Ontario Court of Justice

Date: 2017-07-24

Court File No.: 17-01834 Newmarket

Between:

Her Majesty the Queen

— AND —

Michael John Antczak

Judgment

Evidence Heard: July 7, 2017

Delivered: July 24, 2017

Counsel:

• Ari Linds, counsel for the Crown
• Michael Neziol, counsel for the defendant

KENKEL J.:

Introduction

[1] The investigating officer was in a plaza headed towards an all-night Subway restaurant to meet another officer when he saw Mr. Antczak driving through the plaza at high speed. He followed the accused's van and caught up to him stopped at a nearby red light. When the light turned green the accused accelerated quickly with the officer in a marked cruiser directly behind him. The van straddled the lane line, then corrected. There was some swerving within the lane and after several lane changes the officer activated his roof lights. The accused's vehicle abruptly slowed but did not stop. The officer sounded his air horn and the accused pulled over.

[2] The officer asked the accused to lower his window so they could speak. The accused opened his window 1-2 inches but refused to lower it as directed. While they conversed in that manner the officer detected an odour of alcohol coming from the vehicle and he noticed the accused's speech was slightly slurred. He asked, then directed the accused to exit the vehicle so that he could investigate driver sobriety. The accused refused. The accused demanded a police supervisor attend. The rookie officer complied and called for a supervisor. While waiting for the supervisor the accused spoke privately with a lawyer on his cellphone. Eventually with four police cars at the scene, his vehicle boxed in front and back and after he had received legal advice, the accused finally relented and complied with the direction to step out of his car. He was arrested for impaired driving. Breath test results at the station led to a further charge of operating his vehicle while his blood alcohol level was over 80 mgs.

[3] The submissions of counsel identified the following issues for decision:

• Charter sections 8 and 9 - Did the officer have reasonable grounds to arrest the accused and make an approved instrument demand?
• Charter s.8 – Has the Crown proved that the breath samples were taken pursuant to a timely demand as required by s.254(3)?
• Charter s.24(2) – If the arrest or demand breached the accused's Charter rights, should the breath test readings be excluded from evidence?
• Has the Crown proved the impairment alleged beyond a reasonable doubt?

Reasonable Grounds for the Arrest and Demand – Charter Sections 8 and 9

[4] Mr. Antczak was stopped for speeding. The odour of alcohol, the manner of driving and the accused's refusal to lower his window as directed reasonably caused the officer to suspect the accused's ability to operate his vehicle might be impaired by alcohol. He properly advised the accused of his suspicion and the change in the investigation.

[5] Over time the officer concluded he had reasonable grounds to believe that the accused's ability to operate his vehicle was impaired by alcohol consumption. That belief was based on the following observations and circumstances:

• The speeding in the parking lot and on Weston Road
• The accused's failure to see a marked cruiser directly behind him at the intersection
• Straddling over the lane line
• Swerving within the lane
• Sudden braking
• Quick lane changes for no apparent reason
• Failure to promptly stop for flashing police lights
• Refusal to roll down his window as directed
• The odour of alcohol coming from the vehicle where the accused was the lone occupant
• Small pupils consistent with alcohol consumption
• The accused's repeated refusal to step out of his vehicle as demanded by the officer
• A slur detected in the accused's speech
• Long pauses before answering questions
• The driver was later observed to be holding his phone to his ear, mimicking a call when there was no call active in an apparent effort to delay the investigation
• The accused's demand for a supervisor to attend for no apparent reason other than to interrupt and delay the investigation
• The accused's statement that he is a real estate agent and that he was coming from a meeting with a client seemed unlikely at almost 3 a.m.

[6] The officer's in-car video showed Mr. Antczak speeding in the parking lot. It showed him swerve toward and over the centre line as he accelerated at high speed away from the intersection. There are other swerves or corrections during the course of driving, but I agree with the defence that they are minor. The other aspects of driving referred to by the officer including the failure to respond to the police flashing lights are all shown in the video. The audio portion of the in-car video showed aspects of speech that could be a "slight slur" as described by the officer. I agree with the defence that another observer might reasonably draw another conclusion but the officer's observation was reasonable and relevant. The accused's cell phone video that was put to the officer in cross-examination more plainly shows some slurring in the accused's speech. While most of his responses are short, when the accused speaks in longer phrases there is some slurring. The difference in the audio records is reasonably explained by the fact that the cellphone was inside the car with the accused while the officer was outside listening through a narrow window opening.

[7] The arresting officer was sober and acting in a professional capacity at the time. He took detailed notes of his investigation to assist his recollection. His evidence is supported by an in-car video that recorded much of the transaction. While certain aspects of his investigation showed his inexperience, I find that the Crown has proved he was a credible and reliable witness.

[8] The officer's evidence as a whole showed that his investigation progressed in a logical manner. He was aware of the applicable legal tests at each stage. At the outset he was focused on the accused's speeding. As he spoke with Mr. Antczak he made further observations that led him to reasonably suspect impairment. He cautioned the accused about the change in investigation. Further observations and reflection on all of the circumstances from the time of first observation led the officer to conclude that he had reasonable grounds to believe Mr. Antczak's ability to operate his vehicle was impaired by alcohol consumption.

[9] The onus is on the Crown to prove that the officer had reasonable grounds to make the s.254(3) Approved Instrument (AI) demand – R v Shepherd 2009 SCC 35 at para 16. The officer's subjective belief must be objectively reasonable in the circumstances. The test is not an onerous one – R v Wang 2010 ONCA. The assessment is made in the context of the criteria for the offence. Reasonable belief in slight impairment is sufficient, it is not necessary to show that the driver was in an advanced state of impairment showing signs of intoxication for the officer's belief to be reasonable – R v Leppanen 2015 ONSC 2973 at para 38.

[10] "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 or regard for the rules of the road. The test is whether, objectively, there were reasonable and probable grounds to believe the suspect's ability to drive was even slightly impaired by the consumption of alcohol" – R v Leppanen at para 38.

[11] Considering the arresting officer's evidence as a whole, I find that the Crown has proved that the officer's belief was reasonable in the circumstances. The officer had reasonable grounds for the arrest and the demand.

Charter s.8 – Demand As Soon As Practicable?

[12] The arresting officer admitted that he forgot to read the Approved Instrument (AI) demand after arrest. Once the accused was secured in the police car the officer immediately provided right to counsel advice and cautions, then he contacted dispatch to determine the location of the closest breath technician. He forgot to read the AI demand, but he did explain to the accused that he was waiting on information about the closest breath test technician and that they would be going to that station. The arresting officer provided his grounds to the breath technician at the station and the breath technician made an independent timely demand.

[13] The facts on this point are similar to those in R v Guenter 2016 ONCA 572 leave refused [2016] SCCA No 433, where the officer forgot to read the demand at the scene but a demand was made by the breath technician. In that case the Ontario Court of Appeal held that the breath technician's demand was made "as soon as practicable" under s.254(3). The Crown is only required to prove one valid demand. As the court noted, even if there were a s.8 breach, section 24(2) would not require the exclusion of the breath test evidence where the arresting officer had the required grounds for the demand. Mr. Antczak exercised his right to speak to counsel upon detention prior to the officer forming grounds. He was aware from the officer's statements of the reason for his arrest and that he was being taken to see a breath test technician at the station. The fact that there was a delay until the demand was read by the breath technician was a technical breach without any impact on the interests protected by section 8 of the Charter.

Impaired Driving

[14] The Crown's case on impairment rests on the following facts:

• The accused was travelling at high speed through a parking lot
• He was unaware of the marked police car that pulled up directly behind him at a lit intersection
• He accelerated away from the intersection at high speed
• As he accelerated away from the intersection the accused drove onto and over the dividing line of the adjacent lane then corrected
• The accused was speeding on Weston Road up to 110km/hour still unaware of the police car directly behind
• There was some swerving and corrections within the lane
• The accused rapidly changed lanes then changes lanes again for no apparent reason
• The abrupt change of speed in apparent response to police lights
• The failure to stop for the flashing police lights which required the officer to resort to the air horn
• The accused's speech was slurred with long pauses before answering questions
• The accused's odd demeanor at the roadside where he refused to comply with police directions repeated in simple terms, he demanded a supervisor and was argumentative despite the officer's polite and patient demeanor
• The accused's post-driving conduct which the Crown submits shows an intent by the accused to interrupt and delay the investigation of his sobriety at the roadside
• The odour of alcohol and physical indicia reasonably link the evidence of impairment to the consumption of alcohol

[15] The defence notes that the straddling over the lane line occurs during the rapid acceleration only. The swerving during the driving is very minor and might reasonably be attributable to the high speed. The change in speed was abrupt but that's in apparent response to the police lights. The accused didn't stop in response to the officer's lights but he did slow, and he eventually stopped after the officer signalled with the air horn. The defence submits that there was little or no slurring in the accused's speech at the roadside, and the breath technician noted the accused's speech as "fair" which is not "slurred" but also admittedly not "good" which would be another choice on that form.

[16] The Crown must prove the alleged impairment in the ability to drive beyond a reasonable doubt. Evidence which proves even slight impairment to that standard is sufficient to prove the offence – R v Stellato, [1994] SCJ No 51 affirming, [1993] OJ No 18 (CA).

[17] I agree with the defence that there is no evidence of advanced impairment such as problems with walking, balance or motor movement. However, the accused was not driving in a safe manner. He was unaware of his surroundings and unaware of other vehicles on the road, especially the police car directly behind him. This lack of awareness shows impairment in a mental faculty required for safe operation.

[18] His rapid acceleration and travel at high speed showed a disregard for the rules of the road and traffic safety. He swerved over the dividing line once but was able to correct. While he did not keep a true course within his lane I agree with the defence that his subsequent swerves were very minor. There was no apparent reason for his rapid lane changes. I agree his change in speed was likely due to the flashing police lights behind him, but the abrupt manner in which he braked in the roadway was unsafe.

[19] The accused was able to brake for the police lights but he did not stop. It wasn't until the officer activated his air horn that the accused pulled over. That delayed response is a circumstance indicating impairment in response time and judgment.

[20] While many of the accused's responses were short, when he spoke in longer phrases there are portions where his speech is slurred, although I agree with the defence the slurring is not pronounced and his speech is comprehensible. I agree with the defence that the slurring was not apparent later at the station. The notation of "fair" as opposed to "good" was not explained and I place no negative weight on that observation. The difference between the accused's speech at the roadside and at the station I find is reasonably explained by the passage of time and the fact that he had extended conversation at the roadside but declined to answer questions in the breath test room and spoke few words to the technician.

[21] I don't place as much weight on this circumstance, but I agree with the Crown that the accused's odd demeanor and his arguing with the officer for no apparent reason at the roadside showed errors in thinking and judgment consistent with the effects of alcohol consumption. The arresting officer was consistently polite, professional and more than accommodating to Mr. Antczak, so there was no reason for the accused's behaviour.

[22] This is not a case where the accused was falling-down drunk or where his driving was impaired to a marked degree. However, considering the evidence as a whole I find the Crown has proved beyond a reasonable doubt that the accused's ability to operate his vehicle was impaired by his consumption of alcohol as alleged. I can find no evidence that reasonably could leave a doubt in that regard.

Conclusion

[23] The Charter applications are dismissed. The Crown has proved both offences beyond a reasonable doubt. There will be findings of guilt on each count.

Released: July 24, 2017

Hon. Justice Joseph F. Kenkel