that fit impairment and used them to justify his grounds". The Officer spent 4 minutes with Mr. Trakosas and he related to this Court the totality of his observations in the context that those observations were made. Furthermore, Counsel submitted that he is "criticizing PC Brown for stating that he never considers alternative explanations such as medical issues." That was not Officer Brown's evidence. Rather, counsel had the following exchange with the Officer:
Q. And you, during the three minute conversation, asked no questions with regards to any medical issues we've established. Right?
A. No.
Q. And I'm going to suggest to you that was because you didn't want to ask anything that might detract from your grounds. Right?
A. No. It's in my practice not to ask medical questions why a person can't walk or drive properly.
Q. So, you just naturally – so, it's your practice to assume that it's due to impairment?
A. No.
The Officer never stated that he would not consider alternative explanations offered by detainees or that he was assuming anything.
[29] Officer Brown presented as an honest, forthright and candid witness. His evidence was unshaken in cross-examination.
Defence Evidence Called During the Voir Dire
[30] The only additional evidence to be considered with respect to the voir dire is the evidence of Mr. Trakosas.
[31] Mr. Trakosas is a 48 year old man who owns a couple of properties. At the time of this investigation, he started his day very early, travelling from Aurora to Minden to assist with moving some furniture and appliances. He agreed that he was operating a dark coloured GMC Yukon SUV with an attached trailer throughout the day. He admitted that he was the person in the driver's seat of the vehicle when the Officer arrived at his home. He disputed that the vehicle was in motion at that time or that he had been recently operating it.
[32] Mr. Trakosas related to the Court that he had a very long day of travelling and working which commenced shortly after 5 a.m. It was a hot summer day. During the day and into the evening, he took 2 breaks while visiting with his friends, John and Frank, who had been helping him. Each break was a significant period of time, approximately 3 or 4 hours. During the first break in the day, he admitted that he had a beer with his friend. Later on in the afternoon and into the evening while he was visiting with Frank at his place, he claimed that he "nursed" one drink that Frank poured into a Styrofoam cup which had an unknown quantity of ginger ale and whiskey. He did not describe the size of the cup.
[33] On the drive back home, Mr. Trakosas said that he felt tired. He only had 4 hours of sleep the night before, he had been up since very early in the morning and he had just "spent 3 days in a row" in Richmond Hill moving furniture. He advised that the trailer that was attached to his SUV may have been swaying slightly because of the manner in which it was attached to his SUV but that was not due to any poor driving on his part. He denied that he was swerving while driving his SUV. After he returned home, he claimed that he worked for about another hour loading more materials into the trailer. When he finished working, he decided to get back into his SUV with his dog to relax and enjoy the fresh air after a day in the city.
[34] Reviewing the totality of his evidence, it is evident that the doors to the SUV were closed and he was sitting inside the vehicle in the driver's seat. His dog was also enclosed in the back seat of the SUV. Even though he was sitting inside his GMC with all of the doors closed on a hot summer night, he denied that it was stuffy because the windows were open. While seated in his SUV, he testified that he drank 2 50 ml bottles of whiskey that he had in the trailer because he intended to offer them to his friend Frank. After consuming both bottles, he tossed the empties into the back seat. He exited his SUV and walked towards the back door to let out his dog.
[35] Mr. Trakosas' account of what happened after he returned home that night makes no sense and he contradicted himself at points. He said that he had just returned home after "being in Toronto for a few days". On a summer night, after travelling and working all day and being away for days, it defies common sense that Mr. Trakosas got back inside his SUV and closed the doors to enjoy the "fresh air". He was steps away from his home. Although Mr. Trakosas initially denied that there was any outdoor seating at least in the front of his home to relax in, he admitted during cross examination that he actually had a lake view veranda attached to his house that had seating.
[36] With respect to the little whiskey bottles that he said were in his trailer for his friend Frank, he just spent an entire day with Frank. He visited and drank alcohol with him for two different significant periods of time but he never obtained or offered these 2 bottles that he said he bought for Frank. Frank was with him throughout the day helping him to load and unload the trailer and he didn't give the bottles to him even though they were in the trailer. While he claims that he drank two small bottles of whiskey and then discarded them in the back seat of his SUV, this evidence was not put to Officer Brown who had searched the vehicle and located Mr. Trakosas' wallet.
[37] I do not accept Mr. Trakosas' evidence that he was home for some time loading materials into the trailer or that he was drinking in his SUV while enjoying the fresh air nor does it raise a doubt in my mind. I accept Officer Brown's evidence that Mr. Trakosas was in his driveway pulling up to his house when the police arrived on scene.
[38] With respect to the Officer's initial observation that Mr. Trakosas side stepped while he was walking back to the rear of his SUV, he claimed that he heard the Officer say "I got you, I got you" and that startled him. He agreed that he did stumble but it was because he was startled. Mr. Trakosas advised that his driveway was on a steep angle and it was a gravel surface. He also advised that he struggled with various medical issues. Nevertheless, other than claiming that he stepped back once when he first noticed the Officer, he specifically denied that he ever lost his balance in the driveway a second time on that evening. According to him, neither the surface of the driveway nor his medical issues contributed to or caused any unsteadiness. Instead, he claimed that the unsteadiness described by Officer Brown didn't happen at all. He claimed that Officer Brown, a seemingly healthy and sober police witness, stumbled on the driveway. PC Brown did not agree with the suggestions that he stumbled at any point.
[39] Although Mr. Trakosas disputed the credibility of the Officer's account, he confirmed aspects of the Officer's evidence with respect to his ability to observe him and the grounds for the arrest. Mr. Trakosas testified that he engaged the Officer in a conversation at the back of his SUV. In spite of Counsel's submission that Officer Brown's ability to observe Mr. Trakosas was negatively impacted by the area being "in the dark with no artificial light", Mr. Trakosas advised that the area was illuminated by sensor light. Mr. Trakosas agreed that he told the officer in response to queries about his alcohol consumption that he had "a drink" of alcohol and in response to a query about when he last had a drink, he replied "ten minutes ago". He also advised the Court that, during their conversation, the Officer told him that he smelled alcohol on him, that he was slurring his speech and that he was "unbalanced". He claimed that the Officer checked his pupils because "according to the Officer because of my breath and he said I stepped back a couple of times" and "he wanted to check my eyes", and then "he said he was going to arrest me".
[40] Mr. Trakosas related that after the Officer said he was going to arrest him, he turned to throw his hat in his SUV and he felt his arm being grabbed. He instinctively pulled back because of nerve damage. Clearly, he and the Officer had an exchange about him pulling away when he was being arrested although he claimed that it was a misunderstanding over him trying to throw his hat in his SUV.
[41] In contrast to the recollection of a sober police witness, Mr. Trakosas' recollection of the events that unfolded that night may have been influenced by his admitted consumption of alcohol. Furthermore, there were inconsistencies in his evidence and his account was incredulous at points.
[42] I accept Officer Brown's account of his observations of the state of the vehicle and the state of Mr. Trakosas when he arrived at his residence. I also accept that this Officer subjectively believed that he had reasonable grounds to arrest Mr. Trakosas. That does not end the Court's considerations. The Officer's subjective beliefs must be objectively reasonable. The objective component of the inquiry is whether a reasonable person placed in the position of the Officer would be able to conclude that there were reasonable grounds for the arrest and associated demand for a breath sample.
C. The Statements in the Back of the Cruiser During Transport
[43] Before addressing the specific legal issues to be decided in this case, an issue arose during the course of the trial that invites commentary by the Court.
[44] Both Counsel filed materials in advance of the trial. The Charter application specified that Mr. Trakosas was seeking the exclusion of his breath samples as evidence from the trial due to alleged violations of his Charter protected rights pursuant to sections 8 and 9 of the Charter. In response, the Crown detailed all of the grounds relied upon by the Officer for Mr. Trakosas' arrest but did not reference any post-arrest statements made by Mr. Trakosas to the Officer while being transported to the station, after he had invoked his rights to counsel and before he was given the opportunity to exercise those rights.
[45] During the trial, the Crown sought to elicit Mr. Trakosas' statements allegedly made during transport to the station and Counsel initially objected to the introduction of these statements on the basis that the Crown must prove the voluntariness of all statements made by detainees to persons in authority. Crown counsel provided the Court with the Supreme Court of Canada's recent decision of R. v. Paterson, 2017 SCC 15 and submitted that the Crown does not have to prove the voluntariness of statements in the context of voir dire. Counsel withdrew his objection and the trial proceeded.
[46] It is not entirely clear why the post arrest statements were introduced by the Crown at all considering the voir dire was only concerned with the reasonableness of the Officer's actions before he arrested Mr. Trakosas. As will be discussed in further detail, the Crown does not have to prove that the Officer's opinion about the grounds for arrest were true or even accurate or that the grounds persisted post-arrest. What must be established is, based on the information known to the Officer at the time of the arrest, whether he subjectively believed that he had reasonable grounds and that those grounds were objectively reasonable at the time when he was arrested Mr. Trakosas not afterwards. An arrest that is lawful does not become unlawful because an Officer continues the investigation and discovers more information.
[47] Presumably, the reason for introducing these statements was to rely on them to assess the credibility of the witnesses during the voir dire. The Court has a duty to ensure that the fair trial rights of an accused are protected. The introduction of these statements by the Crown for this purpose in the facts of this case was both unfair and unnecessary.
[48] It is trite law that statements obtained by the police from a detainee after the person has been read his/her rights to counsel, after s/he has asked to consult with counsel and before s/he has had an opportunity to exercise those rights would be a violation of the implementation component of that person's Charter protected 10(b) rights to counsel absent clear evidence of a waiver or they were spontaneous statements made without prompting by the police. The burden of proving an unequivocal waiver is on the Crown and it must be proved that it was both freely and voluntary given. The Supreme Court of Canada's decision on this issue in R. v. Prosper was decided more than 20 years ago. This decision is so seminal that Courts in Ontario frequently refer to the Prosper warning which imposes additional duties on Officers to remind a person who invoked their rights to counsel that they have the right to speak to counsel and the Officer must refrain from eliciting evidence until that right is implemented.
[49] After invoking his rights to counsel, there is absolutely no evidence that Mr. Trakosas waived his rights. Quite the contrary, when he arrived at the station, he exercised his rights to counsel diligently upon being provided with an opportunity to consult with Duty Counsel. Furthermore, this is not a case similar to the facts in R. v. Guenter, [2016] O.J. No. 3857 (Ont.C.A.) wherein the Crown introduced evidence regarding the spontaneity of the detainee's statements thereby assuring the Court that the statements were not made in response to queries by the police.
[50] The decision in Paterson was concerned with whether the Crown had to prove the voluntariness of statements during a voir dire. The Supreme Court, however, did not address nor did it alter the law with respect to whether a Court can rely on unconstitutionally obtained evidence that has been excluded from a trial. The general rule is, if a statement was obtained in violation of a Defendant's 10(b) rights and it is excluded from the trial pursuant to section 24(2), it will be excluded for all purposes regardless of whether the Crown intends to rely on the statements to incriminate the Defendant or impeach his/her credibility. Please see R. v. Calder and R. v. Rivera, 2011 ONCA 225.
[51] In the absence of any evidence to explain the circumstances of these statements and noting that the burden is on the Crown to establish a waiver, I have significant concerns that the statements obtained in the back seat of the cruiser breached Mr. Trakosas' rights to counsel and ought to have been excluded from the trial and not introduced during the voir dire. Despite this concern, I have not invited further argument with respect to section 24(2) for the exclusion of these statements because the statements should not have been admitted in any event. They are not probative of the factual or legal issues to be decided in this case. Furthermore, the authority cited by the Crown to justify the introduction of this evidence is not applicable to the facts of this case.
[52] In Paterson, the Supreme Court found that the Crown does not have to prove the voluntariness of a detainee's statements before they are admitted as evidence during a voir dire but this decision was concerned with statements which were made prior to the impugned state action. In addition, the disputed statements in that case were introduced for the limited purpose of assessing the Officer's state of mind not to impeach the credibility of witnesses called during the voir dire.
[53] The Supreme Court emphasized both the timing of the statements and the purposes for which the impugned statements were being introduced when deciding whether they may be relied on by a Court during a voir dire. The statements in issue in Paterson were made prior to Officers deciding to search the Detainee's home without a warrant. They were a part of the totality of circumstances known to and relied upon by the Officer at the time of the impugned state action. The statements contributed to the Officer's contemporary state of mind.
[54] The Supreme Court explained at paragraph 20 that "the inquiry is focused upon whether it was reasonable for him or her to rely upon the statement as forming grounds for the action under scrutiny." Furthermore, the Court specifically noted that voluntariness concerns do not arise in this context because of the:
… limited purpose for which this evidence may be used – going only to the state actor's state of mind and conduct and not to the ultimate reliability of the evidence in determining the guilt of the accused. It follows that admitting a statement made by that accused for that limited purpose without first establishing its voluntariness does not offend the rationales underlying the confessions rule. The confessions rule's driving concern for trial fairness and avoiding conviction upon inherently unreliable evidence simply does not arise at the voir dire stage. (Emphasis in original)
Similarly, at paragraph 23, in the context of impaired driving cases:
… Police may rely, for the limited purpose of forming grounds for the approved screening device demand, upon answers given roadside by drivers in response to questions about alcohol consumption. To be clear, such evidence entails, as the Court said, "compelled direct participation" by the driver which would be inadmissible at trial to prove impairment. The limited purpose of justifying further investigation, however, coupled with the absence of concern for trial fairness and reliability, supports its admissibility at a Charter voir dire considering the constitutionality of the investigation itself and, in particular, of the reasonableness of the officer's grounds for demanding a breath sample. (Emphasis in original)
[55] The Supreme Court stressed that "in dynamic and emergent circumstances, police officers must be permitted, within constitutional bounds, to respond and investigate with dispatch" (emphasis in original).
[56] The alleged Charter violations that this Court has been asked to decide concern PC Brown's state of mind at the roadside prior to arresting Mr. Trakosas and prior to him being transported to the station. The Officer had to make a quick but informed decision about whether reasonable grounds existed to arrest Mr. Trakosas. Any statements that he made to PC Brown during the course of a dynamic investigation in his driveway are admissible and probative of the Officer's state of mind when he was formulating the grounds for his arrest. Accordingly, the Crown would not have to prove the voluntariness of statements prior to Mr. Trakosas' arrest. In contrast, any statements that he made about what he had to drink after he was arrested could not possibly have informed the Officer's decision in these circumstances. What Mr. Trakosas said to Officer Brown after he was arrested, after the breath demand was made and while he was being transported to the station, did not influence or contribute to the Officer's subjective belief that he had reasonable grounds prior to arresting him for impaired driving nor do these statements assist with determining if the pre-existing grounds were objectively reasonable.
[57] These post-arrest statements were not introduced to demonstrate the constitutionality of the Officer's investigative steps at the roadside. Rather, it appears that these statements were tendered to undermine the credibility of Mr. Trakosas' account during the voir dire and/or to bolster the credibility of PC Brown's accounts with respect to the factors that he relied upon prior to arresting Mr. Trakosas. The only other conceivable purpose is to demonstrate that the grounds for the arrest persisted afterwards but that is not relevant to the issues to be decided in this case.
[58] The decision in Paterson is distinguishable and cannot be relied on to justify the introduction of arguably unconstitutionally obtained and/or irrelevant evidence that formed no part of the information relied upon by a state actor at the time of the impugned action. Since these statements were not relied upon in any way to inform the Officer's subjective belief or to determine whether it was objectively reasonable, these statements had no evidential value in the context of this voir dire. What Mr. Trakosas said to Officer Brown after he was arrested was of no probative value and its admission would prejudice his right to a fair trial. As a result, the Court has not considered them in arriving at a decision about the constitutionality of the Officer's actions or the credibility and reliability of either witness.
D. Section 8 and 9 of the Charter
[59] As noted, Counsel is putting the Crown to their onus of establishing that there were reasonable grounds for the arrest of the Applicant and the subsequent seizure of his breath samples. The section 9 application is inextricably tied to the same considerations.
[60] One of the most strenuous points argued by counsel for Mr. Trakosas is that the Officer should have taken further investigative steps at the roadside to confirm the grounds that he was relying on to formulate his belief. He asserted that the Officer could have asked more questions about what Mr. Trakosas had to drink and he could have engaged in the standard field sobriety tests or could have made arrangements for an ASD roadside breath sample.
[61] I reviewed the Ontario Court of Justice decisions provided by Counsel. Counsel fairly conceded that he was not relying on the cases tendered for the facts, rather, he proffered them for the statements of law. There is a litany of applicable binding appellate authorities from the Supreme Court of Canada, the Ontario Court of Appeal and the Ontario Superior Court that are directly on point and set out the law.
[62] In R. v. Chehil, the Supreme Court of Canada found that that while exculpatory, neutral, or equivocal information during the course of a road side investigation cannot be disregarded, the obligation of the police to take all factors into account does not impose a duty to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations.
[63] Similarly, in R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 at paras. 60 and 70 (Ont.C.A.) the Ontario Court of Appeal unequivocally stated that:
[60] There is no minimum time period nor mandatory questioning that must occur before an officer can objectively have reasonable and probable grounds. There is no requirement that a roadside sample be taken. The ASD provides evidence of the blood alcohol concentration in the suspect's blood, not evidence of impairment. The trial judge correctly found that if the officer subjectively and objectively had reasonable and probable grounds that withstand judicial scrutiny, the failure to invoke the roadside screening provisions was irrelevant. If the officer's belief failed to meet the requisite standard, there was a s. 8 Charter violation.
And further:
[70] The issue is not whether the officer could have conducted a more thorough investigation. The issue is whether, when the officer made the breath demand, he subjectively and objectively had reasonable and probable grounds to do so. That the belief was formed in less than one minute is not determinative. That an opinion of impairment of the ability to operate a motor vehicle can be made in under a minute is neither surprising nor unusual.
[64] As long as Officer Brown honestly held a subjective belief that there were reasonable grounds for the arrest and that belief was objectively reasonable in the circumstances, it is irrelevant to the Court's inquiry whether he could have taken more steps to confirm or refute those grounds.
[65] With respect to all of the legal issues argued by counsel, the Court is guided by the decisions of R. v. Censoni, [2001] O.J. No. 5189; R. v. Shephard, 2009 SCC 35; R. v. Bush, 2010 ONCA 554; and R. v. Leppanen, [2015] O.J. No. 2323 (Ont. S.C.J.). Each of these decisions provide extensive reviews of the applicable law which can be summarized as follows:
1. In the context of a breath demand, the reasonable grounds standard is not an onerous test. An Officer need not have anything more than reasonable grounds to believe that the driver committed the offence of impaired driving or driving "over 80" before making the demand. The Crown does not have to prove that the Officer had a prima facie case before pursuing an investigation.
2. The Officer must possess a subjective belief that there are reasonable grounds for the arrest and that belief must be supported by objective facts. The objective component is satisfied when a reasonable person placed in the position of the Officer would be able to conclude that there were reasonable grounds for the arrest.
3. A Court must be cognizant of the dynamics at play in an arrest situation which necessitate Officers making quick but informed decisions. The Officer may make a decision based on available information that is less than exact or complete. That an opinion of impairment of the ability to operate a motor vehicle can be made in minutes is neither surprising nor unusual.
4. The collective totality of the circumstances known to the Officer must be considered not isolated factors shorn from their context. Moreover, the Officer's subjective belief need not be the only inference that can be drawn from a particular constellation of factors but it must be a reasonable inference.
5. The existence of other explanations for individual facts does not detract from the existence of those factors. The obligation on the police to take all factors into account does not impose an additional duty to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations. There is no legal obligation on an Officer investigating an impaired driving to use a roadside screening device before making an Intoxilyzer demand.
6. In assessing whether reasonable grounds existed, Trial Judges are often improperly asked to engage in a dissection of the Officer's grounds looking at each in isolation, opinions that were developed at the scene "without the luxury of judicial reflection". It is neither necessary nor desirable to conduct an impaired driving trial as a threshold exercise in determining whether the Officer's belief was reasonable.
7. An assessment of whether the Officer objectively had reasonable grounds does not involve the equivalent of an impaired driver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are present and which are absent as the essential test. There is no mathematical formula with a certain number of indicia being required before reasonable grounds objectively existed. The absence of some indicia that are often found in impaired driving cases does not necessarily undermine a finding of reasonable grounds based on other observed indicia and available information.
8. A Trial Court must consider whether the observations and circumstances articulated by the police are rationally capable of supporting the inference of impairment which was drawn by the Officer. The Crown does not have to prove that the inferences drawn were true or accurate. That is, the factors need not prove the Defendant was actually impaired, that standard of proof is reserved for a trial on the merits.
9. There is no necessity that the Defendant be in a state of extreme intoxication before the Officer has reasonable grounds to arrest. Impairment may be established where the prosecution proves any degree of impairment from slight to great. 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.
10. The issue is not whether the Officer could have conducted a more thorough investigation. In an impaired driving investigation, the Court is to consider whether there were honestly held reasonable grounds to believe that the suspect's ability to drive was even slightly impaired by the consumption of alcohol. The issue to decide is whether, when the Officer made the breath demand, s/he subjectively believed that s/he had reasonable grounds to do so and whether that subjective belief was objectively reasonable.
[66] Inflation of the "reasonable grounds" standard appears to be a common error that is corrected on appeal. A very helpful appellate decision on this issue is R. v. Hunt, [2014] O.J. No. 4255 (Ont.S.C.J.). Submissions about the absence of certain roadside investigative steps, speculation about other explanations for the signs of impairment and the lack of further indicia post arrest conflate the issues to be decided in a voir dire. The case law is clear that roadside tests are unnecessary once the Officer formed the requisite grounds. The Crown is under no legal obligation to proffer evidence to establish that the Officer has continued to observe signs of impairment after he formed the subjective belief as required. This Court must consider whether the observations and circumstances articulated by the Officer and accepted by the Court at the time that he made the decision to arrest Mr. Trakosas are rationally capable of supporting reasonable inferences of impairment from slight to great drawn by the Officer not whether those beliefs were true or even accurate. That is the ultimate issue for the Court to decide.
[67] The time period that is relevant for this Court's consideration with respect to the alleged violations of sections 8 and 9 of the Charter are the facts known to the Officer that he considered prior to arresting Mr. Trakosas. PC Brown was entitled to rely on incomplete information as part of a constellation of factors when he made his determination about the existence of grounds i.e. the reported consumption of "a drink". Once he formulated an honestly held subjective belief that there were reasonable grounds to arrest Mr. Trakosas for impaired driving, further investigative steps were not warranted.
[68] There is nothing improper about the Officer continuing his investigation after he arrested Mr. Trakosas while they were at the station. Quite the contrary, that conduct should be encouraged. PC Brown fairly considered all of the additional facts that he learned after arresting Mr. Trakosas when he decided what charges ought to be laid against him. Although he mistakenly articulated the standard before laying charges as requiring proof beyond a reasonable doubt, that error only benefitted Mr. Trakosas. This Officer need only have possessed reasonable grounds to believe an offence of impaired driving was committed before adding that count to the information.
[69] PC Brown professionally and diligently considered all of the factors known to him when he decided that he did not have the grounds to lay the impaired driving charge. His continuing investigation does not alter the factors considered by him prior to Mr. Trakosas' arrest or that the Officer subjectively believed that there were reasonable grounds to arrest him and make a demand for a breath sample.
E. Conclusion
[70] In the facts of this case, there are a constellation of readily apparent facts that fully support both the Officer's subjective belief and the objective existence of reasonable grounds for the arrest of the Mr. Trakosas for impaired driving. In summary:
A concerned person called 911 to report that he was following an impaired driver who had been consuming alcohol for 3 hours;
The 911 caller provided detailed information about the make, colour and marker on the vehicle;
The dispatcher advised the Officer that the suspect was swerving all over the roadway while driving;
The Officer ran the marker and it came back to Mr. Trakosas' address. He arrived at that address within 12 minutes of the call and he observed a vehicle that matched the description provided pulling into the driveway;
The Officer made observations of Mr. Trakosas initially stumbling when he exited the vehicle as well as subsequent unsteadiness while speaking with him;
Mr. Trakosas admitted to recent consumption of "a drink" of alcohol;
Mr. Trakosas had a strong odour of alcohol on his breath; and
His speech was slightly slurred.
[71] These indicia considered cumulatively are more than sufficient to establish that there were reasonable grounds to believe that Mr. Trakosas' ability to drive was even slightly impaired by the consumption of alcohol. As a result, Mr. Trakosas' rights as protected by sections 8 and 9 of the Charter were not infringed by the arresting Officer.
[72] In the absence of any Charter breach, I have considered the totality of the evidence introduced by the Crown on the trial proper. I find that Mr. Trakosas' breath samples were taken pursuant to a valid demand, they were taken as soon as practicable and the first sample was taken not later than 2 hours after Mr. Trakosas was operating a motor vehicle. Each breath sample was received directly into an approved instrument that was operated by a qualified technician with an interval of at least 15 minutes between each sample. The readings were respectively 125 and 114 mg of alcohol in 100 ml of blood.
[73] Accordingly, I find Mr. Trakosas guilty of the offence as charged that he was operating a motor vehicle after consuming alcohol in such quantity that the concentration in his blood exceeded 80 mg of alcohol in 100 ml of blood.
Released: April 13, 2017
B.M. Green J.