Court File and Parties

Court File No.: Orangeville 16-1262 Date: September 4, 2018 Ontario Court of Justice Central West Region

Between: Her Majesty the Queen — and — Giovanni McDonald

Before: Justice Richard H.K. Schwarzl

Heard on: April 18, May 17, May 28, 2018

Reasons released on: September 4, 2018

Counsel:

• Marie Balogh, for the Crown
• Carlos Rippell, for the Defendant

SCHWARZL, J.:

1.0: INTRODUCTION

[1] On October 10, 2016 the police responded to a complaint of bad driving, the result of which is that the Defendant, Mr. Giovanni McDonald, was pulled over and investigated. The police arrested him for impaired driving, then took him to a police station where the results of his breath tests caused him to be further charged with driving with excess blood alcohol. The Defendant pled not guilty to both charges and a trial was held.

[2] Two general issues arose during the trial. The first is whether the prosecution has proven beyond a reasonable doubt that the Defendant was driving while his ability to do so was impaired by the consumption of alcohol. The second is whether the breath test results ought to be excluded due to alleged breaches of several of the Defendant's constitutional rights guaranteed by the Canadian Charter of Rights and Freedoms (the "Charter"). At trial, the Crown led evidence from three witnesses. The defence called no evidence on the trial or on the Charter applications.

2.0: ISSUES AND ANALYSIS

2.1: Was the Defendant impaired by alcohol whilst driving?

2.1.1: Positions of the Parties

[3] The Crown submits that when assessing the evidence as a whole it has been proven to the criminal standard that the ability of the Defendant to operate a motor vehicle was impaired by the consumption of alcohol. They base this submission on the observations of driving made by the independent witness, Mr. Candelaria, and by the evidence of the investigating officer, P.C. Mask, of both driving and of the Defendant after he was stopped.

[4] The defence submits that the same evidence raises a reasonable doubt regarding impairment. They submit that the evidence may show the driving was dangerous, but it does not prove that the driver was impaired by alcohol. In addition, the defence submits that the breath room video and the evidence of the qualified intoxilyzer technician, P.C. Kolodziechuk, discloses no evidence of intoxication and thus contradicts the evidence of the investigating officer.

2.1.2: Applicable Legal Principles

[5] It is impairment of the ability to operate a motor vehicle which must be proven, and not just "impairment" generally: R. v. Andrews (1996), 1996 ABCA 23, 104 C.C.C. (3d) 392 (Alta. C.A.), leave to appeal refused [1996] S.C.C.A. No. 115, 106 C.C.C. (3d) vi (S.C.C.).

[6] Any degree of impairment ranging from slight to great, establishes the offence: R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont. C.A.) at p. 384; aff'd R. v. Stellato (1994), 90 C.C.C. (3d) 160 (S.C.C.). Slight impairment to drive relates to a reduced ability, in some measure, to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, regard for the rules of the road, and the like: R. v. Censoni, [2001] O.J. No 5189 (S.C.J.) at para. 4; R. v. Michitsch, [2004] O.J. No. 1296 (S.C.J.).

[7] However, bad driving coupled with the absence of physical signs of intoxication other than the odour of alcohol might not give rise to impairment to the slightest degree: R. v. Jones, [2004] A.J. No.735 (C.A.); R. v. Singh, [1997] O.J. No. 1164 (Ont. Ct. G.D.); R. v. MacCoubrey, [2015] O.J. No. 2820 (S.C.J.) at para. 27.

[8] Impairment is still proven if alcohol is only a contributing cause to the impairment where effects of fatigue, medication, paint fumes, or jet lag are also present: R. v. Bartello, [1997] O.J. No. 2226 (C.A.).

[9] Videotape of actions of a detainee at the scene, in the police car, or at the police station can be compared to other evidence to assess whether or not the person is impaired: R. v. Brijeski, [1999] O.J. No. 736 (C.A.); R. v. Singh, supra, at para. 6.

2.1.3: Legal Principles Applied to this case

[10] Upon assessing the evidence as a whole I am persuaded beyond a reasonable doubt that the ability of the Defendant to operate a motor vehicle was impaired by the consumption of alcohol. Mr. Candelaria's evidence was reliable, credible, and painted a picture of bad judgment and poor coordination over the course of the 30-plus minutes he was following the Defendant.

[11] P.C. Mask's evidence was also credible and reliable. The fact the officer told the Defendant that if he passed the breath tests at the station he would be released without charge does not undermine his evidence that the Defendant was impaired. Rather, it speaks to the witness's fair, even generous, exercise of discretion should the circumstances show a low blood alcohol concentration. Furthermore, P.C. Mask's evidence is not materially contradicted by the evidence of the qualified intoxilyzer technician P.C. Kolodziechuk. The qualified intoxilyzer technician found that the Defendant's speech was good; so did P.C. Mask. P.C. Kolodziechuk noted the Defendant's balance was sure and the breath room video confirms this; P.C. Mask noticed one stumble and nothing more at the scene and had no recall of his balance at the station. Both officers noticed the odour of alcohol on the Defendant's breath. Both officers noted that the Defendant's eyes appeared affected: Kolodziechuk noted they were watery, whereas Mask observed that they were glassy and bloodshot. In other words, while the officers' evidence was not identical, they were substantially similar.

[12] In coming to the conclusion that the Defendant's ability to drive a motor vehicle was impaired by the consumption of alcohol, I take into account the following facts:

(a) For an extended time and over a distance of close to 20 km on Highway 10 between Boston Mills Road to the south and Highway 9 to the north, the Defendant was:

(i) consistently driving northbound in the southbound lanes;

(ii) southbound traffic had to evade him to avoid a collision;

(iii) while travelling north through Caledon Village, the Defendant stopped for a red light in the southbound lane;

(iv) he was driving at speeds in excess of 120 km/h in an 80 zone;

(b) From Highway 9 to north of the Hockley Road, the Defendant drove at least 120 km/h and was accelerating;

(c) After P.C. Mask did a u-turn to follow the Defendant north on Highway 10, north of Hockley Road:

(i) the officer had to drive more than 150 km/h to catch up;

(ii) the Defendant's car swerved back and forth between the two northbound lanes and crossed over twice into the southbound lanes showing that he was never maintaining a single lane;

(iii) once the officer activated his roof lights, the Defendant moved his car abruptly and jerked it before halting mostly in a live lane;

(iv) the Defendant's sudden shift and stop forced P.C. Mask to turn out to the left to avoid a collision;

(d) The Defendant's breath smelled strongly of alcohol;

(e) The Defendant's eyes were not normal;

(f) The Defendant had to be told twice to produce all documents the officer requested; and

(g) The Defendant took deliberate steps at the roadside to the police car after briefly stumbling when he stepped out of his car.

[13] The cumulative effect of these facts clearly demonstrates significantly bad judgment, materially diminished attention, and poor physical coordination and awareness while driving combined with modest, but real, physical signs of intoxication including watery eyes, strong odour of alcohol on his breath, and instructions being repeated. The lack of poor balance at the station does not diminish the evidentiary value of the unexplained stumble and deliberate gait of the Defendant at the scene. Assessing the evidence as a whole, I find that the Defendant was impaired to drive by the consumption of alcohol.

[14] For these reasons, I find the Defendant guilty of Count 1 (Impaired Driving).

2.2: Were the Defendant's Charter rights breached, and if so should the Breath Test Results be excluded?

2.2.1: Positions of the Parties

[15] The Defendant asserts that his rights protected by sections 8, 9, 10(a), and 10(b) of the Charter were breached by the investigating officer, P.C. Mask, and seeks the exclusion of the breath test results as a remedy.

[16] Regarding sections 8 and 9 of the Charter, the Defendant argues that the officer lacked reasonable grounds to arrest him. They submit he lacked a subjective believe that the Defendant was impaired because of the officer's evidence that he would release the driver without any charge if his blood alcohol concentration was under the legal limit. With respect to section 10(a) of the Charter, the Defendant submits that P.C. Mask was too vague in telling the Defendant why he was being detained. As for the allegation that the Defendant's section 10(b) Charter right was violated – which the Crown concedes it was – the breach by P.C. Mask was serious by relegating the giving rights to counsel only after searching the Defendant's car.

[17] The Defendant urges me to find multiple and serious violations so as to provide him the remedy of excluding of the breath test results which would necessitate a dismissal of the Over 80 charge.

[18] The Crown concedes that the delay in giving rights to counsel resulted in a breach of the Defendant's section 10(b) Charter right. They do not, however, agree that any of his other Charter rights were violated. The Crown submits that whether there was one breach or more, evidence ought not be excluded.

[19] For the reasons set out below, I find that there was no breach of the Defendant's rights under sections 8, 9, 10(a) of the Charter. I also find that there was no breach of his section 10(b) Charter right, but if there was I would not exclude any evidence.

2.2.2: Sections 8 and 9, Charter

[20] Grounds to arrest must be honestly and subjectively held by the officer and his honest belief must be objectively justified: R. v. Canary, 2018 ONCA 304; R. v. Saciragic, 2017 ONCA 91 at para. 16; R. v. Shepherd, 2009 SCC 35; R. v. Bernshaw (1995), 95 C.C.C. (3d) 193 (S.C.C.) at p. 216; R. v. Storrey, [1990] 1 S.C.R. 241; R. v. Bush, 2010 ONCA 554.

[21] The objective inquiry asks whether a reasonable person, standing in the shoes of the police officer, would have believed that reasonable grounds existed to make the arrest: Storrey, at pp. 250-51. When considering whether an officer's subjective belief is objectively reasonable, the court must look at the objectively discernible facts through the eyes of a reasonable person with the same knowledge, training and experience as the officer: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 45-47. Determining whether sufficient grounds exist to justify an exercise of police powers is not a "scientific or metaphysical exercise", but one that calls for the application of common sense, flexibility, and practical everyday experience: R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 73.

[22] In the case before me, I find that based on the information known to P.C. Mask at the time the officer subjectively and honestly believed that he had grounds to arrest the Defendant for impaired driving. I also find that his belief was objectively reasonable. He testified that he thought the Defendant was impaired due to the driving, both complained of and observed, the odour of alcohol, the driver's bloodshot and glossy eyes, the denial of drinking despite the officer smelling alcohol on his breath, and stumbling as he stepped out of the car.

[23] I reject the submission that the officer's subjective belief of impairment was contradicted, undermined, or discredited by his evidence that he told the Defendant that he would be released from the station without any charges if his breath test results were below the proscribed limit for three reasons. First, the officer's evidence has to be read in context. In response to the Defendant pleading with the officer that he was tired and not intoxicated, the officer told him that he could have a chance to show he wasn't impaired by alcohol taking breath tests at the station. It was at this time that officer told the Defendant that if he "blew under" that he would be released without charge. Thus, the context of the officer's statement was not that he did not believe the Defendant was impaired, but rather that he was prepared to reconsider the impaired charge if the blood alcohol concentration of the defendant was under the legal limit. Second, as stated earlier in my reasons the officer's utterance was a sign of a willingness to exercise of discretion, not a sign of doubt in the officer's subjective belief of impairment. Third, when asked why he didn't use an approved screening device on the Defendant, the officer said that he didn't feel the need given that he believed the Defendant was impaired by alcohol.

[24] In the circumstances, there was no breach of the Defendant's rights under sections 8 and 9 of the Charter.

2.2.3: Section 10(a), Charter

[25] When a person is detained or arrested, he has the right to be told the reason why. This places a duty on the police to give clear reasons for the detention: R. v. Cole, 2017 ONCJ 83. In R. v. Mueller, [2018] O.J. No. 2284 (S.C.J.) at paragraph 33, Justice Schreck, sitting as a Summary Conviction Appeal court, stated that an evaluation of a claim of a breach of section 10(a), Charter requires a three-fold consideration:

(a) Did the police impart information to the detainee as to the reasons for his detention;

(b) If so, was the information imparted by the police, when considered in all of the circumstances, sufficient to allow the accused to understand why he was being detained and the extent of his jeopardy such that he is able to make meaningful decisions about whether to submit to the detention and whether and how to exercise his right to counsel; and

(c) In considering this issue, a court should not assume that the detainee had engaged in the wrongdoing for which he is being investigated.

[26] Recently, the Ontario Court of Appeal in R. v. Roberts, 2018 ONCA 411 held at paragraph 78 that:

Section 10(a) does not require that detainees be told of the technical charges they may ultimately face. A person will be properly advised of the reason for their detention if they are given information that is sufficiently clear and simple to enable them to understand the reason for their detention and the extent of their jeopardy: R. v. Evans, [1991] 1 S.C.R. 869, at pp. 886-88; and R. v. Nguyen, 2008 ONCA 49, 232 O.A.C. 289, at paragraphs 16-22. Put more purposively: "The issue is whether what the accused was told, viewed reasonably in all the circumstances, was sufficient to permit [her] to make a reasonable decision to decline or submit to arrest", or in the alternative, to meaningfully exercise the right to counsel under s. 10(b): R. v. Gonzales, 2017 ONCA 543, 136 O.R. (3d) 225, at paragraph 125.

[27] In the case at bar, P.C. Mask stopped the Defendant at 4:24 a.m. and spoke to him at his car window. After inquiring of the Defendant where he was going and where he was coming from, the officer told him that he was stopped due to a complaint about his driving. The two then discussed the situation including questions about the consumption of alcohol by the driver. After requesting ownership and insurance for a second time, the officer told the Defendant, "You have been operating a motor vehicle with alcohol in your body". After a brief debate about the cause of the Defendant's driving, the Defendant was told to come with the officer to his cruiser where the Defendant was arrested from impaired driving at 4:28 a.m.

[28] I do not assume the Defendant was clear why he was stopped. I turn to the facts that show he did know why he was stopped, which include the following:

(a) The Defendant was immediately told about the complaint of bad driving;

(b) The Defendant and the officer talked about the driver's use of alcohol;

(c) The Defendant asked the officer for an opportunity to show that it was fatigue, not alcohol that was effecting his driving; and

(d) The Defendant actively participated in a discussion with the officer about his driving and whether he was driving under the influence of alcohol, which he said he was not.

On the facts of this case, I find that it was not necessary for the Defendant to be have been told explicitly of the precise charge being investigated as he was obviously aware it was for possibly being a drunk driver: R. v. Gardiner, [2018] O.J. No. 3404 (C.A.) at paragraph 26. Nothing on the record before me negatively impacted on the Defendant's ability to make a reasoned decision to exercise his rights to counsel.

[29] In the circumstances of this case, there was no violation of the Defendant's right under section 10(a) of the Charter.

2.2.4: Section 10(b) Charter

[30] Everyone has the right to be given rights to counsel without delay upon being arrested. The phrase "without delay" has been interpreted to mean "immediately", subject to concerns for officer or public safety, or to reasonable limitations that are prescribed by law and justified under s. 1 of the Charter: R. v. Suberu, 2009 SCC 33.

[31] Here, the Defendant was arrested at 4:28 a.m. for impaired driving. At 4:29 a.m. he was handcuffed, searched, and placed inside the police car. While the Defendant was sitting alone in the police car, P.C. Mask searched his vehicle incident to arrest. The officer said that he searched it at that point because it was still in a live lane and he was concerned about public safety if he delayed the search. In cross-examination the officer repeated that he did not give rights to counsel to the Defendant right away for safety reasons, but then stated that he had no specific reason not to provide rights to counsel prior to the car search other than "that's just the way it turned out."

[32] After his car was searched, the Defendant was given his rights to counsel at 4:33 a.m., being five minutes after his arrest. The Defendant said that he understood his rights to counsel and, after being asked multiple times if he wanted to speak to a lawyer, the Defendant said that he did not wish to speak with counsel. When he was brought to the station, the Defendant was provided rights to counsel in full again. He again said he understood his rights and once more declined to exercise his right to speak with a lawyer prior to providing breath samples.

[33] The prosecution submitted that the Defendant's 10(b) Charter right was breached by the decision of the officer to search the car before providing the Defendant with those rights. A delay in providing rights to counsel can be justified by valid concerns of officer and public safety. The delay by first searching the Defendant was justified by officer safety, reducing the overall delay from five to four minutes. The reason to delay by searching the car was less clear: the officer said both in examination-in-chief and in cross-examination that he was concerned about public safety given that the car was still in a live lane, but also said he had no particular reason for searching the car before giving rights to counsel. Assessing the evidence as a whole I find that it is more likely than not that the officer delayed the provision of rights to counsel for safety reasons given the dangerous location of the Defendant's car. Given this conclusion, and despite Crown's concession, I find that the Defendant's section 10(b) Charter right was not breached.

[34] If I am wrong and there was a violation of the Defendant's rights to counsel, upon applying the test set out by the Supreme Court in R. v. Grant, [2009] O.J. No. 32, I would not exclude the evidence of the breath test results.

[35] If there was a breach, it was not serious. After arresting the Defendant and prior to giving him his rights to counsel, the police left him alone. There were no questions asked of him during this time, and he made no statements. No evidence, let alone any self-incriminating evidence, was gathered in this period: R. v. A.H., [2018] O.J. No. 4105 (C.A.) at paragraph 33. It is not as if the Defendant never received his rights: they were explained at the scene a few short minutes after his arrest and he was given several chances to invoke his right but he declined. The process was repeated at the police station with the same decision being made by the Defendant. He was given ample reasonable opportunities to seek legal advice before providing breath samples. The breach (if there was one) was technical and inconsequential given that no evidence was gathered prior to the rights being given: R. v. Cullota, 2018 ONCA 665, at paragraph 35. The officer acted in good faith and with a clear understanding that the Defendant was due his rights to counsel. If the officer did not give those rights immediately, he certainly gave them promptly and repeatedly. It would be wrong to describe any breach as more than minimal in these circumstances.

[36] With respect to the impact of a breach on the Charter protected interest of the Defendant, the circumstances here do not favour exclusion: R. v. Jennings, 2018 ONCA 260; R. v. Culotta, supra, at paragraph 65. The delay was very brief; nothing consequential happened in that time; being out on the side of the road, there was no reasonable opportunity for the Defendant to call a lawyer even if he had received his rights the instant he was arrested; the police honoured the rights of the Defendant in all other respects; and the breath test procedures were minimally intrusive and did not undermine the privacy, bodily integrity, or basic human dignity of the Defendant.

[37] As for society's interest in adjudicating the matter on its merits, the breath test results are real and reliable evidence. Those results are central evidence in relation to the "Over 80" charge. Drinking and driving offences extract a high annual social toll on the lives and property of citizens and are, as such, serious crimes. I find that excluding the breath test results in this case would negatively impact on public confidence in the proper administration of justice.

[38] Assuming a breach of the Defendant's 10(b) Charter right, my assessment is that the breath test results should not be excluded from the evidence. The Defendant will be found guilty of Count 2 (Driving Excess Alcohol).

3.0: CONCLUSIONS

[39] For the reasons set out above, I am satisfied that the Crown has proven beyond a reasonable doubt the Defendant's guilt on both Count 1 (Impaired Driving) and Count 2 (Driving with Excess Blood Alcohol). Verdicts of guilty will be recorded on each count.

[40] Upon submissions from the prosecutor, a conviction will be registered on Count 1 (Impaired Driving) and a judicial stay is entered on Count 2 (Driving with Excess Blood Alcohol).

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice