Ontario Court of Justice

Date: August 22, 2018

Between:

Her Majesty the Queen

— AND —

Carlos Rodriguez Melendez

Before: Justice B. Knazan

Reasons for Judgment released on: August 22, 2018

Counsel

L. Guzzo and C. Valarezo ................................................................ counsel for the Crown

D. Burke .................................... counsel for the accused, Carlos Rodriguez Melendez

KNAZAN J.:

Charges and Overview

[1] Mr. Rodriguez Melendez is charged with operating a motor vehicle while his ability to do so was impaired by alcohol and with operating a motor vehicle while his blood alcohol content was greater than 80 mg. of alcohol per 100 ml. of blood. He was involved in a motor vehicle accident and later provided a breath sample that does establish, not only that his blood alcohol level did exceed 80 mg. of alcohol per 100 ml. of blood, but that his ability to operate a motor vehicle would have been impaired by the amount of alcohol that he had consumed.

[2] This case turns on what information a police officer needs in order to suspect that someone has driven a car, so as to support a demand to provide a sample of breath into an approved screening device.

[3] Mr. Rodriguez Melendez seeks to exclude the results of the breath tests. He submits that the officer who demanded that he provide a sample into an approved screening device could not have suspected that he had been operating a motor vehicle with alcohol in his body, without violating his right under s. 7 of the Charter not to be deprived of his liberty except in accordance with the principles of fundamental justice. His position is that the officer could only have suspected that he was the driver and had alcohol in his body as a result of Mr. Rodriguez Melendez telling him in answer to the officer's question and that that was a compelled statement under the Highway Traffic Act, as he was required to remain at the scene and provide information. As there was no basis for the demand, and as the results of the failed screening test provided the grounds for the arrest and the demand for a breath sample into the Intoxilyzer, the Intoxilyzer results were obtained in violation of his right under s.8 of the Charter.

The Basis of the Officer's Suspicion

[4] Everything depends on whether Officer Thomas, who demanded that Mr. Rodriguez Melendez provide a sample of his breath into an approved screening device, had reasonable grounds to suspect that Mr. Rodriguez Melendez had alcohol in his body and that he had within the three hours preceding 9:35 a.m. on December 11, 2016 operated a motor vehicle. If he had those grounds there was no unreasonable search.

[5] These are the events that led up to Officer Thomas making the demand. On December 11, 2016, Mr. Rodriguez Melendez was driving his employer's vehicle near Albion Road and Weston Road when it became airborne, flipped over and landed on its side with the passenger door on the ground.

[6] Kirk Hawkins was driving in the same direction. He stopped to make sure that everyone was alright and saw someone trying to open the door on the driver's side. He assumed that this was the driver because he was trying to get out the driver's side. He did not even know that there was a passenger but then later saw the person that he assumed was the driver trying to help a passenger. The person who he assumed to be the driver was in fact driving.

[7] The police arrived and split up the investigation as there were other witnesses apart from Mr. Hawkins. Thomas spoke to Saman Shaliman. Eventually, he spoke to Mr. Hawkins who pointed out Mr. Rodriguez Melendez as the driver. Hawkins told Thomas that he, Hawkins, had assisted in getting the occupants out of the car.

[8] Thomas approached Mr. Rodriguez Melendez and asked him if he was driving and Mr. Rodriguez Melendez answered yes. He asked him to step into the police car because he wanted to talk to him. About 15 minutes later he asked him if he had been drinking alcohol. Mr. Rodriguez Melendez answered that he had three beers and said it was last night. Thomas clarified that by last night, Rodriguez Melendez meant into that very morning. While talking to him he smelled a distinct odour of an alcoholic beverage. At 9:37 a.m. he formed a suspicion that he had been consuming an alcoholic beverage. He then made a proper demand for a sample of Mr. Rodriguez Melendez's breath into an approved screening device. No issue is taken with Thomas asking Rodriguez Melendez to step into the police car.

The Application to Exclude the Statements under s. 7 of the Charter

[9] It is obvious that Thomas had a subjective suspicion that Mr. Rodriguez Melendez had both been driving and that he had alcohol in his body. Objectively, the suspicion that he was driving came from his saying that he was the driver, and the suspicion that he had alcohol in his body came from both his statement that he had had three beers over the course of the night and morning, and smelling the alcohol on his breath. If the two statements, that he was driving and that he had had three beers, were obtained in violation of his right under s. 7 because he was statutorily compelled to speak to the police, then they must be excluded from the objective grounds.

[10] Mr. Rodriguez Melendez testified that he recalled from qualifying for his driver's license 13 years previously that anyone involved in an accident where the damage was greater than $5,000.00 had a duty to report it to the police. He agreed that he briefly left the scene to urinate and did not approach any police officer to report the accident but that it was Thomas who approached him to ask him about the accident. He testified that he answered the officer's questions because he believed that he had a duty to.

[11] The law governing statements compelled under highway traffic legislation is that stated by Justice Iacobucci in R. v. White, [1999] 2 S.C.R. 417, at paragraph 75:

whether, at the time the accident was reported by the driver, the driver gave the report on the basis of an honest and reasonably held belief that he or she was required by law to report the accident to the person whom the report was given.

In order to qualify as a "report", the information must come within the requirement to "furnish him or her (the nearest police officer) with the information concerning the accident as may be required by the officer under subsection (3). That information set out in subsection (3) includes the particulars of the accident, the persons involved and any other information necessary to complete a written report.

[12] Justice Ellies deals with all of this thoroughly in R. v. Wenham, 2013 ONSC 7431, [2013] O.J. No. 5535. Who was driving clearly comes within "persons involved" and whether the driver was drinking comes within "any other information."

[13] The requirement to report to the police is common knowledge. There is really no reason to disbelieve Mr. Rodriguez Melendez when he says that he remembered that from 13 years ago. It is true that he did not approach the officer but, when approached, he was still informally advising the police of the accident and answering questions about the accident and that is all that is "required to attract the protection against self-incrimination afforded by the decision in White,…" as Justice Ellies puts it in Wenham. Therefore, I would allow this branch of Mr. Rodriguez Melendez's application and exclude the statements that he was driving and that he had had three beers during a period that included the morning, under s. 24(1) of the Charter, as directed by White.

[14] But this does not resolve Mr. Rodriguez Melendez's application to exclude his Intoxilyzer readings. It only leads to the main issue in the case and that is whether Thomas had grounds to suspect both that Mr. Rodriguez Melendez was driving and that he had alcohol in his body, without resort to the statements.

Reasonably Suspects

[15] The word "suspects" has a plain meaning and hardly requires interpretation. However, section 254 requires that the officer have reasonable grounds to suspect and the words "reasonable grounds" are the subject of much interpretation. The fact that "reasonable grounds" are most often explained in a circular fashion by resorting to the word "reasonable" demonstrates just how much what is reasonable depends on the circumstances. Thus in R. v. Storrey (1990), 53 C.C.C. 316, Justice Cory explained reasonable grounds as:

"That is to say a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest."

[16] And in Roberge v. The Queen (1983), 4 C.C.C. (3d) 304, Justice Lamer equated reasonable grounds to believe that an offence had been committed to "(the accused) would have appeared to, a reasonable person, placed in the same circumstances, (to be committing that offence)".

[17] Just how context dependent the concept of reasonable is was stated by Justice Gonthier in R. v. Jacques (1996), S.C.R., paragraph 20, where he relied on the following telescoping quotations:

"Contextual analysis of Charter rights and freedoms is well established in this Court. As L'Heureux-Dubé J. observed, concurring, in R. v. Bernshaw, [1995] 1 S.C.R. 254, at pp. 304-6, in which the appellant challenged the admissibility of breathalyser evidence under s. 8 of the Charter:

Even under the Charter, "reasonable and probable grounds" can mean different things in different contexts. This Court has previously referred to the standard of "reasonable and probable grounds" as one of "credibly-based probability": Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 167; Baron v. Canada, [1993] 1 S.C.R. 416, at p. 446, and, on another occasion, of "reasonable probability" or "reasonable belief": R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1166 (per Wilson J.). These different formulations are, themselves, unhelpful for the purpose of deciding what "reasonable and probable grounds" mean in the case at bar. What is more important is an examination of the context in which that phrase, and the values underlying that phrase, arise.

Notably, this Court has recognized on numerous occasions that what constitutes "reasonableness" and what constitutes a "reasonable expectation of privacy" may vary from one context to the other, depending upon the competing considerations at the heart of the issue: Hunter v. Southam Inc., supra, at p. 155; R. v. Simmons, [1988] 2 S.C.R. 495, at pp. 526-28. "[T]he standard of review of what is 'reasonable' in a given context must be flexible if it is to be realistic and meaningful": McKinlay Transport Ltd., supra, at p. 645 (per Wilson J.). [Emphasis added.]"

[18] Jacques is also helpful regarding the combination of reasonable grounds and suspicion. There, under s. 99(1) of the Customs Act, the officer could stop a vehicle if he had reasonable grounds to suspect that it might be involved in a violation of the Act. The officer was three miles from an uncontrolled border crossing and had received information that a vehicle had entered Canada from there. He had no description of the vehicle and when he saw two vehicles about that distance away from the border crossing in terms of the time it would have taken to arrive to where he was, he stopped one of them. Furthermore, the officer mistakenly believed that entering Canada at an uncontrolled border crossing was illegal when in fact it was not. While two of the judges strongly dissented, the majority found that the officer had reasonable grounds to suspect that the vehicle might have been involved in an offence.

[19] This shows, if nothing else, that reasonable grounds to suspect is not a particularly onerous state of mind for an officer to reach.

[20] The Ontario Court of Appeal has more recently explained that reasonable grounds to suspect involves possibilities not probabilities: R. v. Schouten, 2016 ONCA 872, at paragraph 27.

Officer Thomas's Reasonable Grounds for Suspicion

[21] Having excluded Mr. Rodriguez Melendez's statements to Thomas that he was the driver and that he had had three beers, the next step is to see whether grounds still existed even with the information that the officer should not have had removed from the analysis.

[22] There are two elements to an officer's right to demand that someone provide a sample of breath into an approved screening device; that the accused was operating a motor vehicle within the previous three hours and that he had alcohol in his body. In this case, the latter is not in issue – it is established that smelling alcohol on someone's breath provides a reasonable suspicion that there is alcohol in their body: R. v. Lindsay, [1999] O.J. No. 870.

[23] The missing reasonable suspicion on which Mr. Rodriguez Melendez relies to support his motion to exclude evidence, is that he was driving.

[24] This submission is based on the assumptions that Hawkins made at the time that Mr. Rodriguez Melendez was the driver because he was the closest to the driver's door. But the overall context, so crucial to any determination of reasonable grounds is that Thomas had information that had been conveyed to the other officer and from Mr. Hawkins that Mr. Rodriguez Melendez was the driver. And he had asked Hawkins if he could identify the driver after Hawkins explained that he had helped the occupants exit the vehicle. That Hawkins was making assumptions is irrelevant to the analysis. One could even say that Hawkins had a reasonable suspicion as to who the driver was given Mr. Rodriguez Melendez's position in the car and that he passed it on to Thomas. But that is not necessary. Thomas was a police officer gathering information from witnesses and it was reasonable for him to suspect that the person, who a witness who saw the accident identified as the driver, was the driver, given the low threshold that reasonable suspicion entails.

[25] Thus there were objective grounds to make the demand even without Mr. Rodriguez Melendez's statements that I have excluded. The demand was legal, the second demand was a reasonable search based on the failure of the first test and there is no violation of s. 8 of the Charter.

[26] Therefore the Intoxilyzer results are admitted into evidence.

Released: August 22, 2018

Brent Knazan

Ontario Court of Justice