Court Information

Court: Ontario Court of Justice, Old City Hall – Toronto

Date: October 24, 2017

Between: Her Majesty the Queen

And: Giormelo Casapao

Before: Melvyn Green, J.

Counsel:

• C. Agatiello, for the Crown
• P.S. Dotsikas, for the Defendant

Heard: August 11 and 24, 2017

Reasons for Judgement

A. Introduction

[1] September 6th, 2016. About 7:50pm. A clear, cool, dry evening in downtown Toronto.

[2] Giormelo Casapao's driving caught the attention of the police. He was soon charged with impaired operation of a motor vehicle and, soon after, with failing to comply with a police demand to supply breath samples for a quantitative analysis of his blood-alcohol concentration (BAC).

[3] The two arresting officers testified, as did a qualified breath technician. Giormelo Casapao, the defendant, did not. Nor did he call any other evidence. As always in criminal trials, the burden rests on the Crown to establish to the requisite standard the essential elements of each offence charged. Any reasonable doubt respecting either offence must result in the defendant's acquittal of that charge. In brief, the defence position is, first, that the officer's approved instrument demand was legally defective and, accordingly, the defendant was under no obligation to comply with it, and, second and in any event, the Crown has failed to meet its onus of proof as to the defendant's impairment.

B. The Evidence

[4] The defendant was driving west on Richmond Street in downtown Toronto. His Mercedes' tires squealed and he conspicuously fishtailed or swerved as he made a sharp right turn north onto Bay Street. Two police officers, PCs Robert Stibbe and Daniel Cristifaro, had front row seats to the defendant's driving behaviour as they just happened to be waiting for the northbound light on Bay just south of Richmond to change from red to green. The defendant's maneuver drew their immediate attention.

[5] The police closely followed the Mercedes to the next intersection, at Queen Street, where it made a proper stop at another red light. When the light changed, the police watched the Mercedes accelerate north of Queen and then trace a curve in Bay Street that skirts around the western footprint of Old City Hall Courthouse – coincidentally, the location, nearly a year later, of the defendant's trial. Stibbe activated his emergency equipment on observing, in his evidence, a similar, if much more modest, maneuver – a tight jog and very slight rear-end drift – just north of Queen. Stibbe was very familiar with the world of auto mechanics. In his view, the swerving he observed on both occasions was a function of the driver's deliberate manipulation of the vehicle, a type of intentional stunt or show driving. Stibbe activated his car's emergency equipment, signaling the Mercedes to pull over. He intended to pursue a Highway Traffic Act investigation, possibly leading to a careless driving charge.

[6] The defendant promptly responded to the police lights and siren, safely curbing his car just south of Albert Street, the first cross-street north of Queen. The entire incident, from the defendant's right turn onto Bay to his stop north of Queen, lasted under a minute. It was recorded by the video camera mounted in the police car.

[7] Stibbe approached the driver's window at about 7:52pm. Cristifaro walked to the other side of the Mercedes. The defendant was behind the wheel. A second man occupied the front passenger seat. The windows and sunroof were open. At Stibbe's request, the defendant promptly handed him his car keys and driving-related documentation. There was no confusion or fumbling: "he didn't do anything of that sort". However, says Stibbe, the driver had a "dozed" look, glossy eyes (not "red", he made clear) and appeared slow to react. In cross-examination, the officer conceded the defendant was responsive and answered the questions asked of him.

[8] Stibbe asked the defendant questions about his manner of driving. "You got me", said the defendant. "What do you mean?", asked Stibbe. "You saw", the defendant answered. Stibbe assumed the defendant was referring to his errant driving behaviour. In cross-examination, Stibbe conceded that this exchange demonstrated that the driver knew both why he was stopped and "what's going on".

[9] Stibbe, from a distance of about two feet, could smell a "faint" odour of alcohol emanating from the defendant's breath or mouth. The odour grew stronger as Stibbe leaned into the window opening. The defendant denied consuming any alcohol that day.

[10] Stibbe asked the defendant to get out of his car. The defendant, he testified, "was not getting out of the car right away"; he was "just looking straight, not moving or doing anything". Stibbe proceeded to unlatch the locked driver's door by reaching into the car through the open window and, in his words, "grabbed" or "pulled" the defendant out of the vehicle. While Stibbe undoubtedly unlatched the door from the inside, the video evidence of Stibbe's exchange with the defendant at the passenger door is otherwise inconsistent with his testimonial recall. As clearly recorded, and as I accept, the defendant quickly and smoothly exited the Mercedes on his own steam. He was not physically extracted from the vehicle.

[11] At about 7:53pm, Stibbe formed the opinion that the defendant was driving while impaired. He immediately cuffed and arrested the defendant for that offence. Although expressed somewhat differently in direct, cross- and re-examination, Stibbe rested his grounds for arrest on the charge of impaired operation of a motor vehicle on the defendant's delinquent driving, the odour of an alcoholic beverage on his breath, and his glossy eyes and dazed or dozed, meaning "slow", reactions.

[12] He placed the defendant in the rear of his scout and there read him his rights to counsel and the approved instrument demand (AID). The defendant several times made clear he would not provide a sample of his breath. Stibbe agreed that the defendant's answers to the recital of his rights and the breath demand were responsive and coherent. As Stibbe understood the law, his making of an approved instrument rather than roadside screening demand meant that he could not charge the defendant with failing to comply with the AID as that prerogative rested with a qualified breath technician when and if the technician was met with a similar refusal at the station.

[13] In re-examination, as noted, Stibbe repeated his grounds for arresting the defendant for impaired operation: "the driving behaviour, the odour of the alcohol, the dazed look, the glossy eyes". He then volunteered that rather than order a roadside screening device or make the related demand, he "went straight for the impaired driving to take him to the station, to get him to provide samples of his breath to know exactly how much alcohol was in his system". "[T]hat's why", he explained, "I gave him the [approved instrument] demand and arrested him for the impaired".

[14] The police, with the defendant in tow, left the area at 8:02pm, arriving at the Traffic Services Station some fourteen minutes later. Both officers testified to a strong odour of alcohol during the defendant's transport in the close confines of the police car. The video evidence and the testimony of PC Cristifaro confirm that the defendant was lucid and responsive throughout the booking procedure, that he appeared fully dexterous and, in particular, that he had no difficulty standing or removing his belt and jewelry. Other than his driving behaviour and the odour of alcohol, Cristifaro had no notes or recall of any indicia of impairment.

[15] The defendant spoke with duty counsel following his booking. At 8:50pm he was escorted into a breath room where a qualified breath technician, PC Preuthun, was waiting. While Preuthun recalled Stibbe assuring him he had the requisite grounds for the defendant's breath-testing, he had no note as to what if any grounds Stibbe provided. The defendant several times unambiguously refused Preuthun's demand to provide a sample of his breath. He was removed from the breath room at 9pm and then charged, as noted, with operating a motor vehicle while his ability to do so was impaired by alcohol and, second, failing to comply with a lawful demand to provide suitable samples of his breath. Stibbe released the defendant from the station at 10:45pm.

[16] An audio track accompanies the video recordings of the defendant at the station, both during his booking and in the breath room. As a result of Stibbe's failure to activate the equipment, there are no audio recordings of the police interaction with the defendant during either the roadside investigation or the defendant's transport to the station.

[17] Stibbe worked as a breath technician for a number of years. In his opinion, the defendant's impairment was at the "low end" of the range – 2 to 3 on a scale of 10. Both arresting officers agreed the defendant was responsive and coherent and displayed no fumbling or hand-eye co-ordination difficulties. Further, the defendant's demeanour and conduct never altered during the approximately three hours he spent in Stibbe's company: he appeared and acted the same at the time of his arrest as he did on his release and as recorded on the breath room video.

[18] Preuthun, the qualified breath technician, detected only a weak odour of alcohol coming from the defendant. Contrary to Stibbe's recall, Preuthun described the defendant's eyes as appearing bloodshot. Otherwise, the defendant spoke well and was polite. There was no concern respecting his gait or his fine motor control. The breath technician assessed the "over-all" effects of any alcohol on the defendant as "slight".

C. Analysis

(a) Introduction

[19] The issues, matters of both fact and law, requiring resolution in this case are interwoven. First, did the arresting officer, Stibbe, have lawful grounds to make the approved instrument demand (AID)? If so, the defence concedes the charge of "refuse" is adequately made out. If not, Crown counsel concedes the "refuse" charge must be dismissed as there is no obligation to comply with an unlawful breath demand. And second, irrespective of the verdict respecting the charge of "refuse", has the Crown proven to the requisite standard that the defendant's ability to drive was impaired by alcohol?

[20] The points of legal contention, and the factual matrix in which they here fit, afford, yet again, an opportunity to revisit the varying standards of persuasion applicable to the investigation and prosecution of impaired driving offences. As criminal law practitioners well know, a police officer may demand that the driver of a motor vehicle submit to a roadside screening device where the officer has "reasonable grounds to suspect" that the person has alcohol in his or her body and has operated a motor vehicle within the previous three hours: Criminal Code, s. 254(2). If, however, the officer has "reasonable grounds to believe" that the driver of a motor vehicle is committing or has within the previous three hours committed the offence of driving with an excessive BAC or, as in the instant case, while his or her ability to operate the vehicle is impaired by alcohol, the officer may then demand that the driver provide such samples of his or her breath to a qualified breath technician as may be required to determine that person's BAC: Code, s. 254(3). Finally, and as distinct from statutory authorizations for graduated investigatory intrusions, any conviction for impaired driving, as earlier noted, depends on the Crown satisfying a court to a standard of proof beyond reasonable doubt of all the essential elements of the offence.

[21] As played out in the scenario at bar, the odour of alcohol emanating from the breath of the undisputed driver of the motor vehicle clearly afforded a lawful basis for a roadside screening demand. However, the arresting officer, PC Stibbe, elected not to invoke the reasonable suspicion-based roadside screening procedure. Instead, resting on his "reasonable grounds to believe" that his suspect was driving while impaired, he demanded, pursuant to s. 254(3), that he provide a sample of his breath to a qualified technician for BAC analysis. If there is a lawful foundation for this latter demand, then, as rightly conceded by defence counsel, there is no cognizable basis for the defendant's failure to comply with it. If, however, the BAC demand was improvidently made, the defendant's refusal, says defence counsel, must be vindicated and, perforce, the impaired charge must also fail: if there are inadequate reasonable grounds for the charge of impaired driving there cannot, on the presenting fact-pattern, be sufficient grounds to convict of the same offence. Finally, even if the AID was legally well-founded, the fate of the impaired driving charge must be independently assessed as a reasonable basis for a lawful arrest does not automatically translate into proof beyond reasonable doubt of the same offence.

(b) Impaired Operation of a Motor Vehicle

[22] Again, the defendant faces charges of "impaired operation of a motor vehicle" (colloquially, impaired driving) and of refusing a breath sample demand when arrested for this offence. The meaning of the offence of "impaired driving" is long settled. It also bears directly on the determination of both charges.

[23] As set out in s. 253(1)(a) of the Code, any person "who operates a motor vehicle … while the person's ability to operate the vehicle … is impaired by alcohol" commits an offence. The degree of impairment is immaterial. As held in R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont. C.A.); affd., [1994] 2 S.C.R. 478, if proven to the requisite standard any degree of alcohol-induced impairment, "from slight to great", is sufficient to make out the offence. Here, the evidence of an odour of alcohol on the defendant's breath is unchallenged. The question, however, is not whether the defendant drank and drove but whether that drinking impaired his ability to drive. That issue, in the context of the Crown's ultimate burden, is expressly addressed in R. v. Andrews (1996), 1996 ABCA 23, 104 C.C.C. (3d) 392, at paras. 21, 22 and 33; leave to appeal refd. 106 C.C.C. (3d) vi (S.C.C), where the Alberta Court of Appeal adopts and explains the reasoning in Stellato:

… [I]t is so important not to deal with the issue of impairment separate from impairment of one's ability to drive. Stellato must not be understood to mean that a person who has anything to drink and then drives a motor vehicle commits the offence under s. 253(a) [now s. 253(1)(a)]. Nor does it mean any lack of sobriety is sufficient. …

The ratio of the judgment in Stellato is that it is not necessary for the Crown to establish a marked degree of impairment of the accused's ability to drive; rather, any degree of impairment of that ability, if proved beyond a reasonable doubt, will sustain a conviction.

… It is not deviation from normal conduct, slight or otherwise, that is in issue. What is in issue is the ability to drive. Where …the totality of that evidence indicates only a slight deviation from normal conduct, it would be dangerous to find proof beyond a reasonable doubt of impairment of the ability to drive, slight or otherwise.

[24] The standard of confidence necessary to lawfully arrest for the offence of impaired driving is, as noted, not that consonant with the ultimate Crown burden but, "reasonable grounds to believe" in the commission of the offence. It is the application of this test to the circumstances of the defendant's alleged offence to which I now turn.

(c) The Refusal Charge

(i) Introduction

[25] No legal objection could realistically be advanced had PC Stibbe made a s. 254(2) approved screening device demand of the defendant on the basis of the statutory norm of "reasonable grounds to suspect" the existence of the predicate combination of alcohol consumption and driving. Nor is it likely that the arrest and approved instrument demand of the defendant could be effectively challenged if s. 254(3) authorized the latter demand on the basis of the same test, that is: "reasonable grounds to suspect" that the defendant had committed the offence of impaired driving. That, however, is not the prescribed standard for the latter demand. Applying the appropriate test, the crucial question, in my view, is not whether Stibbe, the arresting officer, subjectively believed he had "reasonable grounds to believe" the defendant had committed the offence of impaired driving but, rather, whether his belief is objectively sustainable.

(ii) The Legal Basis for an Approved Instrument Demand

[26] Again: a lawful AID depends on "reasonable grounds to believe that a person" is committing or has within the prior three hours committed the offence of impaired driving. The standard of "reasonable grounds" is best explained in terms of its similarity to and contrast with that of "reasonable suspicion". The fullest elaboration of these affinities and differences appears in the Supreme Court's "sniffer dog" trilogy: R. v Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220; R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250. As said by the court in Chehil, supra, at para. 27:

[W]hile reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime. As a result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the more demanding reasonable and probable grounds standard.

The distinction between "reasonable suspicion" and "reasonable grounds to believe" is succinctly summarized in MacKenzie, supra, at para. 38: "The former concept [that of reasonable suspicion] is a matter of possibilities, while the latter is one of probabilities".

[27] Although directed to the standard of "reasonable suspicion", the following dicta, at paras. 29, 33, 44-45 of Chehil, apply with equal force to the more demanding standard of "reasonable grounds to believe":

Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience. …

Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors. The totality of the circumstances, including favourable and unfavourable factors, must be weighed in the course of arriving at any conclusion regarding reasonable suspicion.

The requirement for objective and ascertainable facts as the basis for reasonable suspicion permits an independent after-the-fact review by the court and protects against arbitrary state action. …

Rigorous judicial scrutiny is an independent review that ensures that the suspicion relied on by the police is supported by factors that are objectively ascertainable, meaning that the suspicion is based on "factual elements which can be adduced in evidence and permit an independent judicial assessment" (citation omitted).

In each of these four passages, the language of "reasonable and probable grounds" can be safely substituted for "reasonable suspicion". The point, as made in MacKenzie, at para. 64, is that each of these formulations – reasonable suspicion and reasonable and probable grounds – reflects "an objective standard that must stand up to independent scrutiny" to assure, by way of post facto judicial review, that, as in the instant case, the statutory (and, although not here material, constitutional) requirements for a lawful breath demand are met.

(iii) Applying the Law

[28] Although their articulation by the officer, as fairly conceded by Crown counsel, was "convoluted", the "reasonable grounds", as best I can discern, on which Stibbe relies to arrest the defendant for impaired driving and make the AID are the following:

• The odour of alcohol;
• The defendant's driving behaviour;
• The defendant's "glossy" (but not "red") eyes;
• The defendant's "dozed" look, or slow reaction.

In assessing the objective validity of Stibbe's belief that the defendant's ability to drive was impaired, Crown counsel invites me to draw an adverse inference, as may be permitted by s. 258(3), from the defendant's refusal to comply with the AID. I return to this consideration in due course.

[29] Each of the bulleted factors identified by Stibbe attracts qualification and skepticism upon review, as does what I see as the officer's generally delinquent approach to assessing the "totality of the circumstances".

[30] As to the latter, Stibbe's assessment of impairment is both incomplete and tendentious. Until extracted in cross-examination, or as adduced through other witnesses, his testimony ignores the evidence of the defendant's lucidity, responsiveness, fine motor control and uncompromised dexterity. His description of the defendant's eyes as glossy and not "red" – is not confirmed by his partner Cristifaro and is contradicted by the breath technician. His claim that the defendant appeared "dozed" or slow to react is, again, not confirmed by the other witnesses. Indeed, the cornerstone indicator of such doziness – as described by Stibbe – is his having to pull the unresponsive defendant out of his car. In fact, as confirmed by the video record, the defendant exited the car quickly, efficiently and without any physical assistance from the officer.

[31] Stibbe's reliance on the defendant's driving behaviour as indicative of his impaired ability to drive is particularly troubling. As Stibbe both effectively volunteered in direct examination and readily accepted in cross, the defendant's unusual driving maneuver reflected his deliberate manipulation of the car to perform an exercise of stunt driving. It may have grounded a charge of careless driving, as was Stibbe's original investigatory inclination, but it did not reflect a loss of control of the vehicle, let alone one mediated by the consumption of alcohol. Expressed in the language of appellate review, Stibbe misapprehended, or at least misconstrued, the significance of the defendant's driving in the calculus of impairment. Further, his erroneous approach was not a function of his mechanical ignorance but, rather, his tendentious approach to the defendant, as also reflected in his warped recall of the defendant's exit from the Mercedes.

[32] The defendant's conduct and verbal exchanges at the station were captured on video. Stibbe several times agreed that the defendant's behaviour and appearance remained constant throughout the evening, that the man he released from the station at 10:45pm was in effect the same man he first encountered a little before 8pm. Accordingly, it seems not improper to independently review the video evidence of the defendant's physical and verbal conduct at the station for signs of impairment that would, if present, have been visible to Stibbe at the time his belief in the defendant's impairment crystallized – in effect, a "reading-back", if of behavioural indicia of impairment rather than BAC, premised on Stibbe's concession. I appreciate, of course, that I cannot smell alcohol on the defendant's breath or see the discolouration, if any, of his eyes. That said, there is nothing about the defendant's comportment, manner of speech, agility, responsiveness or interpersonal civility that, as video-recorded, speaks to anything but his complete sobriety. Nor do Cristifaro or Preuthun suggest otherwise. Further, Preuthun rated the effect of alcohol on the defendant as no higher than "slight", without opining that he was in any way impaired.

[33] In Chehil, the Supreme Court, as earlier cited, made clear that, "[e]xculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors". Stibbe, regrettably, did not adhere to this directive. He ignored benign indicia, misread equivocal information and prejudicially misrecalled some critical portions of his early exchange with the defendant and factored them into his reasons for arrest and consequent approved instrument demand. Again, as said in Chehil, it is the "requirement for objective and ascertainable facts" underlying the officer's expression of actionable opinion that "permits an independent after-the-fact review by the court and protects against arbitrary state action". Having conducted the requisite review, I am not satisfied that there is a basis for concluding that there were reasonable and probable grounds to believe that the defendant's ability to drive was impaired at the time of his arrest. Accordingly, there was no proper basis for the AID made of him. In these circumstances, the defendant can suffer no liability for failing, as here, to comply with an unlawful demand.

[34] In the result, I find the defendant not guilty of the charge of failing to comply with a demand to provide breath samples to determine his BAC.

(d) The Impaired Driving Charge

[35] To the degree that the analysis rests on the same evidentiary foundation, the standard of proof beyond reasonable doubt of the offence of impaired driving cannot be crested where, as here, I am satisfied that there were not reasonable and probable grounds to arrest the defendant for the very same offence. An acquittal for this offence would, then, ordinarily and ineluctably follow.

[36] However, the totality of the evidence bearing on the offence of impaired driving is not identical to that apparent to the arresting officer at the time the charge was laid. In this regard, Crown counsel properly alerts me to s. 258(3) of the Code which, in its relevant part, reads:

[E]vidence that the accused, without reasonable excuse, failed or refused to comply with a demand made under section 254 is admissible and the court may draw an inference adverse to the accused from that evidence.

A "demand made under section 254" includes, as here, an approved instrument demand. There is no doubt the defendant failed to comply with such demand. Any adverse inference-drawing from such evidence is, as the provision clearly directs, discretionary. As said by the Court of Appeal in R. v. Lyaruu, 2011 ONCA 547, at para. 3, the adverse inference exercise is "permissive"; if drawn, the adverse inference must be "weighed in the context of all of the other evidence" of impairment.

[37] As applied to the presenting circumstances, this argument invites several responses. First, I note that the defendant's first expression of non-compliance with the statutory demand was after he had already been arrested for impaired driving. His refusal played no role in PC Stibbe's crystallization of the grounds on which he relied to charge the defendant with that offence nor does Stibbe purport to rely on its potential probity at any point. Accordingly, the defendant's non-compliance plays no role in my assessment of the objective propriety of Stibbe's incriminatory belief in the defendant's impairment or the lawfulness of the demand that followed. To be clear, were I to now find the defendant guilty of the offence of impaired driving it would be on the basis of an amplified record, on evidence that supplements the grounds on which the arresting officer relied.

[38] Bearing in mind that I must determine whether the defendant's ability to drive was impaired by alcohol on the basis of the totality of the evidence, including, if admissible, his repeated refusals to comply with the AID, this first consideration is not necessarily fatal to my judicial assessment. I harbour some doubt, however, as to whether the evidence of refusal on which the Crown asks me to adversely rely is here available for that purpose. As s. 258(3) clearly directs, an adverse inference obtains only where a refusal or failure to comply with a demand is "without reasonable excuse". While not here determining the issue, I am less than certain that failure to comply with an unlawful breath demand can be anything other than a "reasonable excuse", whether or not positively advanced by the defendant on that basis.

[39] Finally, and dispositively, I am of the view that the evidence of the defendant's non-compliance with the AID, when properly considered and weighed for the s. 258(3) purpose invoked by the prosecution, does not so sufficiently enhance the Crown's case to ground a finding of guilt. As earlier recited, absent reliance on the statutory inference the evidence bearing on the question of whether the defendant's ability to drive was impaired by alcohol did not clear the threshold of probability. Assigning appropriate valence to the permissible adverse inference, does not convert the cumulative probity of the Crown's case to one of proof beyond reasonable doubt. As said in Andrews, supra, at para. 30:

… The question is simply whether the totality of the accused's conduct and condition can lead to a conclusion other than that his or her ability to drive is impaired to some degree. Obviously, if the totality of the evidence is ambiguous in that regard, the onus will not be met. … In the end the test remains, is the ability to drive of the person impaired [by alcohol]? [Underscoring in original; italicization added.]

Applying this test of "totality", including that arising from his alleged guilt-betraying AID refusal, I am still left with a reasonable doubt as to the defendant's guilt. Accordingly, he is also acquitted of this second charge.

D. Conclusion

[40] Consistent with these reasons, I find the defendant not guilty of both charges on which he was arraigned.

Released on October 24, 2017

Justice Melvyn Green