Court Information

Court File No.: Toronto Region

Date: 2017-12-04

Ontario Court of Justice

Parties

Between:

Her Majesty the Queen

— And —

Danilo Cabus

Judicial Officer and Counsel

Before: Feldman J.

Heard on: October 26, 2017

Reasons for Judgment released on: December 4, 2017

Counsel:

• M. Shumka, for the Crown
• A. Sobcuff, for the accused Danilo Cabus

FELDMAN J.:

Introduction

[1] Danilo Cabus entered not guilty pleas to Operation Impaired and Operation over 80. It is alleged that he was driving his motor vehicle erratically while having more than the legal limit of alcohol in his blood system.

[2] The Crown called a civilian witness and two police officers in support of its case. Mr. Cabus testified in his own behalf, and, as well, called his wife to give evidence.

[3] Mr. Cabus submits that the investigating officer did not have reasonable and probable grounds to arrest him, that his breath tests were not taken as soon as practicable and that the prosecution failed to prove that his ability to drive was impaired by alcohol.

[4] I must weigh the evidence and the credibility of the witnesses in making my findings of fact. I am mindful of the burden of proof on the Crown.

The Evidence

[5] Andrea Badri is a 21-year-old university student. On September 28, 2016, at about 9 p.m., her father was driving her home from school southbound on Morningside Rd. in Scarborough. Mr. Cabus was driving ahead of them. The traffic was steady and the weather clear.

[6] Ms. Badri was concerned that the defendant was impaired. She says he had trouble staying in his own lane, at times swerving into the opposite lane causing northbound cars to take evasive action, at one point almost hitting a vehicle that had to honk to get his attention. She says there was a regular flow of traffic northbound. She agrees there were probably potholes on Morningside road, but did not notice many in the passing lane.

[7] Ms. Badri called 911 after a few minutes of observation. Her father continued to follow the accused until the latter turned left on Coronation Ave. She provided police with a license plate number for Mr. Cabus's vehicle.

[8] At the time, Sgt. Paul Sweenie was acting road supervisor for other traffic officers. At 9:45 p.m., he received a radio call about an impaired driver whose car was swerving and unable to maintain its lane. The vehicle was last seen eastbound on Coronation Rd. Its license number was registered to 215 Manse Rd., unit 52.

[9] Sgt. Sweenie was driving on Manse Rd. at the time. He saw the defendant make a slow turn into 215 Manse Rd. He followed behind him while activating his emergency equipment. He says Mr. Cabus continued to drive very slowly at 2-3 kmh. for about 90 feet in a 10 kmh zone, only stopping in the driveway of unit 52.

[10] After he stopped, Mr. Cabus got out of his vehicle. The officer says he saw the accused stumble initially by falling forward, but he was able to maintain his balance. When speaking with him, Sgt. Sweenie smelled alcohol on his breath.

[11] The officer told the court that the defendant had his wallet out and fumbled with it 2 or 3 times before retrieving his driver's license. When asked if he had anything to drink, Mr. Cabus was initially silent. When the officer told him he could smell alcohol on his breath, the accused said he "had a couple".

[12] Sgt. Sweenie requested another unit to take over for him both because he was alone and as the road supervisor it was important that he not be tied up in individual investigations. Mr. Cabus's spouse came out and spoke to the officer. He asked her to return home.

[13] Sgt. Sweenie testified that at 9:48 p.m., he formed reasonable and probable grounds to arrest the accused and did so at 9:50 p.m. He said those grounds included details from the 911 call, the smell of alcohol on the defendant's breath, the admission of his having a "couple" of drinks, an abnormally slow turn, slow driving, the fact that the defendant failed to stop for 80–90 feet after the emergency equipment was activated, that he stumbled on getting out of his vehicle and had difficulty taking his driver's license out of his wallet.

[14] Mr. Cabus was handcuffed and placed in the rear of the cruiser. He was read his rights to counsel at 9:52 p.m. A breath demand was made. At 9:57 p.m., the officer was advised by dispatch to bring his detainee to 41 Division, the closest station for breath testing.

[15] While he waited for other officers, Sgt. Sweenie spoke with the defendant's wife. Those officers, one of whom was P.C. Cole Robinson, arrived at 10:03 p.m. and took custody of the accused. Sgt. Sweeney waited until the tow truck arrived at 10:24 p.m. At the scene, Mr. Cabus informed the police that he had to urinate badly.

[16] P.C. Robinson left for 41 Division at 10:05 p.m., arriving 15 minutes later. He entered the sallyport at 10:23 p.m. The accused had to remain in the cruiser for 14 minutes while the officer typed information about the arrest of his detainee into his computer. He was required to do so by Staff Sgt. Birmingham, who informed him that his earlier input of information at the scene had not been received. He says this took about 5-10 minutes to complete before he was let into the booking hall at 10:37 p.m.

[17] P.C. Robinson told the court that during this process the accused stood on his own in front of the booking Sgt. and showed no signs of impairment. He was taken to the report room at 10:42 p.m.

[18] P.C. Lemonia Paroussoudi is a qualified breathalyser technician. She arrived at 41 Division at 10:40 p.m. She prepared her breathalyser instrument, an Intoxilyzer 8000C, to be in proper working order and ready to receive breath samples by 10:50 p.m.

[19] Just prior to this, P.C. Robinson contacted duty counsel who called back at 10:56 p.m. Mr. Cabus spoke to her until 11:04 p.m., when he was taken to the washroom. He was then escorted to the breathalyser room at 11:08 p.m. for his first test.

[20] P.C. Paroussoudi told the court that as Mr. Cabus entered from the report room she told him to do up his pants zipper and observed that in response he pulled his pants down to his knees. She thought he might be joking.

[21] The result of the defendant's first test was 135 mgs. He was returned to the report room at 11:17 p.m. At 11:36 p.m., he was brought in for his second test. The result was 131 mgs. He was released from the station at 1:20 a.m.

[22] In the Alcohol Influence Report, the officer describes Mr. Cabus as having an unsteady gait when first brought in, watery and bloodshot eyes and a weak smell of alcohol on his breath. He said the defendant admitted to "maybe 2 whiskeys".

[23] By contrast, the breath room video shows Mr. Cabus walking in normally and sitting down without difficulty. He is responsive and clear in his answers. He is cooperative. His motor skills do not appear diminished, although his mood shifts at times.

The Defendant's Evidence

[24] Mr. Cabus is 62 years old and has been a truck mechanic for over 20 years. He is married with 3 adult children. On Sept. 28, he says he was doing renovations in his brother's home the entire day. He told the court that after completing his work, he drank 2 shots of whisky between 5:30-6:00 p.m., finishing at about 6:45 p.m., after which he rested by watching television. He left sometime after 8:30 p.m. He said he felt fine.

[25] Mr. Cabus believes he was driving well. He says it is not true he was swerving or having difficulty remaining within his lane. He suggests that if he did swerve it was to avoid 3 potholes and a manhole cover south of Lawrence Ave. He did not address almost hitting a vehicle in the opposite lane and says, contrary to Ms. Badri's evidence, that there were almost no cars travelling northbound.

[26] He explained that in turning into the cul de sac where he lives, he slowed down because of 2 speed bumps and the low speed limit. He says he was not that slow and that the officer was wrong in that regard. He denies that it took him time to stop after the officer engaged his emergency equipment. He says he only saw the emergency lights when he was 4-5 feet from his driveway.

[27] Mr. Cabus denies stumbling or losing his balance when getting out of his vehicle. He said he had no difficulty retrieving his license from his wallet.

[28] The defendant also denies pulling down his pants in the report room and says P.C. Paroussoudi is wrong to suggest it. He insists that he was only allowed to urinate after completing his breath tests.

[29] Jennifer Cabus testified that from her doorway she saw her husband get out of his vehicle normally and without stumbling.

Were There Reasonable and Probable Grounds for the Arrest?

[30] The test is objective and not onerous: were there reasonable and probable grounds to believe the defendant's ability to drive was even slightly impaired by the consumption of alcohol: R. v. Bush, 2010 ONCA 554, at para. 48.

[31] Impairment is established where the prosecution proves any degree of impairment from slight to great: R. v. Stellato (1993), 12 O.R. (3d) 90 (C.A.), aff'd , [1994] 2 S.C.R. 478.

[32] 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 and regard for the road: R. v. Censoni, [2001] O.J. No. 5189 (S.C.), at para. 47.

[33] The arresting officer is experienced. Of significance, he received information about the accused's vehicle swerving and a near-accident. He, as well, observed unusually slow driving and slow response time. He received an admission from Mr. Cabus that he had consumed alcohol. He smelled alcohol on the defendant's breath. There was some indication of diminished motor skills in his observed manner of driving. On this evidence, there was an evidentiary basis permitting an inference that the accused's ability to drive was at least slightly impaired by alcohol. The officer, in my view, had reasonable and probable grounds for the arrest.

Were the Breath Tests Taken As Soon as Practicable?

[34] In R. v. Vanderbruggen, [2006] O.J. No. 1138 (Ont. C.A.), Rosenberg J., at para. 13, said that in deciding whether breath tests were taken as soon as practicable, trial judges were to look "at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test". The court is to decide whether the breath samples were taken within a reasonably prompt time in the circumstances.

[35] Sgt. Sweeney stopped the accused within minutes of receiving a radio call at 9:45 p.m. He arrested Mr. Cabus at 9:50 p.m. Given his continuing responsibilities as road supervisor, he called for officers to transport his detainee following the breath demand at 9:57, resulting in a minimal delay of 8 minutes before those officers departed for 41 Division, determined to be the closest location for a breath technician. They arrived at 10:20 p.m. A further delay of 14 minutes in the sallyport resulted from the transporting officer having to repeat his input of arrest information to the booking Sgt. The computer error was inadvertent. Time taken in arranging for and having the defendant speak to duty counsel was 17 minutes. The Intoxilyzer instrument was in proper working order at 10:50 p.m. The first breath sample was taken at 11:15 p.m., 90 minutes after the accused was seen driving, well within the statutory 2 hour limit: Criminal Code s. 258(1)(c). The explanations for the delays were reasonable.

[36] I am satisfied that the breath tests were taken as soon as practicable. They will be admitted into evidence.

[37] In the result, on all the evidence, I am satisfied beyond a reasonable doubt that Mr. Cabus was operating his motor vehicle with more than the legal limit of alcohol in his system. There will be a finding of guilt on the Operation over 80 count.

Has the Crown met the Stellato Standard?

[38] Andrea Badri is an independent witness. She was straightforward and measured in recounting her observations of the accused's manner of driving. I accept her evidence that she saw Mr. Cabus swerving more than once into the northbound lane on Morningside Rd., on one occasion almost hitting a northbound car, and having some difficulty staying within his own lane. I reject the defendant's evidence in this regard as self-serving.

[39] The defendant's slow turn into his cul de sac on Manse Rd., his unusually slow driving into his driveway and his failure to be aware of the officer's emergency equipment until 4-5 feet from the driveway indicate a slight diminishment of his motor skills. In addition to some minor indicia of impairment, I attribute the defendant's dropping of his trousers in the report room to be bizarre behaviour by an adult permitting an inference that his mood or judgment was affected by alcohol.

[40] On all the evidence, I am satisfied to the requisite standard that the defendant's ability to drive was at least slightly impaired by alcohol. There will be a finding of guilt on the Operation Impaired charge. Given the earlier finding, this charge will be stayed.

Released: December 4, 2017

Signed: "Justice L. Feldman"