Court Information
Ontario Court of Justice
Date: 2018-01-22
Northwest Region, Thunder Bay
Information #170706
Parties
Between:
Her Majesty the Queen
— and —
Curtis Hildebrandt
Judicial Officer and Counsel
Before: Justice E.A. Burton
Heard on: 5 January 2018
Reasons for Judgment released on: 22 January 2018
Counsel:
- Ms. Van Kessel — counsel for the Crown
- Mr. Labine — counsel for the defendant Mr. Hildebrandt
Reasons for Judgment
BURTON J.:
Introduction
[1] Curtis Hildebrandt is charged with driving with more than the legal limit of alcohol in his blood on the evening of 24 February 2017. The defence argues that PC Bortolin did not have reasonable grounds to pull Mr. Hildebrandt over, and therefore arbitrarily detained him. It is also argued that PC Bortolin did not have sufficient grounds to make a roadside screening demand. The trial consisted of a Charter voir dire on these points, alleging breaches of sections 7, 9 and 8, and my ruling on the voir dire will be dispositive of the trial.
Facts
[2] At 2341hrs on 24 February 2017, PC Bortolin of the Ontario Provincial Police was heading westbound in his OPP SUV cruiser in the centre lane on the Thunder Bay Expressway, between the Balsam Street intersection and Red River Road. Traffic was light. The only other vehicle on the road at that moment was eastbound in the centre lane, coming towards him. As it approached, it flashed its highbeams at him. Bortolin turned his cruiser around, followed the vehicle left onto Balsam, then left onto Wardrope where he pulled it over using his cruiser lights. Bortolin approached the car, an Audi 5, and noted that the sunroof was open. He spoke to the male driver through the open driver's window, noted that he had red eyes, and detected an odour of alcohol on the driver's breath. The driver was later identified with valid photo ID as Curtis Hildebrandt. PC Bortolin asked Mr. Hildebrandt a couple of times whether he had been drinking, and Mr. Hildebrandt replied 'no'. Mr. Hildebrandt says there was a brief discussion about highbeams – Bortolin asked why Hildebrandt had flashed him, and was told it was because Bortolin's highbeams were on. PC Bortolin testified that after detecting the odour of alcohol on Mr. Hildebrandt's breath, he made a demand for a roadside screening test, and he had a recently-calibrated device with him. Mr. Hildebrandt complied and registered a 'fail' at 2346hrs. He was arrested for the offence before the court, given his rights and cautions, taken to the OPP detachment, and provided two samples of his breath to a qualified technician, with readings of .150mg% and .140mg%. I was never told the times of those samples, but the breath technician had completed them by 0120hrs and I am advised that the times are not in issue. The breath technician did not testify, but PC Bortolin read from his report that the technician did not detect the odour of alcohol from Mr. Hildebrandt.
[3] I will deal with the issues of arbitrary detention and grounds for the demand separately.
Issue 1: Arbitrary Detention
[4] Did PC Bortolin have valid grounds to pull Mr. Hildebrant's vehicle over, or was it an arbitrary stop?
[5] Section 168 of Highway Traffic Act makes it an offence to use highbeams within 150m of another driver. There are no exceptions in the section for warning flashes. If PC Bortolin had reasonable grounds to believe that this offence had just been committed, he was entitled to pull the offending vehicle over. I do not have to be satisfied beyond a reasonable doubt that this offence was in fact committed – that would be an issue for another court at another time – the question is the state of PC Bortolin's belief at the time.
[6] PC Bortolin testified that as he travelled westbound, the approaching vehicle turned on its highbeams, once, when it was 'quite close', perhaps within 3-4 car lengths. He did not see the highbeams shut down again, they were still on when the car passed him. He didn't know what was going on in the other car, but testified that the vehicles were so close it may have even been a situation where the other driver simply turned his lights on too soon as they were passing. PC Bortolin did not believe he had his own highbeams on, as he does not generally drive with them on, but he did not make a note of the fact and could not be 100% certain.
[7] It was suggested that PC Bortolin was vague about whether 'flicking' the highbeams as a warning is an offence. He was not at all vague on whether he believed it was an offence, although he did say it was a common practice, and if there appeared to be a reason for it he would not necessarily pull a driver over for it. PC Bortolin agreed that other than the highbeams there were no other issues with Mr. Hildebrandt's driving.
[8] It has also been suggested that PC Bortolin was being evasive in cross examination, particularly about the significance of the distance between the two vehicles. I did not find him to be evasive, I found him to be genuinely confused by the questioning. I found the wording of some questions rather confusing myself at times, even with the benefit of reading the Charter materials in advance. I found that PC Bortolin listened carefully, was respectful and appropriate, was not argumentative, and once he was on the same page with counsel, was quite willing to answer whatever was put to him. I also do not put any significance on the fact that his notes did not contain much detail about the s168 offence, as the traffic stop almost immediately turned into a more significant criminal investigation of drinking and driving. At trial, PC Bortolin was uncertain of the 150m distance requirement under s168, he said he would have to look it up. He believed the vehicles were 3-4 car lengths apart when the beams came on. The accused testified he may have been as close as 100m with his highbeams on, and his wife guesstimated that the vehicles were 300-400m apart on the highway when she first noticed the other vehicle and before Mr. Hildebrandt flashed his lights.
[9] Because the accused has testified, I must be mindful of the Supreme Court of Canada's directions in R v W.D. when I assess the totality of the evidence. At the end of the day, of course, it's not about who I believe to be telling the truth, it's about what the evidence establishes, and whether the Crown has proven its case beyond a reasonable doubt. However, this is a rather unusual circumstance where I don't find anyone to be deliberately untruthful. Each witness testified to what he or she remembered, from his or her own perspective and perceptions. Given the margin of human error, I do not find their stories to be contradictory. Mr. Hildebrandt truly believed that PC Bortolin had his highbeams on. Maybe he did or maybe he didn't – it doesn't matter, because flashing his own highbeams in response is not an exception under s168.
[10] Mr. Hildebrandt's highbeams were admittedly on as he approached PC Bortolin's vehicle, and the preponderance of the evidence suggests that he was well within 150m for at least some of the flashing, which is an offence under s168 of the HTA. Again, I do not have to be convinced beyond a reasonable doubt in this trial that that offence was committed, I simply have to assess whether PC Bortolin had reasonable grounds to believe it was, and I find that he had sufficient grounds.
[11] As part of the arbitrary detention argument, the defence contended that the flashing of the highbeams did not provide grounds to pull Mr. Hildebrandt over, and that the stop was therefore totally arbitrary, and therefore forbidden. I have read sections 48 and 216 of the HTA, as well as the relevant caselaw. In particular, a review of R v Farquharson et al, 2014 ONSC 6641, confirms my understanding that totally random stops for highway safety purposes are in fact authorized by law. However, I find that reliance on those sections is unnecessary, as PC Bortolin had grounds to stop Mr. Hildebrandt for the apparent s. 168 infraction in any event, and the traffic stop was therefore not arbitrary.
Issue 2: Grounds for Roadside Screening Demand
[12] Did PC Bortolin have grounds to make the demand for a roadside breath sample?
[13] Once the vehicle was pulled over, PC Bortolin was entitled, indeed obliged, to approach the driver to discuss what was going on. His evidence was clear in chief, in cross, and in affidavit that he detected an odour of alcohol coming from Mr. Hildebrant's breath. He testified that his practice is to put himself somewhat behind the driver so that the driver has to turn towards him to talk, meaning that the driver's face would be directed towards him and away from the interior of the vehicle. PC Bortolin was not shaken in cross about from where he detected the odour coming. Mr. Hildebrandt thinks they were 1-2' away from each other, and agreed that they were certainly close enough to talk and exchange documents.
[14] The law is quite clear that the odour of alcohol on a driver's breath, alone, can give rise to a reasonable suspicion that a driver has alcohol in his body. The concern of the officer at this point is not whether the driver was impaired, or over 80, it is simply whether he had alcohol in his body and had been operating the motor vehicle in the preceding 3 hours:
- R v Lindsay, [1999] OJ No 870 (CA)
- R v Gilroy, 1987 ABCA 185, [1987] AJ No 822 (CA)
- MacPherson, [2000] OJ No 4777 (CA)
[15] It was suggested that PC Bortolin ought to have investigated further to discount the possibility of the odour coming from the passenger or elsewhere in the vehicle. Since his testimony was that the odour was coming from the driver's breath, this process of elimination was not legally necessary. Even if PC Bortolin had a suspicion about the passenger, that wouldn't necessarily render his suspicion about the driver unreasonable, it would simply give him reasonable suspicion in respect of both occupants. In the words of the Ontario Court of Appeal, "To require the elimination of other possibilities in my view is to misconstrue the meaning of suspicion and to effectively equate it with a standard of reasonable and probable grounds."
[16] I do find it curious that the qualified breath technician did not detect the odour of alcohol on Mr. Hildebrandt roughly an hour later at the detachment, 2-3' away from the accused, but I can only speculate on why that might be as I have no evidence one way or the other. We do know from Mr. Hildebrandt's wife that he was drinking that night, and I find nothing in the evidence to suggest that PC Bortolin was mistaken or inaccurate about when and where he detected the odour he said he did.
[17] There were other minor indicia of possible alcohol consumption, including red eyes, and the fact that the sunroof was open at night late in February. These would not in and of themselves provide reasonable suspicion of alcohol in the driver's body, but they are nonetheless relevant observations. The defence suggests red eyes cannot be considered as an indicia of alcohol consumption because there are so many other possible explanations, but the caselaw is clear that just because there's more than one explanation for a symptom doesn't mean police are precluded from factoring it into their considerations. However, in this case it would be a redundant consideration because the odour alone coming from Mr. Hildebrandt's breath was sufficient to give rise to an objectively and subjectively reasonable suspicion that Mr. Hildebrandt had alcohol in his body.
Conclusion
[18] Based on all of the above, I find that Mr. Hildebrandt was not arbitrarily detained, and that PC Bortolin did have a reasonable suspicion that Mr. Hildebrandt had alcohol in his body while operating his motor vehicle. The Charter application is therefore dismissed, as I find no breach of section 7, 9 or 8, and the Intoxilyzer readings of .140 and .150mg% are admitted into evidence. The evidence from the voir dire is applied to the trial proper. I find that the evidence establishes, beyond a reasonable doubt, that Mr. Hildebrandt was operating his motor vehicle on the evening in question with a blood alcohol concentration above the legal limit, and I convict him of the offence before the court.
Released: 22 January 2018
Signed: Justice E. A. Burton