Court Information
Ontario Court of Justice
Date: 2017-06-19
Court File No.: Toronto 4817 998 16 75000337-00
Parties
Between:
Her Majesty the Queen
— And —
Stephen Daigle
Judicial Officer and Counsel
Before: Justice Richard Blouin
Heard on: May 1, 2017
Reasons for Judgment released on: June 19, 2017
Counsel:
- Mr. Graedon Muir-Pfeiffer — counsel for the Crown
- Ms. Heather Pringle — counsel for the defendant Stephen Daigle
Judgment
BLOUIN, J.:
Facts
[1] Constable Michael Vandervoort was dispatched at 1:21 a.m. on January 21, 2016 to the scene of a three-vehicle, personal injury, motor vehicle accident. He arrived at Bloor Street and Mt. Pleasant Avenue at 1:43 a.m. In the center console of a black Acura he located the driver's licence of Mr. Daigle, and spoke to him at the side of the road. Mr. Daigle told the officer that he was the driver. He also told him that he was coming from Bathurst and Lawrence, and was driving his girlfriend home. Vandervoort did not observe any indicia of impairment such as unsteadiness, slurred speech, bloodshot or glassy eyes, or a flushed face. At that point he did not smell alcohol. Mr. Daigle was coherent and in "reasonable shape", and there was no indication that he was at fault regarding the accident.
[2] When Vandervoort got a bit closer to the defendant he could "smell an odour of an alcoholic beverage emanating from him that I did not smell at first". The following non-verbatim exchange took place:
Q. How much did you have to drink?
A. One beer two hours ago.
Q. Were you the DD?
A. I am in better shape than my girlfriend. I am a G-2 driver and "fucked" because I can't have alcohol in my system.
[3] As it turned out, the officer's lapel microphone recorded some of the investigative interchange, but not all. Only the last answer regarding his problems as a G-2 driver was audible. The video and audio recording was entered as Exhibit 1.
[4] At that point Vandervoort suspected that the defendant had "consumed alcoholic beverages," and a roadside demand was made at 2:03 a.m.
[5] After reading the ASD demand from his notebook, Vandervoort asked the defendant if he understood. Daigle indicated he did but then asked if it was mandatory. Vandervoort replied that he could refuse, but the penalty was the same as had he failed. Vandervoort, who I might add was patient and professional, tried in a few different ways to explain the process that would take place if the defendant took the test, and that which would take place if he did not. Although it was made clear to the defendant he would be charged if he refused, the defendant felt that Vandervoort made the refuse option more palatable in that he would be released at the scene and that, although he would be charged, it would be a charge "minus the evidence". When Vandervoort read the defendant rights to counsel, after telling him "last chance", the defendant responded "that's a charge"?
Defence Submissions
[6] Ms. Pringle submits that there are four deficiencies in the Crown's case:
The officer, subjectively, did not have reasonable grounds to suspect that the defendant had alcohol in his body as required by s. 254(2). His suspicion that he had "consumed alcoholic beverages" was not the standard;
Assuming I find otherwise regarding the above submission, the suspicion was not objectively reasonable;
The officer had no evidence, and therefore no suspicion, that the defendant was driving within the preceding three hours as required by s. 254(2); and
The officer did not convey to the defendant that the demand to provide a sample was mandatory.
Findings
Grounds to Suspect
[7] I had some difficulty with Vandervoort's evidence regarding grounds to suspect. He agreed he misspoke when he testified in-chief that his first conversation with the defendant was in the presence of his girlfriend, when the video clearly showed otherwise. He also agreed, as again reflected in the video, that the defendant was driving to, not coming from, Bathurst and Lawrence. Much of the conversation regarding alcohol was not captured by the video (audio portion interrupted).
[8] Whatever concerns I had regarding the reliability of the officer's notes and memory on the issue of what was said and observed in forming grounds to suspect, were effectively expunged by the recording of the defendant speaking about his licence jeopardy. That alone provided Vandervoort with the necessary suspicion, and I find it was objectively reasonable for him to form that suspicion.
[9] While Vandervoort admitted in cross-examination that he had no idea as to the exact time of the driving, he was asked in-chief when he thought the defendant had been driving. He responded, "up to the point of the accident". All that is necessary is a reasonable suspicion that the defendant was driving within the preceding three hours. Similarly, the reasonable suspicion standard is met regarding alcohol in the body when the officer believed that the defendant had consumed alcoholic beverages.
Lawful Demand
[10] Although with respect to a slightly different consideration R. v. Torsney, 2007 ONCA 67, spoke of the mandatory nature of a demand (at paragraph 6):
The demand need not be in any particular form, provided that it is made clear to the driver that he or she is required (italics are mine) to give a sample of his or her breath forthwith.
[11] A recent decision of Bovard J. in R. v. Hawkins, 2013 O.J. No. 1103, chronicles the law in this area at paragraphs 67 to 76. There must be a demand, not an invitation.
[12] As indicated in R. v. Palanacki, [2001] O.J. 6254, Justice Blacklock says the following:
I accept that there is no standard formula for a valid breath demand and the authorities support the notion, however, that language must be used which conveys to the accused the notion that the samples of breath are being demanded, in the sense that the accused has to provide them, or perhaps to put the matter another way, what is being asked is more than a request or an invitation. See in that regard, R. v. Boucher (1986), 47 M.V.R. 173, and R. v. Nicholson, (1970), 8 C.C.C. (2d) 170. (Emphasis added)
While I do not fault Constable Vandervoort for his thoughtful attempts to fulfill his obligations, I equally agree with Ms. Pringle that the tenor of his interchange with the defendant was one of options and choices. I am satisfied the officer intended to be fair in explaining certain eventualities, but at the very end (when the defendant is surprised that he has acquired a charge) he should have known that Daigle misunderstood that he was required to provide the sample, and further, that the misunderstanding may well have resulted from the presentation of options.
Conclusion
[13] As a result, although not by much, I have a reasonable doubt that the defendant refused to provide a suitable sample when lawfully demanded to do so. He must be found not guilty.
Released: June 19, 2017
Signed: "Justice Blouin"