Court Information

Ontario Court of Justice

Date: 2018-06-20

Court File No.: Niagara Region 998 17 W0125

Parties

Between:

Her Majesty the Queen

— and —

Grant Thomas

Judicial Officer and Counsel

Before: Justice J. De Filippis

Heard on: March 7 – 8 & May 11, 2018

Reasons for Judgment released on: June 20, 2018

Counsel:

• Mr. Morris — counsel for the Crown
• Mr. Fazari — for the defendant

Introduction

[1] On Saturday, January 21, 2017, at approximately 6:02 a.m. police received a report that a motor vehicle had gone off the road at the intersection of Foss Road and Centre Street in the town of Fenwick. The civilian who had called the police encountered the defendant at the scene. Firefighters and paramedics arrived quickly, but the police did not do so until almost one hour later. The defendant was arrested soon after and later charged with the two offences of having care or control of a motor vehicle while his ability to do so was impaired by alcohol and at a time that his blood alcohol level was over the legal limit.

[2] In advance of trial, the defendant filed written argument alleging violations of sections 7, 8, 9, and 10 of the Canadian Charter of Rights and Freedoms and seeks exclusion of evidence pursuant to section 24(2). In the alternative he seeks a stay of proceedings pursuant to section 24(1). At trial he also argued that the Crown failed to prove he was the driver of the motor vehicle or that he operated one while impaired. In addition, it is claimed that the breath samples were not taken pursuant to a valid demand and, in any event, not as soon as practicable. Finally, it is argued that because the Crown has not established the time of the accident, certain statutory presumptions do not apply and the evidence of the toxicologist is compromised.

[3] I heard from eight witnesses called by the Crown. I do not accept the Defence challenges. I find the defendant guilty.

Evidence

[4] At 6 AM, on the day in question, Mr. Dayman came upon a single motor vehicle accident. He saw a man, identified by him to be the defendant, exit the driver's side of the vehicle. The car, a Pontiac Vibe, was across a ditch on the south side of Foss Road. Mr. Dayman testified that the defendant climbed the ditch and "staggered" toward him. He asked the defendant if he was okay, and received "no" as the response. The defendant also declined an offer to have somebody called on his behalf.

[5] Mr. Dayman called 911 as he watched the defendant re-enter his vehicle and try, without success, to reverse it back onto the roadway. While on the telephone, Mr. Dayman saw the defendant leave the motor vehicle and fall as he walked up the ditch. He stood up and went back to the car, saying he wanted to find his cellular phone. The defendant then left the area on foot. Mr. Dayman testified that the defendant appeared to be impaired by alcohol or concussed. Firefighters arrived within five to ten minutes. Mr. Dayman testified that he told one of them "more or less what I've told the court". He saw the firefighter walk away and return soon after with the defendant. Mr. Dayman left the scene, before the arrival of the police.

[6] Mr. Nicholls is a volunteer firefighter for the Town of Pellam. He was called to the scene of this motor vehicle accident and arrived at 6:10 am. He testified that as he drove there, he saw a man walking on the road, nearby. He saw a car across a ditch and learned from Mr. Dayman that the driver had walked away. Assuming that this man was the one he had just seen on the road, he walked toward him. He quickly found that man and confirmed he was not injured and that there were no passengers in the vehicle. He brought him back to the scene. Mr. Nicholls could not identify this man as the defendant.

[7] Mr. Nicholls agreed that when discussing the accident with the man he did not ask or learn the time of the incident. Moreover, although the man said he was in the car when it went off the road, he was not asked nor did he say he was the driver. Mr. Nicholls testified that had the man tried to leave the area, he would have attempted to prevent it so he could be examined by paramedics.

[8] As Mr. Nicholls undertook these activities, Mr. Wierenga and paramedics arrived. Mr. Wierenga is a captain with the fire service. He went to the vehicle to determine if anyone was inside. He found it empty, locked, with the engine off and the running lights still on. He saw Mr. Nichols walking to the scene with a man. The latter refused assistance from the paramedics.

[9] Mr. Wierenga testified that in response to his question about whether there had been anybody else in the motor vehicle, the man said no and added that he had been at a bar in Fonthill and was "cut off" by another car. The captain observed that the man was "chatty", with "slurred speech" and "unsteady". He contacted the police dispatcher to report a single motor vehicle accident and that the "driver is inebriated".

[10] Mr. Wierenga learned from the dispatcher that the police would be delayed in arriving. He reported this to the paramedics and asked them to "take their time" with the man as he is a "drunk driver". He explained that he told the paramedics this because he knew he could not detain the man against his will and would not have stopped him from leaving had he tried to do so. He added that when the police finally arrived, he had a "brief discussion" about these events with them.

[11] PC Blair and PC Wegelin were dispatched to the scene. PC Blair testified that she received information about the accident at 6:31 am and arrived at 6:51 am. She spoke with Mr. Wierenga and saw a man standing near him "in the middle of the road". She identified that man as the defendant. The officer saw a car on the other side of a steep ditch, with its headlights on. She learned from Mr. Wierenga that the defendant had been involved in a single motor vehicle accident. The fire fighter also told her he believed the defendant had consumed alcohol. The officer testified that "based on this information and all [her] observations she "connected [the defendant] to the car on the other side of the ditch".

[12] At 6:58 am, PC Blair introduced herself to the defendant and asked him what had happened and was told by him that two friends had borrowed his mother's car and he had walked out to look for it. He added that he was looking for his cellular phone and wallet. The officer noted that, that apart from police and emergency personnel, there was nobody other than the defendant in this rural area. She also detected the strong odour of odour of alcohol on his breath and observed that he "swayed slightly on the flat and dry road". PC Blair testified that she did not believe the defendant's story about looking for his two friends and arrested him for the impaired charge before me. He was advised of his right to counsel and cautioned. At 7:05 am, the officer "made a breath demand". She testified that the defendant understood the right to counsel, caution, and demand. She added that he said he did not wish to speak to counsel.

[13] The defendant was transported to the District 2 Police Station in Niagara Falls, arriving at 7:44 am. The officer stated that this was the only station with an approved instrument. After parading him before the cell sergeant, he was processed and placed in cells by PC Blair. Duty counsel was called at his request at 7:51 am and the defendant spoke to that person at 7:59 am.

[14] PC Blair conceded that later that day she contacted Mr. Dayman "to confirm he could put [the defendant] behind the wheel of the car". She denied the suggestion this means she did not have reasonable and probable grounds to arrest earlier; the officer testified that she was completing the investigation.

[15] PC Wells is an intoxilyzer technician. He was called to the station to perform breath tests and arrived at 7:49 am. The instrument was ready to do so within three minutes. He received information from PC Blair about the grounds for the arrest. He testified that at 8:21 a.m., the defendant was brought to him. The officer advised him of the right to counsel. The defendant replied that he had spoken to duty counsel and wanted to do so again. This was arranged at 8:22 am.

[16] PC Wells obtained two samples of the defendant's breath. There is no controversy about his qualifications to do so or the integrity of the testing process. At 8:44 am, and again, at 9:06 am, the defendant registered a blood alcohol level of 210 – almost three times the legal limit. The officer testified about his observations of the defendant and opined that his ability to operate a motor vehicle was impaired.

[17] Dr. Woodall is a toxicologist. Her expertise with respect to the absorption and elimination of alcohol in the body is conceded. She testified that she applied the standard assumptions with respect to how alcohol is absorbed in the body as well as the elimination rate to the aforementioned breath tests. The doctor also assumed that the defendant had not consumed alcohol between accident and breath tests. On this basis she calculated as follows: If the accident had occurred at 5 am, the defendant's blood alcohol level would have been between 220 and 280. If it had happened at 6 am, it would have been between 210 and 260. If the accident had occurred at 7 am, the defendant's blood alcohol level would have been between 200 and 240. The doctor opined that with a blood alcohol anywhere in this range, that is, between 200 and 280, the defendant's ability to operate a motor vehicle would be impaired.

Analysis

[18] The defendant must prove his Charter claims on a balance of probabilities. This does not apply to the section 8 motion; it is for the Crown to justify this warrantless search. Of course, the Crown also bears the ultimate burden of proving guilt beyond a reasonable doubt.

[19] This is not a case in which credibility is an issue. That is, while the Defence objects to the conduct of some prosecution witnesses, it is not suggested they were untruthful. I am confident in the reliability of the witnesses. This evidence was clear and consistent. It was not contradicted or undermined.

[20] In oral argument, the Defence conceded that the firefighters in this case were not persons in authority for the purposes of the common law confessions rule. However, it is asserted that they detained the defendant until the police arrived, without providing him with the right to counsel, and that, as such, statements made by him are inadmissible. Leaving aside the fact there is nothing to suggest the firefighters were aware of the duties encompassed by the right to counsel, this argument could only succeed if the firefighters acted as agents of the police or the state generally. They did not. Mr. Nicholls said he would try to prevent the defendant from leaving because of his concern about medical care. Mr. Wierenga is the one who wanted to keep the defendant on scene for police investigative purposes but he understood he could not compel him to do so. In any event, there is no suggestion the police directed the firefighters or that the defendant attempted to depart. Section 10(b) of the Charter was not engaged at the scene.

[21] The Defence abandoned its section 10(b) claim with respect to "events at the police station" and made no further submissions about section 7 of the Charter. Indeed, in oral argument, Defence counsel said that, having regard to the testimony at trial, sections 8 and 9 are the "real issues". Specifically, it is asserted that PC Blair did not have reasonable and probable grounds to arrest and that there is no evidence of a lawful breath demand.

[22] The Supreme Court of Canada has held that a warrantless arrest or search is justified if an officer subjectively believes s/he has reasonable and probable grounds to do so and this belief is objectively reasonable: R v Storrey, 1990 1 SCR 241. In this regard, the Court of Appeal for Ontario has held as follows, in R v Golub, 1997 OJ 3097 at para 18:

The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant.

[23] The same court has also ruled that there "is no necessity that the defendant be in a state of extreme intoxication before the officer has reasonable grounds to arrest." The test is whether, objectively, "there was reasonable and probable grounds to believe the suspect's ability to drive was even slightly impaired by the consumption of alcohol." R v Bush, 2010 ONCA 554 at para 47

[24] The Defence position is that PC Blair conducted a minimal investigation before the arrest: She spoke briefly to Mr. Wierenga, observed the motor vehicle and detected indicia of intoxication from the defendant. This is correct. However, there was little more that needed to be done by the officer.

[25] Mr. Wierenga told PC Blair that the defendant was drunk and the driver of the vehicle. The latter had not been specifically admitted by the defendant, but the firefighter reasonably inferred this to be the case from what he observed and was told. PC Blair was entitled to rely on this information. In addition, the officer observed a motor vehicle that had obviously gone off the road and landed beyond the ditch. The defendant was the only person in this rural area, other than police and emergency personnel. The officer noted the odour of alcohol from the defendant's breath and that he swayed slightly. In these circumstances, she was justified in believing the defendant to have been the driver and that his ability to do so was impaired by alcohol. This conclusion is objectively reasonable.

[26] I am not troubled by the fact that PC Blair later contacted the civilian witness to confirm the defendant had been the driver. An investigation does not end on arrest; in most cases, it begins at this point. The officer's duties included collecting evidence to support the charge.

[27] The Defence submits that there is no evidence the defendant is the driver of the motor vehicle because he did not specifically admit this in conversation with the firefighters. There is no merit to this submission. This is implicit in his statement that he had been at a bar and the car went off the road because it was "cut off". In any event, Mr. Dayman saw the defendant exit the driver's door of that vehicle, re-enter it, and attempt to drive away from the scene. Moreover, Mr. Dayman's evidence means it is irrelevant that the time of the accident is unknown. What is clear is that the defendant was in care and control of the motor vehicle at about 6 am.

[28] The Defence argues that there is no evidence of a lawful demand because PC Blair testified that after arresting the defendant she "made a breath demand". In cases such as these, there is usually testimony about a particular form of demand for the approved screening device and/or the approved instrument. Those words are not in evidence before me. I am not troubled by this.

[29] As noted by Justice Hill in R v Ghebretatiyos, [2000] O.J. No. 4982, Justice Hill:

No particular words are necessary to make a breath sample demand. As observed by Culliton C.J.S. in Regina v. Ackerman (1972), 6 C.C.C.(2d) 425 (Sask. C.A.) at 427:

In my opinion, no particular words are necessary to make a demand under this section. The demand, if made in popular language or in the words of the section, or in any other words that are such that convey to the person that the demand is made pursuant to the section, is a lawful demand. In determining whether or not the words used were such as to convey to the person the nature of the demand consideration can properly be given to the surrounding circumstances….

[30] PC Blair arrested the defendant being in care and control of a motor vehicle while his ability to do so was impaired by alcohol. She advised him of the right to counsel and cautioned him. The defendant said he understood what was said to him. PC Blair testified that she then "made a breath demand" and, again, the defendant said he understood. The officer then made arrangements for an intoxilyzer technician to meet her at the police station and transported the defendant to that place. PC Wells testified that when he received custody of the defendant in the "breath room", he advised the defendant of the right to counsel and facilitated a second telephone call to duty counsel. Afterward, he "read a breath demand" and demonstrated how to provide a sample of breath into the approved instrument. I have no doubt what was demanded by the officers and understood by the defendant; namely a demand to provide samples of breath into the approved instrument.

[31] The Defence claims the breath samples were not taken as soon as practical. I disagree. The phrase "as soon as practicable" means "nothing more than that the tests were taken within a reasonable prompt time under the circumstances". This is determined by asking whether the police acted reasonably.

[32] In this case the defendant was seen in the driver's seat of the motor vehicle at about 6 am. The police arrived almost one hour later. He was arrested and subjected to a breath demand at 7:05 am. He was transported to the police station in Niagara Falls, arriving at 7:44 am. The first sample was taken one hour later. During this time he was paraded before the station sergeant, spoke to duty counsel twice, and meet with the intoxilyzer technician. In all the circumstances, the delay is reasonable. However, it is clear the samples were not taken within two hours of the time that Mr. Dayman saw the defendant attempting to drive the car. Accordingly, the Crown cannot take advantage of the presumptions set out in section 258(1) of the Criminal Code. This does not matter because of the testimony of the toxicologist. This evidence establishes that at 6 am, the defendant was in care and control of a motor vehicle at a time that his blood alcohol level exceeded the legal limit.

[33] I find that the Crown has also proven that the defendant was in care and control of that motor vehicle while his ability to do so was impaired by alcohol. Quite apart from the opinion of the toxicologist on point, this is established by the observations of all the Crown witnesses. Their testimony leaves no doubt about the matter. The defendant operated a motor vehicle that went off the road. He was seen to stagger and fall down as he walked away from the vehicle. He emitted the odour of alcohol from his breath. Alcohol consumption is also evidenced by his flushed face and watery eyes. It may not be known when the accident occurred but it is clear the defendant was in care and control of the car at 6 am. Moreover, on the evidence before me, the only reasonable inference is that he was impaired, as that word has been defined in R v Stellato (1993), 78 C.C.C. (3d) 380 (S.C.C.).

Released: June 20, 2018

Signed: Justice J. De Filippis