Court File and Parties

Ontario Court of Justice

Date: 2017-09-06

Court File No.: Newmarket 16-01781

Between:

Her Majesty the Queen

— and —

Wayne John McLeod

Charter Ruling

Evidence heard: September 5th, 6th, 2017

Submissions and Ruling: September 6th, 2017

Counsel:

• Mr. Robert De Chellis — counsel for the Crown
• Ms. Jessica Sickinger — counsel for the defendant

KENKEL J.:

Introduction

[1] Constable Dopko ran a license check on Mr. McLeod's truck and learned that his permit validation had expired. The officer parked a distance away in the parking lot and waited while Mr. McLeod went to the beer store. Mr. McLeod then drove towards the officer while drinking from a can of beer. As he came upon the police car Mr. McLeod stopped, stared at the officer then did a U turn and went back towards the beer store. He parked his truck right by the beer store he'd come from, but left his door open with his keys inside the car. He walked away from his truck without looking at the officer and went inside a Mac's Milk store. The officer removed the keys for safety reasons. He noticed an open king sized can of Busch beer in the console. PC Dopko later administered an approved screening device test to Mr. McLeod and the fail result led to further testing at the station. The results of the approved instrument tests led to the charge before the court.

[2] The defence Notice of Application seeks exclusion of the Approved Instrument (AI) test readings pursuant to s.24(2) of the Charter to remedy multiple alleged breaches of the accused's Charter rights. At trial, defence submissions focused on one alleged breach – whether the officer had reasonable grounds for the AI demand given the possibility of mouth alcohol?

[3] I agree with both parties that the evidence does not show any other Charter breach. The officer's observation of an open beer can in the accused's truck console through an open window and door is not a search and does not violate s.8. The seizure of the keys from the ignition of the open vehicle was necessary for public safety. That was demonstrated in this case where an intoxicated person left the same beer store and went to a nearby vehicle while this officer was dealing with the accused. That other person was subsequently arrested by another officer.

[4] PC Dopko did not deny the accused's request to speak to his lawyer as alleged in the Charter notice, but on the contrary called that lawyer and waited 47 minutes for a response. After the lawyer did not call back the officer offered the accused the option to call duty counsel. The accused chose to speak to duty counsel and the AI tests were conducted after that call was completed. When counsel of choice called back almost three hours later the officer brought Mr. McLeod to the counsel room so he could speak with him. The officer took reasonable steps to implement the accused's s.10(b) rights and when the accused's lawyer was not reasonably available the accused was diligent and made the logical choice to speak to duty counsel.

[5] Both parties agree that if a s.8 breach is found, in the particular circumstances of this case the breath test readings should be excluded under s.24(2).

Section 8 – Reasonable Grounds – Mouth Alcohol

[6] Constable Dopko's observation of the accused drinking from a can while driving where beer was found in the console, the accused's admission of prior drinking and the odour of beer on the accused's breath together provided the officer with multiple sufficient bases for his reasonable suspicion under s.254(2).

[7] The defence submits that the officer's reliance upon the Approved Screening Device (ASD) test "fail" result is "clearly flawed" as the officer should have known that the test result was not reliable. This submission is not based on the drinking while driving that the officer observed. That falls close to, but outside the required 15 minute waiting period. The evidence shows that the officer was aware of that drinking, aware of the necessity to wait 15 minutes afterwards to ensure test reliability and that the officer did conduct the test beyond the 15 minutes. The observed drinking and driving was at 1754h, the officer read the ASD demand at 1808 after having considered the issue (14 minutes after) and the ASD device registered the fail result at 1812h, 18 minutes after the accused's last observed drink.

[8] The defence submissions relate to a period of time of approximately two minutes where the officer intervened with a different person about to drive away from the beer store while intoxicated. The accused testified on this voir dire that during that time he did not get back into his truck, but he leaned into it as shown on the video. He did that not just to get insurance documents as directed, but he tried to drink the beer in the can. He believed he hid that drinking from the officer. He wasn't sure how much he drank but estimated it was "most of it" and later agreed with a Crown suggestion that it was two thirds of the can. While the accused never told the officer that he'd hidden further drinking from him, the defence submits that the evidence shows the officer suspected further drinking but did nothing about it.

[9] In support of that submission the defence notes that after dealing with the other person the officer asked the accused, "What happened to the rest of the beer?" The officer asked the accused if he'd "had anything" in the prior 15 minutes but didn't get a response. His note that he received a reply is in error. The officer unreasonably relied upon the fact that he'd been with the accused, forgetting that the accused had been left unattended for two minutes. The officer's evidence that it didn't occur to him that someone under investigation would start drinking beer a short distance away from him was not credible and the officer was an unreliable witness overall. The defence submits that the officer discovered missing alcohol from the can and at that point it was unreasonable for him to assume there had been no further drinking. The officer's subsequent conversation about mouth alcohol with the breath technician betrayed his concern in that regard.

[10] When he returned to the accused's car after dealing with the other party, the officer spoke to the accused and asked "What happened to the rest of the beer". In cross-examination the officer was asked why he posed that question. He did not have a note on that point nor did he have a specific recollection. He suggested, "I think when I was over here (with the other party) I saw it getting poured out or I saw the can and it looked like it was poured out." He then agreed with the defence suggestion that it's possible he observed there was less alcohol and that could explain why the question was asked. The officer was not asked nor did he explain how one could determine from looking at a beer can in a console the amount of beer it contained at different times. Even though he offered one possibility and agreed with a second defence suggestion, it's plain he has no real recollection on this point.

[11] What's troubling about the possibility suggested by the defence is that there's no apparent mechanism for the officer to have noticed a change in the beer can volume upon his return to the accused's car. There's no evidence the officer handled or weighed the can before or after the two minutes he spent with the other party. There's no apparent mechanism that would allow him to have made the comparison suggested. In the absence of an actual recollection on this point I can't attach much weight to the possibility set out in cross-examination despite the agreement of the officer that it could reasonably explain the question he asked.

[12] Mr. McLeod testified that he drank as much beer as he could during the two minutes that the officer dealt with the other person nearby. In the context of all of the evidence I find I have significant concerns about the reliability and credibility of his testimony.

[13] Mr. McLeod was going through a rough time in his personal life. His fiancée was in the hospital in difficult circumstances. He was in the second year of a very difficult divorce. The stress of the divorce proceedings led him to be diagnosed with "level 5 post traumatic stress". He was on medication for stress and admits he was, "self medicating" and "just trying to get my head to shut off". On this day he'd been working hard trying to get a property ready for sale, but he'd also been drinking to "mellow out". He drove to the beer store for more and started drinking immediately after leaving the store while driving. Considering Mr. McLeod's mental state, his medication and his drinking it's not surprising that he was unable to remember many of the surrounding details of the incident over 16 months ago. Unlike the officers, he did not have detailed notes to assist his recollection although he's had the benefit of seeing the police cruiser video which assisted all of the witnesses with their recollection.

[14] While Mr. McLeod's evidence was generally consistent with the credible evidence of the arresting officer, I do not find his testimony to be reliable independent of confirming evidence and I am unable to place any weight on his account as to drinking during the two minutes the officer dealt with another party. I also don't find the accused's evidence on that point to be credible – that he was trying to avoid an open liquor provincial ticket. Mr. McLeod knew that he'd been drinking and that the officer had seen him drinking while driving. He knew that further drinking would make his situation much worse with respect to a criminal offence. If he was trying to hide the evidence of the beer in the can he would simply have poured the beer out. Perhaps he did and that's what the officer saw as he mentioned as one possibility. It makes no sense though to drink the beer which creates a much greater jeopardy than he was trying to avoid. I must also take into account that the accused on his own evidence was willing to try to obstruct the officer's investigation to avoid a ticket and that also goes to his credibility as a witness.

[15] Even if the accused did drink beer during that brief interval, that would only detract from the officer's reasonable grounds where the officer knew or suspected further drinking. The whole of the evidence makes it plain that the officer saw the accused drinking while driving and did not believe the accused consumed any alcohol after that. Even if the accused had managed to hide a few further drinks he didn't tell the officer and the officer's belief that nobody would drink further alcohol while being investigated by the police in these circumstances is logical and reasonable. The officer's conversation with the breath technician at the station shows he was interested in the mouth alcohol issue, but he specifically stated that he wasn't asking in relation to this case. He explained to the breath technician that he was thinking about it because the times in this case were "tight" but that he'd waited the required time before this ASD test.

[16] Constable Dopko's ASD demand was based on reasonable suspicion. He turned his mind to the accuracy of the test results and conducted the test more than 15 minutes after the accused's last drink. While he wasn't asked what the fail result meant to him, his action in using that test result as grounds for arrest of the accused for "Over 80" showed he understood the test failure provided grounds to believe the accused had a blood alcohol level over the legal limit. The officer had no reason to doubt the accuracy of the test result. The Crown has proved that the officer's subjective belief that he had reasonable grounds for the approved instrument demand was objectively reasonable.

Conclusion

[17] I find that the Crown has proved that the approved instrument tests were taken pursuant to a demand based on reasonable grounds. There is no s.8 breach. The other grounds were abandoned and there is no other evidence of a Charter breach.

[18] The Charter application is dismissed.

Released: September 6, 2017

Justice Joseph F. Kenkel