Court Information

Date: February 22, 2018

Ontario Court of Justice Central West Region Brampton, Ontario

Parties

Between:

Her Majesty the Queen

-and-

Ronald Regan

Reasons for Judgment

Before: Duncan J.

Charge and Initial Facts

[1] The defendant is charged with over 80, offence date February 14, 2017.

[2] On the afternoon of February 14, PC Kosher, an experienced police officer and breath technician, was conducting a one man random sobriety check stop of vehicles as they entered the parking lot of a small plaza off of Aquataine Road in Mississauga. The defendant was driving one of the vehicles stopped. The officer spoke to the defendant and noticed an odor of alcohol on his breath and that his eyes were watery and blood shot. He asked when the defendant had had his last drink and was told that it was a half hour earlier. The officer formed the requisite suspicion and administered an ASD test which the defendant failed. He was arrested and taken for breath tests conducted at 4:48 and 5:10 that betrayed blood alcohol content of 155 and 156 mgs %.

Defendant's Evidence

[3] The defendant testified and raised a number of points regarding the time of driving and other aspects of the events surrounding his arrest. He said that he drove into the lot and stopped in a line of 3 or 4 cars that the officer was dealing with. He maintained that it was then 2:15 pm as displayed on the clock in his truck. He said he waited about 15 minutes while the officer came down the line dealing with each driver and vehicle at some length. When the officer got to him (it would then be about 2:30) he almost immediately said "you smell of alcohol" and then took his keys and wallet. He walked away and returned a few minutes later with a breath testing device and administered the test through the open driver's window. He made no demand. He then went to his police vehicle and moved it to be positioned behind the defendant's truck. He then arrested the defendant and took him to the police cruiser where about 15 minutes passed before they left for the station. The defendant testified that he was never read any demand, rights to counsel or caution while at the scene of arrest.

Police Officer's Evidence

[4] These points raised by the defendant were put to the officer in cross-examination who provided further detail. He testified that when he had set up in the plaza at 1:18 pm he parked his police car about 4 or 5 car lengths in off the street in one of the two entrance lanes, funneling the cars into single file in the other lane. He said that he stayed put and let the cars drive up to him. His interaction with each was very brief – to say hello, to ask if any alcohol had been consumed and to make a quick observation. If there was no suspicion the car would be sent on its way. He confirmed that it was 3:08 pm when he dealt with the defendant and formed his suspicion. He denied the suggestion that it was actually 2:30 when he dealt with the defendant and denied that the defendant's car could have been waiting in line for 15 minutes. He rejected the suggestion that he failed to read an ASD demand and that he failed to read rights to counsel or caution upon arrest. According to the officer's evidence, all of the usual steps and protocols regarding rights to counsel, cautions and demands were followed.

[5] P.C. Kocher's notes, written on the standard "Driving Offence Notes" form used in this jurisdiction, had recorded the various times expressed in 24 hour mode. The original notations beginning with "1708" were crossed out and corrected to read "1508" etc. Kocher explained that he had made a mistake in transposing from the 12 hour clock on his car computer to 24 hour notation. He had noticed his error and corrected it.

Was the First Breath Sample Taken Within 2 Hours of Driving?

[6] The breath tests were taken at 4:48 and 5:10. On the defendant's evidence, he was last driving or in care or control at 2:30, putting the first test outside the 2 hour limit. On the police evidence the driving was at 3:08 and the first test was within time.

[7] This is a credibility issue. The burden is on the Crown to prove compliance with the 2 hour requirement. The defendant is entitled to the benefit of reasonable doubt. However I find the defendant's evidence to be unreliable and untrustworthy and I have no reasonable doubt on this matter.

[8] First some minor points: there is no reason given by the defendant or apparent from the circumstances as to why he would take notice of or remember the time of his stopping to have been at 2:15. By contrast the officer would have been fully aware of the importance of times and made near contemporaneous note of them. The amendment of the notes regarding times in 24 hour format does not give rise to a suspicion that the events happened before 3:08 – to the contrary on their face they might be taken to suggest that everything occurred two hours later. While the initial error raises concerns about carelessness, I am satisfied that it has been adequately explained. Another point: If the stopping occurred at 2:30 there is a missing 38 minutes in the narrative that neither side suggests occurred (see below under "As soon as practicable").

[9] But beyond these points, there are two features that more significantly undermine the defendant's credibility. With respect to reliability of the defendant's memory, he had testified that he had not been read any demands caution or right to counsel at the scene. However he also testified that he did not realize until he saw it on videotape shortly before trial that he had been taken out of the breath room and spoke to counsel for several minutes just prior to breath-testing. Even after having seen the video, he did not recall that event. Clearly if he had no recollection of that occurrence, it is quite likely that other aspects of his arrest and interaction with the police could also have escaped his memory.

[10] Further, while it is tempting to leave it as a matter of honest unreliability on the part of this 75 year old gentleman, I feel obliged to consider a point that I think also seriously and negatively impacts the defendant's credibility. At trial, in examination in chief, the defendant said that he and his passenger had each had "one beer" at lunch. In cross-examination he first repeated the claim of one beer and maintained that he had earlier told the court that it was two beers – Coors light – and that he had told the officer the same thing. However, his breath readings were 155 and 156, almost twice the legal limit! If permitted to do so, I would conclude that the defendant is being less than candid with the court about his consumption, to put it charitably.

[11] Am I permitted to draw such a conclusion? The law has long maintained that without expert evidence a court is not permitted to draw its own conclusions regarding impairment from blood alcohol readings: R v Letford. Similarly it would not be permissible to draw any conclusion, absent expert evidence, regarding blood alcohol readings from consumption evidence alone. That is why a Carter defence always required an expert to interpret the defence consumption evidence and relate it to blood alcohol levels.

[12] But in my view there is a distinction between those cases where the fact of impairment or a particular blood alcohol level is an element of the case or a necessary fact that must be proven and a situation, as here, where the issue relates only to credibility. In matters of credibility, a trier of fact is not constrained by a requirement for expert evidence. It don't need a weatherman to know which way the wind blows. It may use its common sense and experience in weighing and accepting or rejecting evidence.

[13] There can be two approaches to this. First, it is arguable that in some cases a court might be in a unique position gained from on-the-job experience. In R v Ashley, 2012 ONCA 576, the Court of Appeal affirmed a trial court's use of his experience in having heard many drug importing cases to make findings in respect of whether certain behaviours of the accused were consistent or inconsistent with her being a knowing drug courier. Applying this to the present situation, judges of this court, including myself, have been presented countless times with Carter and similar defenses that have maintained that modest consumption, such as two beers, could not possibly result in a BAC above the legal limit. That proposition has always been accepted in those cases, the only issue being whether the claimed consumption is true. Accordingly, my legal and judicial experience has educated me that two beers could never result in blood alcohol content that is almost twice the legal limit. When a witness claims otherwise, I am entitled to be highly skeptical and reject such a claim.

[14] Beyond the special experience of a court, in my view it is a commonly and correctly held belief in the general population that 2 beers will keep one within legal limits. Responsible people conduct themselves accordingly with that or similar limit mentally fixed as a line that should not be crossed. On the other side of the coin, irresponsible people who have over-consumed often tell police that they have had "just two beers" in the hope that the claim will be believed and will exculpate. I suspect that is why the present defendant injected it unnecessarily into his evidence. In short, an understanding that consumption of modest amounts such as two beers before driving will keep one on the right side of the law is part of the accepted knowledge of our society. No one – judge or layman – could believe that two beers could put one at twice the legal limit. The defendant's claim – gratuitous though it was – destroyed his credibility.

[15] I am satisfied beyond a reasonable doubt that the first test was taken within 2 hours of driving.

Demands and Right to Counsel at the Scene

[16] For the same reasons as given above, I reject the defendant's evidence on these points and find that all of the necessary procedures were followed.

As Soon as Practicable

[17] This issue is not dependent on the credibility of the defendant. The chronology according to the police officer was:

• 3:08 – first interaction; asd demand
• 3:11 – asd test – fail – arrest
• 3:13 – rights to counsel
• 3:15 – back-up officer arrives
• 3:16 – breath demand
• 3:28 – left for 22 Division
• 3:56 – arrive 22 Division
• 4:12 – into station
• 4:15–4:28 – preparing Intoxilizer
• 4:28 – defendant brought in: video turned on; rights to counsel read again – defendant elects to speak to duty counsel
• 4:33 – duty counsel on phone
• 4:45 – defendant completes consultation with duty counsel
• 4:48 – first sample
• 5:10 – second sample

[18] Both the police officer and the defendant said there was some delay in leaving the scene of arrest. The officer said that the delay was about 17 minutes (3:11–3:28) during which time rights to counsel, demands, etc. were being given; he was waiting for and then instructing the assisting officer, and waiting for directions from dispatch as to where to take the defendant for testing. The defendant estimated the waiting time as 15 minutes and attributed it to waiting for the second officer and the tow, though he never saw either arrive. The other point of delay (3:56–4:12) was a wait outside the sally-port at the station because there were already two other police cars in there. The defendant himself estimated that they were waiting "5 or 10 minutes on the ramp".

[19] The test is "as soon as practicable" not as soon as possible. In my view the Crown has satisfied that test in this case. The delays referred to were minor and well explained.

Conclusion

[20] The defendant is found guilty as charged.

February 22, 2018

B. Duncan J.

M Mattis for the defendant D Mangat for the Crown