Court Information

Date: June 5, 2017

Court File No.: 16-490 Orangeville

Ontario Court of Justice

Central West Region

Parties

Between:

Her Majesty the Queen

— and —

Daniel Baumlisberger

Judicial Officer and Counsel

Before: Justice Richard H.K. Schwarzl

Heard on: April 28, May 9 and 15, 2017

Reasons released on: June 5, 2017

Counsel:

• Robert Fetterly, Q.C. for the Crown
• Brian Starkman for the Defendant

Decision

SCHWARZL, J.:

1.0: INTRODUCTION

[1] On April 1, 2016 the Defendant, Daniel Baumlisberger, was charged with two criminal charges: impaired driving and driving with excess blood alcohol. At the trial, the prosecution led evidence from two police witnesses while the defence called no evidence.

[2] With respect to the impaired driving charge, the central issue is whether or not the Crown has proven beyond a reasonable doubt that the ability of the Defendant to operate a motor vehicle was impaired by the consumption of alcohol.

[3] As for the "over 80" charge, the main question, framed in terms of a constitutional issue, is whether or not the police had lawful grounds to make a breath demand pursuant to section 254(3) of the Criminal Code of Canada.

2.0: ISSUES AND ANALYSIS

2.1: Did the police have grounds to make a breath demand?

2.1.1: Positions of the Parties

[4] The defence submits that the officer in charge, P.C. Fonte-Alvarez, did not have grounds to reasonably believe that the Defendant's ability to operate a motor vehicle was impaired by alcohol. They submit that, at best, the police officer has a lawful basis to make a roadside screening demand, but nothing more. It is urged upon me to find that the demand made by P.C. Fonte-Alvarez "overshot the mark" and thus violated the Defendant's constitutional rights to be free from what is alleged to be an arbitrary detention and an unlawful search and seizure of his breath. The defence submits that if I find that the police violated Mr. Baumlisberger's rights that I should exclude any and all evidence against him following his arrest and dismiss both charges.

[5] The Crown submits that P.C. Fonte-Alvarez had a sufficient legal basis to make a breath demand, which is the subject of a higher standard than is a screening demand. The Crown further submits that if the officer did violate the Defendant's rights that excluding any evidence is a disproportionate remedy in the circumstances of this case.

2.1.2: Applicable Legal Principles

[6] Grounds to arrest must be honestly and subjectively held by the officer and his honest belief must be objectively justified: R. v. Shepherd, 2009 SCC 35; R. v. Bernshaw, 95 C.C.C. (3d) 193 (S.C.C.) at p. 216; R. v. Storrey, 53 C.C.C. (3d) 316 (S.C.C.); R. v. Bush, 2010 ONCA 554. This same standard applies to breath demands made by police officers.

[7] The officer is not required to establish a prima facie case for conviction before making the arrest, or to consider all of the alternative explanations for the observed conduct: R. v. Mitchell, [2004] O.J. No. 435 (S.C.J.) at ¶10; R. v. Bush, supra.

[8] "Reasonable grounds" is essentially an opinion. As such, the belief, based on perceived factors, is frequently a compilation of a state of conditions that are too subtle and complicated to be narrated separately and distinctly. In dealing with probabilities relating to human behaviour, a trained officer is entitled to draw inferences and make deductions based on his experience: R. v. Censoni, [2001] O.J. No. 5189 (S.C.J.).

[9] The Court must consider the totality of the evidence for the witness' reasonable grounds to believe the subject is impaired to drive by alcohol or drugs, and not any individual sign on its own: R. v. Huddle, 1989 ABCA 318; R. v. Saulnier, [1990] B.C.J. No. 161 (C.A.); R. v. Elvikis, [1997] O.J. No. 234 (Gen. Div.) at para. 24; R. v. McMillan, [2003] O.J. No. 4284 (S.C.J.). The test is whether, objectively, there were reasonable and probable grounds to believe the suspect's ability to drive a motor vehicle was impaired by the consumption of alcohol even slightly: R. v. Bush, supra, at ¶ 48; R. v. Gunn, 2012 SKCA 80.

2.1.3: Analysis

[10] In his evidence P.C. Fonte-Alvarez said that his investigation included the following:

(a) the complaint at 4:45 a.m. from a tow operator that an older Buick was driving in a weird manner and that the driver might possibly be impaired;

(b) on reacting to the complaint the officer followed the suspect car and saw it driving very slowly and swerving slightly over the fog line of its lane;

(c) on speaking with the Defendant, who was the driver, the officer observed that his breath smelled strongly of an alcoholic beverage, his eyes were red and bloodshot, his motor skills were slow with fine movements like removing his licence from his wallet, his speech was slurred (but the officer could not identify any particular reasons for his observation regarding speech); and

(d) after the Defendant got out of his car he appeared a bit unbalanced and leaning to his right on a level paved surface.

[11] The officer further testified that in forming reasonable grounds to believe that the ability of the Defendant to operate a motor vehicle was impaired by alcohol he relied on the totality of his investigation to that point but he discounted the slow driving as likely having been caused by an awareness that the police car was right behind him.

[12] P.C. Fonte-Alvarez agreed that the signs of impairment at the roadside were slight but disagreed with a suggestion that at best he had only enough grounds to demand that the Defendant submit to a roadside screening test. The officer acknowledged that his duty notes, his general occurrence report, and his case synopsis all contained the phrase "formed reasonable and probable grounds that the Defendant had alcohol in his body." He also agreed that he never wrote down anywhere that he had reasonable grounds to believe that the ability of the Defendant to operate a motor vehicle was impaired by the consumption of alcohol.

[13] P.C. Fonte-Alvarez was firm that his choice of phraseology in his reportage was reflective only of poor wording, and not his frame of mind at the time. He said that he is a qualified technician and had plenty of experience at the time in knowing and understanding the difference between the standards to make a screening or a breath demand. He stated the fact that he charged the Defendant for impaired driving together with the constellation of his observations prior to arrest demonstrated that he had proper reasons to made a breath demand and not merely a screening demand.

[14] The officer's testimony was credible and reliable. He was an exceedingly fair witness by admitting that at the time of his evidence he could not recall what it was about the Defendant's speech that caused him to think it was slurred, yet never backed off from saying it was indeed slurred. He gave the Defendant the benefit of the doubt regarding his slow speed when assessing the totality of the road evidence. Despite being a youthful officer, P.C. Fonte-Alvarez is experienced in these kinds of investigations and clearly knows his legal duties when it comes to screening and breath demands.

[15] I accept the officer's evidence that his failure to state in any of the documentation he prepared anything more than the Defendant had alcohol in his body was reflective only of incomplete wording and not of his state of mind at the time of the arrest and breath demand.

[16] Looking at the unshaken evidence of P.C. Fonte-Alvarez that he possessed a complaint of weird driving in the early morning, that the Defendant's car was weaving slightly including going over the fog line before pulling over, that Defendant's appearance included the smell of alcohol on his breath, red eyes, and that he displayed minor coordination problems such as slow fine motor movements and leaning while standing, I find that P.C. Fonte-Alvarez had both subjective and objective reasonable grounds to arrest the Defendant for impaired driving and to make a breath demand.

[17] While there exists a meaningful standard for the police to meet before making a breath demand, it is not an onerous one. I am satisfied beyond a reasonable doubt that on the evidentiary record before me the breath demand of P.C. Fonte-Alvarez was lawful. There was no violation of the Defendant's constitutional rights when he was subjected to a demand to provide suitable samples of his breath for alcohol testing.

[18] If I am wrong and the Defendant's rights were breached at the roadside, I would not exclude any evidence arising there from. Any breach, if it occurred, was minor as the officer had reasonable subjective grounds to arrest for impaired driving. Fonte-Alvarez clearly understood his duties and there was no evidence of any personal or systemic disregard for the rights of Mr. Baumlisberger. To the contrary, at all times he was treated professionally, fairly, and with dignity by P.C. Fonte-Alvarez. The impact on any Charter protected rights was minimal. The evidence sought to be excluded was reliable and there is a substantial public interest in a trial on the merits. Assuming breaches of the Defendant's rights, a balanced analysis favours admission, not exclusion, of the evidence.

2.2: Was the ability of the Defendant to operate a motor vehicle impaired by the consumption of alcohol?

2.2.1: Positions of the Parties

[19] The defence submits that the totality of the evidence from both the roadside and the station may raise suspicions but it is ambiguous and too meagre to establish proof beyond a reasonable doubt that the ability of Mr. Baumlisberger to operate a motor vehicle was impaired by the consumption of alcohol.

[20] The Crown agrees that although the evidence of impairment by alcohol is slight, it is nevertheless present, reliable, and real thereby satisfying the high onus of proof placed upon the prosecution.

2.2.2: Applicable Legal Principles

[21] Impairment of the ability to operate a motor vehicle must be proven, not just "impairment" generally: R. v. Ryan, [1998] O.J. No. 3539 (Gen. Div.); R. v. Andrews, 1996 ABCA 23, 104 C.C.C. (3d) 392 (Alta. C.A); R. v. Jobin, 165 C.C.C. (3d) 550 (Que. C.A.) at ¶ 53.

[22] Any degree of impairment ranging from slight to great, establishes the offence: R. v. Stellato, 78 C.C.C. (3d) 380 (Ont. C.A.); aff'd (1994), 90 C.C.C. (3d) 160 (S.C.C.); R. v. Andrews, 1996 ABCA 23. "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, regard for the rules of the road, and the like: R. v. Censoni, [2001] O.J. No 5189 at ¶ 47 (S.C.J.).

2.2.3: Analysis

[23] Evidence regarding the issue of impairment by alcohol to drive safely comes from three sources: the investigating officer P.C. Fonte-Alvarez; the qualified technician P.C. Shay; and the video and audio from the police station. P.C. Fonte-Alvarez observed minor driving evidence of slow driving and moving over the fog line, but he discounted the slow speed as nerves, not intoxication on the part of the driver. He also observed minor coordination concerns such as slightly slurred speech, having trouble producing his licence, and leaning while standing outside the car. Fonte-Alvarez and P.C. Shay noticed an obvious odour of alcohol on the Defendant's breath and that his eyes were red and bloodshot. P.C. Shay testified that the Defendant's speech was slightly slurred and that he was slightly unsteady on his feet. Independent of one another, each officer concluded that the ability of the Defendant to operate a motor vehicle was impaired by alcohol.

[24] The Defendant was subject to "real time" audio/video recording in the station's breath room. The acoustics in the breath room made it harder than it should have been for any independent observer to rely fully on any auditory evidence that might assist on the issue of impairment in this case. That is to say, it was difficult to judge from the breath room evidence whether or not the Defendant's speech was slurred. The totality of the breath room video per se neither confirms nor rebuts the slight impairment attested to by the officers. With that said, it does appear from the breath room video that the Defendant had no gross signs of physical or mental behaviour so as to conclude on the face of the video that he was drunk. The video recordings made of the Defendant outside the breath room were not especially helpful either because those recordings have no sound and the video records at a rate that is slower that real life. The video outside the breath room relied on by the police to demonstrate swaying is equivocal at best.

[25] There is another aspect of the breath room video that directly and reliably addresses the issue of impairment, being the Defendant's voluntary utterances to P.C. Shay. When asked by the qualified technician about the events leading up to being pulled over the Defendant stated that he had been drinking with a buddy who had asked him to drive. The Defendant said that he felt OK to drive and that he drove because his friend was "also intoxicated and I figured I was in a better state." When asked to self-evaluate the effects of alcohol on his ability to drive based on a scale of zero to ten where zero means no effect and ten means being unable to drive, the Defendant stated that he was "three out of ten." There is no basis to doubt the Defendant's statement that the consumption of alcohol had an effect on his driving and I believe him. The Defendant's statement that he was slightly impaired corroborates the totality of the credible and reliable evidence of the two police officers.

[26] On assessing the evidence as a whole, I am satisfied beyond a reasonable doubt that the ability of the Defendant to operate a motor vehicle was impaired by the consumption of alcohol. The impairment may have been slight, but it was nonetheless real and proven to the criminal standard.

3.0: CONCLUSIONS

[27] For the foregoing reasons, I find that none of the constitutional rights of the Defendant were breached and that the admissible evidence proves his guilt on each count beyond a reasonable doubt. My verdicts are therefore as follows:

(a) Count #1 – Impaired Driving, s. 253(1)(a) Criminal Code of Canada – guilty

(b) Count #2 – Driving with Excess Blood Alcohol, s. 253(1)(b) Criminal Code of Canada – guilty

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice