Court Information
Ontario Court of Justice
Date: April 16, 2018
Central West Region - Hamilton
Court File No.: 17-3852
Parties
Between:
Her Majesty the Queen
— And —
Richard Bullock
Judicial Officer and Counsel
Before: Justice Anthony Leitch
Heard on: February 1, 26 and April 9, 2018
Reasons for Judgment released on: April 16, 2018
Counsel:
- James Nadel — Counsel for the Crown
- Phillip Patterson — Counsel for the defendant Richard Bullock
Judgment
Leitch J.:
Introduction
[1] Richard Bullock is charged with refusing to provide a sample of his breath into an approved instrument contrary to section 254(5) of the Criminal Code of Canada. Additionally, he is charged with care or control of a motor vehicle while impaired by alcohol. The police received information that he was on 5th Road at Green Mountain Road in Hamilton in the driver's seat of a motor vehicle with a beer can in his hand. They attended to investigate and demanded that he provide a sample of his breath into an approved instrument because he was in the driver's seat and showed signs of impairment by alcohol. The main issue in this trial is whether the Crown has proved beyond a reasonable doubt that the demanding officer had reasonable and probable grounds to believe that he was impaired by alcohol when that demand was made. The second issue is whether those signs of impairment prove beyond a reasonable doubt that he was impaired by alcohol at the time he was in care or control of his motor vehicle.
[2] In a prior ruling I rejected an application under section 7 of the Charter of Rights and Freedoms for an exclusion of the refusal given to the breathalyzer technician at the police station. At the time of that ruling it was contemplated that the defence would argue that the defendant had a reasonable excuse not to provide a breath sample. Although it was not argued in this case in submissions, likely because of my prior ruling, I will examine whether the circumstances that led to his refusal amount to proof on the balance of probabilities that he had a reasonable excuse to refuse to provide a breath sample.
I. Did the Police Have Reasonable and Probable Grounds to Make the Demand?
[3] The Crown must prove the essential element of a proper demand beyond a reasonable doubt in this case. Any failure to comply with a demand which is not made with reasonable and probable grounds cannot result in a conviction. The essential elements of the offence were discussed in Regina v. Goleski:
(71) As discussed in Lewko at para. 9, the elements of the offence that the Crown must prove are: (i) a proper demand; (ii) a failure or refusal to provide the required breath sample; and (iii) an intention to fail or refuse to provide the required sample. In R. v. Moser (1992), 71 C.C.C. (3d) 165 (Ont. C.A.), at 176, Mr. Justice Doherty said this:
The essential elements of the offence described in s. 254(5) consist of a proper demand and a refusal or failure to comply with that demand. The defence of "reasonable excuse" is not a denial of either of those essential elements but refers to "matters which stand outside the requirements which must be met ... before a charge can be supported": per Laskin J. in Taraschuk v. The Queen (1975), 25 C.C.C. (2d) 108 at p. 110, 62 D.L.R. (3d) 84, [1975] 1 S.C.R. 385. The defence of "reasonable excuse" is engaged only after the Crown has proved a proper demand and a failure or refusal to comply with that demand.
[4] There is no doubt in this case that the Crown has proven that Mr. Bullock refused with intention to provide a breath sample to the breathalyzer technician. He proffers reasons for his refusal when the intoxilyzer was presented to him, namely that he wasn't drinking and he wasn't driving. In his testimony before me he indicated that other issues were in his mind when he refused but there is no doubt that his words are an unequivocal refusal to provide a sample. His evidence that his treatment at the hands of the police was part of the reason why he refused to provide a breath sample have no effect on his unequivocal words of refusal. Rather, his evidence on that point will be analysed as a potential reasonable excuse later in these reasons. It was not argued that he was not in care or control of the motor vehicle at the relevant time. He was in the seat normally occupied by the driver, with the keys in the ignition and the present ability to set the vehicle in motion. In fact, on his evidence, he believed that he was not impaired so there is no doubt that he intended to drive from that location. Care or control is not an issue in the case.
[5] Reasonable and probable grounds to make a demand is not an onerous standard. The standard lies somewhere between suspicion and proof beyond a reasonable doubt. It is not proof beyond a reasonable doubt of impairment to drive, which may be established by proof of any degree of impairment from slight to great. Extreme intoxication is not required to establish reasonable and probable grounds. There must be a credibly based probability established in the evidence of the objective facts known to the demanding officer that the defendant's ability to drive was impaired anywhere between slight to great impairment. Impairment to drive is established by showing a reduced ability to perform complex motor functions including impacts on perception, field of vision, reaction or response time, judgement and regard for rules of the road. Reasonable and probable grounds to believe that a person is slightly impaired to drive is sufficient to found a demand under section 254(3) of the Criminal Code. (see R. v. Bush (2010) O.J. # 3453 (Ont. C.A.) at Paragraphs 37-48).
[6] I have examined the evidence to determine what objective facts were known to the officer at the time that she made the breathalyzer demand. I accept that she subjectively believed that she had reasonable and probable grounds but have gone on to determine whether that belief is objectively reasonable. I must examine the totality of the facts established on the evidence which point to a reasonable and probable belief that the defendant's ability to drive was at least slightly impaired. In doing so I caution myself as directed in Regina v. Bush, supra. At paragraph 56:
(56) An assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of an impaired driver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are present and which are absent as the essential test. There is no mathematical formula with a certain number of indicia being required before reasonable and probable grounds objectively existed; Censoni at para. 46. The absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding of reasonable and probable grounds based on the observed indicia and available information: R. v. Costello (2002), 22 M.V.R. (4th) 165 (Ont. C.A.) at para. 2; Wang, at para. 21.
[7] In applying R. v. W.D. I have made findings of fact on each of the salient facts which could, if accepted, represent indicia of impairment. If I accept the evidence of the accused on certain points or am left in doubt about those points I must enlist that exculpatory evidence to determine whether certain indicia should be removed from the reasonable and probable grounds evaluation. I have gone on to review all of the facts that I do accept to see if the Crown has proven beyond a reasonable doubt that the police made the demand on reasonable and probable grounds. My findings of fact are as follows:
Factual Findings
(1) Citizen Report and Beer Can
Information was received from a citizen who observed, by reasonable inference, the defendant with a beer can in his hand in the driver's seat of his motor vehicle on 5th Road. I accept Constable Nash's evidence on this point which is corroborated by Sgt. Dunham's evidence.
(2) Odour of Alcohol
Sgt. Dunham did not smell alcohol when he spoke first to the defendant. Constable Nash smelled a strong odour of an alcoholic beverage on the defendant's breath. I do not see this as a conflict as Constable Nash was specifically placing herself six to seven inches from the defendant's face to see if she could smell alcohol. I note as well that the defendant has testified that he had consumed approximately 1 L of cider approximately 6 hours prior. I accept that Constable Nash smelled a strong odour of beverage alcohol on the defendant's breath. Her evidence is corroborated by the evidence of the breathalyzer technician who noted a strong odour of an alcoholic beverage emanating from the defendant in the breath room.
(3) Admission of Drinking
The defendant said when asked if he had been drinking "I had a few". Officer Nash said he admitted drinking a few beers when asked. I accept he was drinking cider and accept when he said "a few" he did not say the word beer. The defendant testified he had only drank two 473 ml 4.7-5% Batch: 1904 brickworks ciders several hours earlier. If he drank two why not say a couple or two? A few is commonly understood to mean at least three. Three empty cans of cider were found in the rear of the defendant's car in a search by Sergeant Dunham. I find on this evidence the defendant was underestimating how much he had to drink that day and his answer of a few was closer to the truth. He had at least 3 ciders that day. Even if I am wrong the officer is entitled to rely on his answer in forming her grounds, and that answer told her he had had at least three.
(4) Eyes
Officer Nash testified Mr. Bullock's eyes were glossy and watery. She noted that observation in her notebook and testified to her memory of that observation at trial. The defendant did not contradict her in his evidence so her evidence is unchallenged on this point. Sergeant Dunham did not make any similar observation about the defendant's eyes, but I accept he was with him only a short time and then took the defendant's licence to his cruiser to check him on the police records system. He was not searching for signs of impairment as he had not smelled alcohol on the defendant and had only been shown sealed alcohol in a bag on the front seat. I don't find it surprising he did not make the same observation as Officer Nash about the defendant's eyes. I accept Constable Nash's evidence that she observed him to have glossy and watery eyes.
(5) Walking and Stumbling
I accept the evidence of Constable Nash that he stumbled slightly and then had trouble walking. The defendant testified that he had trouble exiting the car but denies being asked to walk to the rear of his car. Officer Nash said he did walk to the back of the car and had trouble walking while doing so, tripping over his feet and using his car to steady himself. The defendant said he walked from his car to between the two police cruisers across the road unassisted and did not have trouble walking after the 1st couple of steps. I find that I am left in doubt on the defendant's evidence about the extent of his trouble walking after getting out of his car. I find there was at least a slight stumble exiting his car. He explains it by stiffness in his legs and an incline in the roadway but even if that explains the slight stumble (and the incline is not that steep as shown in exhibits #2 and #3) it was reasonable for the officer to attribute this as a possible sign of impairment, as part of the constellation of facts that led her to form grounds for a demand.
(6) Sealed Alcohol
I accept that she saw sealed alcohol in a bag on the seat beside the defendant. This fact goes to reasonable and probable grounds on the objective standard. Access to sealed alcohol in the front seat of a car when a citizen has observed him with a beer in his hand in the driver's seat leading to the police undertaking the investigation can and did factor into the development of grounds for the demand. The evidence on how this was discovered leaves much to be desired. I am not sure if Officer Dunham asked the defendant to open the bag with the sealed alcohol in it or whether Officer Nash did. I don't accept there was an alcoholic drink in the console as she testified. Sergeant Dunham found no such thing in his search of the car and Constable Nash's notes are silent on both these things. That said, I accept on all the evidence that, no matter who asked the defendant to open the bag, he had sealed alcohol in it and she knew that prior to making the impugned demand.
[8] There were several conflicts in the evidence between Sgt Dunham and Constable Nash on matters of no relevance to the development of grounds. These include where Dunham was while she was investigating the defendant, whether she ever had his driver's licence in her hands at the defendant's car, and who asked him to open the bag on the front seat. I find these conflicts, while present, are not so serious that it would lead to a rejection of all of Constable Nash's evidence. She is a moderate note taker who may have overreached in certain areas of her evidence but as I have found, the core of her evidence on the central issue of what she saw, smelled and heard is reliable and capable of acceptance.
[9] There are also conflicts between the evidence of Officer Nash and the defendant, most notably on the degree of bad walking and where the defendant walked after he left his car as directed. I have set out earlier in my reasons my reconciliation of those conflicts with the principles of R. v. W.D. at the forefront of my analysis.
[10] The evidence that he was not impaired that day, that he had not had an alcoholic drink for almost six hours and that he had only consumed two pints of cider that day could all cast doubt on the impaired charge but do not, in my view, touch the grounds for the demand. He may not have been impaired that day but I find Constable Nash had reasonable and probable grounds to believe that he was impaired by alcohol based on the totality of the grounds I accept she had. A citizen report of him with a beer in his hands in the front seat, an admission of having consumed "a few" alcoholic beverages, sealed alcohol beside him on the seat, a strong odour of alcohol on his breath, glossy and watery eyes and a stumble exiting his car together amount to reasonable and probable grounds to make a breath demand; are enough to satisfy the not onerous legal test; and are enough to reasonably believe his ability to operate a motor vehicle was at least slightly impaired by alcohol. In short, these grounds were enough to require a test to show whether he was impaired by alcohol or not.
II. Reasonable Excuse
[11] By agreement the defendant's evidence given on the s. 7 Charter application was applied to the trial. The defendant claims in that evidence and in the further evidence given at trial that part of the reason he refused to provide a breath sample was an assault he suffered when the police attempted to remove his wedding ring at the booking desk, just prior to the administration of the breathalyzer. For the reasons given in that ruling I found that the assault was minimally intrusive and did not amount to a violation of the Charter. He must establish this reasonable excuse on the balance of probabilities. The Crown does not need to disprove it beyond a reasonable doubt. Once the Crown has established all the elements of the offence beyond a reasonable doubt, as I have found above that they have, the defence can assert a reasonable excuse.
[12] I found facts on the section 7 motion which I reproduce here for convenience:
[4] … Shortly after this he is taken to the breath room and refuses to provide a breath sample into the approved instrument when it is presented to him. He tells the presenting officer, who provides him with several opportunities, that he will not provide a sample because he was not drinking and he was not driving. At no time does he say that he will refuse to provide a sample because of his treatment in the attempt to take off his ring. He does make a reference to the officer who accused him of making a threat, saying that he is a hothead and will have a short career.
The fact he believed he did not have to provide a sample because he was not drinking and he was not driving is not a reasonable excuse. There must be a nexus between the police conduct and the refusal to take the test. His words to the breathalyzer technician are the true reason he refused and cannot, at law, amount to a reasonable excuse. His evidence that an equal reason for refusing was the conduct of the police in cuffing him, giving him a somewhat rough ride to the station and trying to take off his ring by force were not the expressed reason to the breathalyzer technician for the refusal and I reject his evidence on this point. I accept he was angered by the attempt to take his ring but I do not believe that is why he refused. He refused out of principle, his belief that he need not submit to a demand because, in his mind, he was not impaired and he was not actually operating the motor vehicle when the police found him. This mistake of law is not a reasonable excuse.
III. Impaired Care or Control
[13] The indicia of impairment I have accepted above are sufficient to make a demand under section 254(3). As indicated earlier in these reasons, reasonable and probable grounds falls somewhere between reasonable suspicion and proof beyond a reasonable doubt of impairment. It does not follow that an impaired conviction is made out on a finding of reasonable and probable grounds. Although I have rejected some of the evidence of the defendant, I am left in doubt by it combined with the indicia of impairment I have found existed on the issue of impairment.
[14] I considered whether the inference available under section 258(3), in combination with indicia of impairment I have found to exist, would yield proof beyond a reasonable doubt. In Regina v. Padda, (2003) O.J. # 5502 (O.C.J.), Justice Duncan noted at paragraph 35, "The inference may be drawn unless there is something in the evidence indicating that it would be inappropriate to do so. An example might be where the defendant has some other reason for refusing, though that reason is not a recognized lawful excuse". In this case I have accepted that the defendant refused to provide a sample because he believed, on principle, that he was not impaired and that he need not provide a sample because he was not driving when the police found him. I find it is inappropriate to draw the inference that he refused to provide a sample because he was conscious that the results would reveal his guilt in these circumstances, so I decline to do so.
[15] A strong odour of alcohol on the breath, red and glossy eyes, an explained stumble getting out of the car, sealed alcohol within reach and an admission of drinking "a few" against the backdrop of the defendant's testimony that the alcohol he consumed that day was consumed almost six hours before he was investigated by the police does not convince me beyond a reasonable doubt that his ability to operate a motor vehicle was impaired.
[16] I find the defendant guilty of refusing to provide a breathalyzer sample and not guilty of care or control of a motor vehicle while impaired by alcohol.
Released: April 16, 2018
Justice Anthony F. Leitch