Court File and Parties

Ontario Court of Justice

Date: 2018-06-01

Court File No.: Oshawa 2811-998-17-33908-00

Between:

Her Majesty the Queen

— and —

Bryan Gunness

Before: Justice M.S. Block

Heard on: February 3, 2018 and March 2, 2018

Reasons for Judgment released on: June 1, 2018

Counsel

Nenad Trbojevic — counsel for the Crown

Thomas Hicks — counsel for the defendant Bryan Gunness

Judgment

BLOCK J.:

[1] Bryan Gunness is charged that, on or about March 12, 2017, he drove his motor vehicle with excess blood alcohol, contrary to s. 253(1)(a) of the Criminal Code. The Crown called PC Boodram, the arresting officer. The certificate of a qualified technician was introduced as Exhibit 1 at trial. It disclosed readings of 160 mgs alcohol per 100 ml blood at 3:55am and 150 mgs alcohol per 100 ml blood at 4:17am. The defendant did not testify.

[2] Mr. Thomas Hicks is counsel for Mr. Gunness. With his typical professionalism, he narrowed the scope of controversy to the two issues which he contends prevent the reception of the certificate as evidence of Mr. Gunness' blood alcohol concentration at the time of driving.

[3] The first issue deals with the impact of the Daylight Savings Time (DST) adjustment on the morning of these events. The time of the traffic stop which led to the arrest of the defendant was 1:22am. The time of the first Intoxilyzer test was 3:55am. A significant development in the interval was the onset of DST. If unexplained, the 2 hour and 33 minute apparent gap would forestall the Crown from relying on the presumption of identity codified in s. 258(1)(c).

[4] Mr. Hicks contends that the Crown cannot explain the apparent gap in the absence of direct evidence that the recorded time of the stop was consistent with DST not yet having commenced.

[5] PC Boodram testified that he was aware that DST commenced at 2:00am that morning. I could take judicial notice of that notorious fact. The evidence is clear that he applied the onset of DST to all of the time values he recorded after 2:00am.

[6] There is no evidence that PC Boodram erroneously anticipated the DST adjustment when he recorded the time of the traffic stop. However there is evidence to explain the apparent 1 hour and 15 minute gap between Mr. Gunness' arrival at the station at 1:55am and the call to Mr. Hicks at 3:10am. PC Boodram explained that the time of arrival at division indicated that the DST adjustment had not yet occurred. The call to counsel reflected the one hour leap forward that took place at 2:00am. The actual gap was 15 minutes.

[7] This evidence requires the court to conclude that the first test was 1 hour and 33 minutes after the traffic stop of the defendant by PC Boodram. This is a readily available inference based on the direct and unchallenged evidence that the constable was aware of, and acted on, the intervening effect of the hour advancement at 2:00am.

[8] The second issue was whether the defendant's Charter s. 8 right to be free from unreasonable search and seizure was breached.

[9] PC Boodram stopped the defendant for speeding at 1:22am. The constable noted that the defendant had considerable difficulty producing the usual documents. He fumbled them. He had difficulty comprehending instructions. His speech was slurred. His eyes were glossy.

[10] Mr. Gunness denied the consumption of alcohol and PC Boodram did not detect the smell of alcoholic beverages coming from him.

[11] PC Boodram made a demand pursuant to s. 254(2)(b) and called for an ASD to be brought to the scene. Asked by Mr. Trbojevic for the conclusion that led to this step, PC Boodram responded that he thought the defendant might be impaired. When asked by what, he responded that the defendant could have been impaired by alcohol.

[12] Under cross-examination, PC Boodram told Mr. Hicks that he didn't immediately arrest Mr. Gunness for impairment because the defendant denied consumption. He agreed that he was uncertain of whether alcohol or drug consumption led to Mr. Gunness' condition.

[13] Does PC Boodram's uncertainty about the cause of the suspected impairment undermine the basis for the demand for an ASD sample pursuant to s. 254(2)(b)?

[14] Section 254(2) of the Criminal Code reads thus:

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:

(a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and

(b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

[15] This is an unusual issue. I am unaware of any authorities directly on point. PC Boodram's belief that Mr. Gunness might be impaired was based on his observation of multiple indicia of impairment. His uncertainty whether that impairment was caused by alcohol or drugs was sufficient to crystallize the reasonable suspicion that the defendant had alcohol or a drug in his body contemplated in the language of s. 254(2)(b) and appropriately triggered the ASD demand.

[16] PC Boodram could have had recourse to s. 254(3.1):

If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under paragraph 253(1)(a) as a result of the consumption of a drug or of a combination of alcohol and a drug, the peace officer may, by demand made as soon as practicable, require the person to submit, as soon as practicable, to an evaluation conducted by an evaluating officer to determine whether the person's ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose. (My emphasis)

[17] The language of the section is permissive. PC Boodram's concern did not require that he impose on the detainee the more onerous provisions of s. 254(3.1).

[18] I find no breach of the Charter. I am satisfied beyond a reasonable doubt that Mr. Gunness operated his motor vehicle with an excessive blood alcohol level as charged.

Released: June 1, 2018

Signed: Justice M.S. Block