ONTARIO COURT OF JUSTICE

CITATION: R. v. Altobelli, 2018 ONCJ 718

DATE: 2018 10 16

COURT FILE No.: Kitchener 4411-998-17-6736-00

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

Austin ALTOBELLI

Before Justice A.T. McKay

Heard on July 24, August 15, and September 14, 2018

Reasons for Judgment released on October 16, 2018

Ms. Krafchick....................................................................................... counsel for the Crown

Mr. Galluzo...................................................... counsel for the defendant Austin Altobelli

McKAY J.:

INTRODUCTION

[1] Shortly after midnight on September 3, 2017, Mr. Altobelli was moving his motor vehicle from a parking spot on the street to the designated parking lot at his apartment across the street. He came to the attention of the police. After short investigation, during which he admitted to alcohol consumption at some point earlier in the evening, he was arrested for operating a motor vehicle while his ability to do so was impaired by alcohol or a drug. A search incidental to the arrest led to an additional charge of possession of cocaine. He was ultimately given breath tests, which resulted in blood alcohol content readings of 40 milligrams and 31 milligrams of alcohol in 100 millilitres blood respectively. He was also subjected to an evaluation by a drug recognition evaluator. That officer concluded that Mr. Altobelli’s ability to operate a motor vehicle was impaired at the relevant time by the ingestion of some combination of cannabis and a narcotic analgesic.

[2] Mr. Altobelli filed an application to exclude evidence under the Charter of Rights, alleging that his rights under sections 8 and 9 were violated. He alleges that he was arrested without reasonable and probable grounds. He alleges that the police exceeded their lawful authority during the search incidental to arrest by removing articles from his pockets.

EVIDENCE

Constable Jeff Westrop

[3] Constable Westrop is a member of the Waterloo Regional Police Service (“WRPS”). He was working in full uniform in a fully marked police vehicle along with partner, Sergeant Cardoza, during the early morning hours of September 3, 2017. He was a passenger in the police vehicle which was parked on the side of Ezra Avenue. It is an area heavily populated by university students. He was in the process of dealing with two students were going to be issued documentation for Liquor Licence Act violations. It was 12:34 AM, and there was significantly more pedestrian traffic than vehicle traffic. While dealing with those two individuals, he heard a loud crunch sound.

[4] Constable Westrop looked to his right. Approximately 40 feet away, he saw one vehicle with head lights illuminated. Nothing was moving. Then the vehicle with head lights illuminated, an older model BMW, started to pull away. The white Ford Mustang located behind the BMW moved slightly as BMW pulled away. Constable Westrop concluded that there had been contact between the two vehicles and that there was a possibility of an impaired driver. He directed the driver of the BMW to stop. The driver did so, and Constable Westrop approached the driver’s door. He asked the driver to lower his window. The driver lowered the window slightly by about one inch. Constable Westrop asked for the window to be lowered completely, and the driver did so. The driver looked surprised and scared. Constable Westrop smell something which he described as a fresh perfume type smell. The driver spoke to him, and he detected the faint odour of alcohol on the driver’s breath. He had the driver move the vehicle to the side of the road so that he could investigate further. The driver moved the vehicle forward and off of the roadway, a distance of approximately five feet.

[5] Mr. Altobelli was the lone occupant of the motor vehicle. Constable Westrop indicated to Mr. Altobelli that he had struck another car. There was no indication from Mr. Altobelli that he was aware of any contact between the two cars. There was also no indication that Mr. Altobelli had noticed the two uniformed police officers in a fully marked police car approximately 40 feet from his vehicle. Constable Westrop asked him to step out of the vehicle. Mr. Altobelli had extremely red eyes and flushed cheeks. When stepping out of the car, he moved very slowly and his movement seemed very concentrated, as if the movements had to be precise in order to maintain stability. Mr. Altobelli’s hand touched the rear area of the driver’s door for balance while he was stepping out of the vehicle.

[6] Constable Westrop directed Mr. Altobelli to the rear of the vehicle. When he arrived at the trunk, Mr. Altobelli leaned against the trunk to support his body in what Constable Westrop described as a “flop lean”. The area is very well lit artificial street lighting. Once at the trunk area, Constable Westrop had a better view of Mr. Altobelli and he noted that Mr. Altobelli’s eyes were extremely red and starting to water. He asked Mr. Altobelli to produce documentation. Mr. Altobelli fumbled slightly while retrieving his driver’s licence from his wallet. Constable Westrop had to ask on two additional occasions for the registration and insurance documents to be produced. Mr. Altobelli then walked back to the driver’s position, reached into the car and activated the trunk release in order to retrieve those documents from the trunk. Constable Westrop described Mr. Altobelli’s movements as sluggish and lazy. The pupils of Mr. Altobelli’s eyes were significantly expanded to the point where they were taking over the whites of his eyes. He asked Mr. Altobelli if he had been drinking and Mr. Altobelli responded by indicating that he had a couple of drinks earlier that evening with his uncle.

[7] At 12:36 AM, Constable Westrop formed what he believed to be reasonable and probable grounds to believe that Mr. Altobelli’s ability to operate the motor vehicle was impaired by alcohol, a drug, or both. Constable Westrop has been involved in many CDSA investigations since 2016. He has front-line officer training regarding controlled substances. He described the totality of circumstances which led to the formation of his grounds, but also testified that what primarily caught his attention was the way in which Mr. Altobelli was moving. There was an admission regarding alcohol, but only a faint smell. Constable Westrop was of the view that it was more likely that drugs were involved as the source of impairment rather than alcohol. He did not see the need for an approved screening demand or for standardized field sobriety testing. His view, he had grounds for arrest.

[8] After arresting Mr. Altobelli, he searched him as an incident to the arrest. The search took approximately two minutes to complete. There was a hard object in Mr. Altobelli’s front pants pocket. He removed the item and saw that it was a cell phone. At the same time that he pulled the cell phone out Mr. Altobelli’s pocket, a dime bag of powdered cocaine fell out of the pocket. Constable Westrop removed the cell phone from Mr. Altobelli’s pocket because initially he was uncertain of what it was. He was conducting a search for weapons or escape instruments. At 12:45 AM he provided Mr. Altobelli with his right to counsel on both charges. Mr. Altobelli appeared to understand and indicated that he did not have a personal lawyer. When offered the services of duty counsel, he said “please”. At 12:48 AM, Mr. Altobelli was provided with both cautions. He indicated he understood. At 12:51 AM, he provided Mr. Altobelli with the demand for a breath sample.

[9] While this was occurring, Sergeant Cardoza searched the vehicle as an incident to arrest. At 1:02 AM, they left the scene with Mr. Altobelli and drove directly to the closest police detachment. When Mr. Altobelli spoke, he continued to speak very slowly in a low tone of voice. They arrived at detachment at 1:06 AM. After being admitted, Mr. Altobelli was lodged in a cell at 1:11 AM. From 1:20 AM to 1:25 AM, Mr. Altobelli spoke with duty counsel. By 1:34 AM, Constable Westrop had completed forms related to Mr. Altobelli’s detention. At that point he read the drug recognition evaluation demand to Mr. Altobelli. He had not done so at the roadside because at that point he was not certain what combination of alcohol or drugs was the source of the impairment. However, given the opportunity to continue to observe Mr. Altobelli and consider the totality of circumstances, he was of the view that he had grounds to make the drug recognition evaluation demand.

[10] From 2:02 AM to 2:09 AM, he met with the qualified breath technician and provided him with the grounds for arrest. At 2:13 AM, Mr. Altobelli was handed over to the breath technician. Mr. Altobelli provided samples of 40 milligrams of alcohol per 100 millilitres blood at 2:16 AM, and 31 milligrams of alcohol per 100 millilitres blood at 2:38 AM. During the interval between the two tests, he noted that Mr. Altobelli was hiccupping and he noted what appeared to be a urine mark on Mr. Altobelli’s pants. At the conclusion of the test, he advised Mr. Altobelli that his blood-alcohol content was not above the legal limit, but that he still felt that Mr. Altobelli’s ability to operate a motor vehicle was impaired.

[11] For a time, Constable Westrop was unable to find an available drug recognition evaluator, despite exploring all possibilities, which included contacting all divisions of the WRPS, the OPP, and the Stratford police. Constable Green was the evaluator for the WRPS who was working that evening, but he was not immediately available because he was at the scene of a major accident. At 3:35 AM Constable Green arrived and was informed of the grounds for arrest, and the breath test results. At 3:41 AM, Mr. Altobelli was turned over to Constable Green for an evaluation. At 4:13 AM, Constable Green advised him that his opinion, Mr. Altobelli’s ability to operate a motor vehicle was impaired. Subsequently, he completed the paperwork with respect to the charges, and arranged for Mr. Altobelli’s release.

[12] In cross-examination, Constable Westrop confirmed that there was no “in car” video recording of the interaction scene. There was no damage to the parked car that he believed Mr. Altobelli’s car backed into. The only damage to Mr. Altobelli’s car was two indentations in the bumper from the licence plate bolts of the other vehicle. He maintained that the noise of the two cars coming into contact was loud enough to get his attention and that he saw parked car move slightly. He described Mr. Altobelli as being cooperative, slow to respond but responsive.

Constable Jeremy Green

[13] Constable Green has been a qualified drug recognition evaluator since June 2013. On September 23, 2017, he was working the 5 PM to 3 AM shift, supervising the traffic unit at the Cambridge detachment. H was at the scene of a major collision investigation in Cambridge and was supervising the traffic investigators and patrol officers at that scene. He was advised of the Altobelli investigation and the need for an evaluator. He advised dispatch that they should look into obtaining another evaluator because of his commitment at the accident scene. At 1:50 AM, he was advised by the communication centre that no other evaluators were available. He spoke with Constable Westrop and suggested that the breath tests be done first, given that it is the first step in the 12 step process of a drug recognition evaluation.

[14] At 2:37 AM, Constable Westrop called him with the results of the first breath test, and expressed concern regarding impairment by a drug. Constable Green made arrangements to leave the scene of the traffic accident. At 3:07 AM, he left the scene and attended at his detachment to pick up his evaluation kit. He arrived at North division detachment at 3:29 AM. Constable Westrop provided him with the grounds for arrest at 3:37 AM. At 3:44 AM he cautioned Mr. Altobelli and read the drug recognition evaluation demand.

[15] He described Mr. Altobelli as sluggish, with watery eyes and a red face. He did not note any medical concerns. During the eye examination, he determined that Mr. Altobelli’s pupils were six millimetres in size, outside of the normal range of 2.5 to 5 millimetres. There was also a lack of smooth pursuit to the eyes, and a lack of convergence. The eyes were watery and bloodshot.

[16] Constable Green made the following observations during the divided attention tasks. With respect to the modified Romberg balance test, Mr. Altobelli only put his head back approximately one third of the expected distance, and he displayed body tremors and swaying. With respect to the walk and turn test, Mr. Altobelli had a loss of balance when waiting to begin the test and had body tremors. At one point he missed putting his heel to his toes by more than one half inch. Constable Green’s training indicates that any two indicators in this test is a strong indicator of impairment. With respect to the one leg stand, Mr. Altobelli did not lift his foot the required six inches above the floor; he kept his foot approximately one half inch above the floor. Mr. Altobelli used his arms heavily in trying to maintain balance and had them more than six inches out from the side of his body, again contrary to the instructions. With respect to the test involving touching the fingertip to the tip of the nose, Mr. Altobelli used the pad of his finger rather than the tip and, on the fifth attempt, touched the bridge of his nose. Constable Green also observed body tremors during that portion of the test.

[17] With respect to clinical indicators, Mr. Altobelli’s pulse rate was within the normal range. His body temperature was slightly lower than the normal range, and his diastolic blood pressure was slightly below the normal range. Mr. Altobelli’s muscle tone was flaccid. During the darkroom test, in near total darkness, Mr. Altobelli’s pupil size was slightly larger than the normal range. Pupil size was also slightly above the normal range with a light shining on the eyes.

[18] At the conclusion of the evaluation, Constable Green was of the opinion Mr. Altobelli’s ability to operate a motor vehicle was impaired by either cannabis or a narcotic analgesic, or both. The following signs were consistent with cannabis impairment: body tremors; lack of convergence of the eyes; a greenish colour to the tongue; sluggish behaviour; slurred speech and dilated pupils. A lower body temperature, low pulse rate and blood pressure were consistent with impairment by a narcotic analgesic. Cannabis products alone increase blood pressure and pulse rate. However, the two categories of drugs together matched his observations. He obtained a urine sample and forwarded it to the Centre for Forensic Sciences.

[19] In cross-examination, Constable Green disagreed with the suggestion that people would lose motor skills at 4 AM given the disruption in their sleep cycle. He indicated that he was unaware of whether an antihistamine would cause a lack of smooth pursuit in the horizontal gaze nystagmus test. He maintained that two indicators during the modified Romberg balance test, body swaying and loss of balance once, was a strong indicator of impairment. Similarly, he maintained that despite the fact that Mr. Altobelli completed most of the aspects of the walk and turn test correctly, his missed heel to toe step on one occasion and swaying constituted two indicators and was a strong indicator of impairment. Further, he maintained in cross-examination that during the one leg stand test, the failure to lift the foot high enough off the floor, failure to maintain the arms at the side of the body and the tremors in the muscles were all clues which suggested impairment.

Sergeant Nathan Cardoza

[20] Sergeant Cardoza was working with Constable Westrop when they encountered Mr. Altobelli at the scene. He was in the process of writing a ticket for Liquor Licence Act offence and was seated in the drivers’ seat of his car. He heard a noise which he described as “a crack” through the open window of his car. Constable Westrop commented that someone had just backed into a car, and Constable Westrop exited and walked to the rear of their vehicle. He continued to deal with the individuals involved in the Liquor Licence Act investigation after Constable Westrop left the police vehicle.

[21] Within a few minutes, he heard the radio transmission regarding Constable Westrop’s arrest of Mr. Altobelli. He joined Constable Westrop and removed the keys from Mr. Altobelli’s vehicle. Mr. Altobelli’s vehicle was parked approximately 20 to 25 feet from the police vehicle occupied by him and Constable Westrop. He could not recall seeing any damage to the vehicles. He observed a baggie of what appeared to be cocaine fall to the ground when Constable Westrop was searching Mr. Altobelli. Constable Westrop then rearrested Mr. Altobelli for possession of a controlled substance. Sergeant Cardoza searched the vehicle for evidence related to that offence, with negative results.

[22] He accompanied Constable Westrop and Mr. Altobelli to detachment. He noted that there was a smell of both alcohol and cologne emitting from Mr. Altobelli. Mr. Altobelli’s eyes were glossy and he appeared confused.

Constable Matthew Murray

[23] Constable Murray is the qualified Breathalyzer technician who administered the breath tests to Mr. Altobelli. At 2:03 AM he received information from Constable Westrop regarding the grounds for arrest. At 2:13 AM Mr. Altobelli attended at the breath room. Constable Murray noted that Mr. Altobelli walked with a slight weave and that his eyes were droopy, not fully open. The approved instrument was functioning properly. The first sample at 2:16 AM resulted in a reading of 40 milligrams of alcohol in 100 millilitres blood. The second sample at 2:38 AM resulted in readings of 31 milligrams of alcohol in 100 millilitres blood.

[24] In cross-examination, he indicated that Mr. Altobelli’s skin tone was normal. He noted the odor of alcohol and slow, mumbled speech. Mr. Altobelli almost appeared tired. He was of the opinion that Mr. Altobelli’s ability to operate a motor vehicle was impaired, but not by alcohol.

Betty Chow

[25] Ms. Chow is a toxicologist at the Centre for Forensic Sciences. She is an expert on the absorption, distribution and elimination of alcohol and controlled substances in the human body.

[26] She tested Mr. Altobelli’s urine sample in accordance with the standardized testing protocol. She also tested for specific drugs given the information received about the investigation. The test detected the presence of Alprazolam, which is a central nervous system depressant. Side effects of ingesting Alpralozam can include drowsiness and impaired coordination. She also detected Tetrahydrozoline, a central nervous system depressant. It is a topical decongestant and vasoconstrictor, and is available as eye-drops and for topical nasal application. Side effects associated with its use may include drowsiness, tremors and blurred vision. She noted that if that substance was being taken properly as eye-drops that would not create an issue. She also detected the presence of carboxytetrahydrocannabinol, which indicates exposure to cannabis sometime prior to the testing.

[27] With respect to each of the substances, she was unable to comment on the concentration thereof Mr. Altobelli’s bloodstream, nor the timing of ingestion of those substances. The urine results simply indicate that those drugs were taken at some time prior to the testing. The Alprazolam, if taken by tablet, would be taken within days of the urine sample. With respect to the presence of carboxytetrahydrocannabinol, cannabis would have been ingested within the previous month. Tetrahydrozoline is eliminated by the body quickly, and would have been taken within a day of the urine sample.

[28] Ms. Chow reviewed the forms generated by the drug recognition evaluator. She did not detect the presence of a narcotic analgesic, which is old terminology for opiates. However, there are so many narcotic analgesics that it is impossible to keep up and test for all of them. The Centre’s testing involves checking for 50 narcotic analgesics; there are hundreds of additional narcotic analgesics which would not be detected by the urine testing that she carried out.

[29] Cannabis is typically smoked. The onset of its effects occur within minutes. Peak effect is generally 30 to 60 minutes after ingestion, and effects last for approximately 4 to 6 hours. Common effects include euphoria and relaxation. Side effects include the decreased ability to concentrate; disorientation of judgment of time and space; redness of the whites of the eyes; eyelid tremors; pupils can range from normal to dilated with high doses; decrease in coordination; body tremors and twitching. Cannabis can impact blood pressure by increasing it, but that observation is somewhat controversial because long-term use of cannabis can actually lower blood pressure. It can also increase the heart rate and there is some potential for an increase in body temperature. However, long-term use of cannabis can lower all three of those measures.

[30] With respect to narcotic analgesics, one must factor in the tolerance of the individual ingesting the drug. If taken daily in regulated dosages for pain, there would probably be few impairing effects. However, recreational use of the same drug, ingesting through snorting, smoking, or injecting would cause side effects which include a decreased level of consciousness. This class of drugs can decrease blood pressure, heart rate and body temperature. The timing of the effects depends on the method of ingestion, but the effects on the body are felt fairly quickly.

[31] If one combined ingesting cannabis with a narcotic analgesic, both drugs could depress the body system, but they work independently to slow brain function. With respect to combining a blood-alcohol content of 30 to 40 milligrams with cannabis, if enough cannabis was ingested to impact the body, it would increase the level of impairment. In Ms. Chow’s opinion, if alcohol was the only substance being ingested, a blood-alcohol content of 50 milligrams per 100 millilitres of blood produces impairment of ability to operate a motor vehicle.

[32] Ms. Chow confirmed that Alprazolam is a drug prescribed for the treatment of anxiety and panic disorders. Effects that occur after the use of this drug may include lack of muscle control, drowsiness, loss of consciousness and dizziness. Effects of the drug depend upon the concentration in the blood in the tolerance of the individual to the drug. If being used regularly and as prescribed, she would expect limited side effects.

Video from the police station

[33] This material is of little assistance to the Court. There are a number of different camera angles and locations. However, some of them are considerable distance away from the subjects. Other camera angles show only a portion of the evaluation. Whatever subtle signs of impairment the evaluator referred in his evidence were not discernible to the court on the video. One thing of note from the video is that it appeared that the sweatpants worn by Mr. Altobelli fit him reasonably well, as opposed to being much too large as testified by Mr. Altobelli.

Austin Altobelli

[34] Mr. Altobelli’s 22 years of age, and does not have a criminal record. He resides in Markham, Ontario with his mother. He graduated from Wilfrid Laurier University in May 2018 with an Honours degree business and economics. He is self-employed, owning a landscaping company, and a network marketing business. He has suffered from anxiety issues since early high school. In 2016 he was diagnosed with general anxiety and depression. He was prescribed five milligrams of Cyprolex twice daily. He was not warned that the medication could impact his driving. The dosage was subsequent increased to 20 milligrams. The last time that took the medication was the afternoon of September 1, 2017. On September 2nd he travelled to Waterloo. His uncle travelled with him by separate car because he had too many belongings to transport in his own car. In addition to the Cyprolex, he takes allergy medication daily due to a grass allergy, and also takes eye-drops and nasal spray daily.

[35] He testified that during the evening of September 2, he drank 2 ½ “tallboy” beers. Just prior to coming into contact with police, he was at his apartment. His car was parked across the street from the apartment entrance, and overnight street parking is prohibited in that area. He was dressed in a T-shirt and shorts and was going outside to move his vehicle to his designated parking spot for the apartment. As he was leaving his apartment, he grabbed someone else’s sweatpants to wear over top his shorts. He is not certain whose sweatpants they were. There were five individuals living in the house during the school year. Some of his roommates had sublet their rooms during summer, and it was a period of transition with people coming and going from the apartment. He was unaware of the cocaine in the pocket of the sweatpants. The first that he became aware of the cocaine is when the officer essentially pulled the cocaine out of the pants pocket. He has never used cocaine. He is an occasional cannabis user, approximately once per week.

[36] Mr. Altobelli testified that his car did not make contact with the car parked behind his when he was moving the car. He did not hear the sound of any impact. He also testified that his car sits very low to the ground so he always grabs the door in order to exit the vehicle. He is six foot two inches tall, and it is difficult to get out of the vehicle. At the trunk of the police car, he simply leaned on the trunk because he was having a conversation with the officer. He also indicated that at the police detachment, he was tired, sleepy and extremely anxious.

[37] In cross-examination, he agreed that he did not make any statement to the police that evening indicating surprise that the officer found cocaine in the pocket of the sweatpants. He agreed that it was not cold that evening; the temperatures were in the teens when he went to move his car. He testified that he only needed to move the car 30 meters. He wanted to put sweatpants on in order to have pockets because he took his wallet, keys and phone with him to move the car. There were no pockets in his shorts. He did not grab his own pants because he had not unpacked and organized his clothing. He maintained that the sweatpants were too large on him and were falling down.

POSITIONS OF THE PARTIES

The Crown

[38] The Crown position is that the arrest of Mr. Altobelli was lawful. The arresting officer heard a loud bang and believed that he saw the parked car move. When he spoke to Mr. Altobelli, Mr. Altobelli seemed unaware of any impact between the two cars. When exiting the vehicle, the officer observed Mr. Altobelli using the door for assistance. He noted that Mr. Altobelli’s movements were slow and deliberate. He observed a red eyes and slow speech and there was an admission regarding consumption of some alcohol. The Crown submits that the totality of the circumstances justify the arrest for impaired driving. Further, the Crown position is that the search of Mr. Altobelli’s pocket which resulted in the seizure of the cocaine was a valid search incident to arrest.

[39] With respect to the issue of impairment, the Crown submits that Sergeant Cardoza’s involvement with Mr. Altobelli was quite limited, which explains the lack of additional evidence from Sergeant Cardoza regarding impairment indications. The Crown points out that at 2:13 AM, the qualified breath technician was of the opinion that Mr. Altobelli’s ability was impaired, although not by alcohol. In addition, the Crown submits that some of the observations of the evaluator are subtle, and cannot be seen by the court on the video of the drug recognition evaluation.

[40] With respect to the possession of cocaine charge, the Crown takes the position that Mr. Altobelli’s evidence is so implausible that it should be rejected. The Crown submits that it is extremely unlikely that, on a warm evening when Mr. Altobelli is simply going downstairs to move his car 30 meters, he would put on someone else’s sweatpants so that he would have pockets in which he could carry his keys, cell phone and wallet.

The Defence

[41] The defence takes the position that Mr. Altobelli’s arrest was unlawful. While Constable Westrop may have had a subjective belief that Mr. Altobelli’s ability to operate a motor vehicle was impaired, that belief was not objectively reasonable. The arrest was made on the basis of the quick conclusion without further investigation. In examining the objective basis for the arrest, the court should examine all of the other evidence to see if the officer’s conclusion was objectively justified. Sergeant Cardoza’s evidence does not provide any additional basis for the arrest. Mr. Altobelli’s actions on the video recording at the police detachment do not provide evidence of impairment. The failure to make the drug recognition evaluation demand at the roadside suggests that Constable Westrop did not have grounds to make the demand at that point.

[42] With respect to the issue of impairment, the defence position is that the evaluator interpreted the tests in a way which supports a conclusion of impairment, while ignoring information which suggests otherwise. The defence suggests that when the court observes the totality of the drug recognition evaluation, Mr. Altobelli performed well. The evaluator concluded that Mr. Altobelli was impaired by analgesic narcotic and cannabis. The urine test does not reveal any trace of an analgesic narcotic. Some of the symptoms observed by the evaluator can be attributed to the presence of the anxiety medication prescribed for Mr. Altobelli. Other symptoms, such as blood pressure, body temperature and pulse are not consistent with cannabis use. With respect to the driving, Mr. Altobelli did not feel that he backed into the other car, and there was no damage incurred on either vehicle.

[43] With respect to the possession of cocaine charge, Mr. Altobelli testified that the sweatpants did not belong to him and that he had no knowledge of cocaine in the pocket of the sweatpants. His urine analysis does not reveal any trace of cocaine. The defence questions how the court could find that Mr. Altobelli’s evidence is not worthy of belief, given that it was not shaken in any material way on cross-examination.

APPLICABLE LEGAL PRINCIPLES

[44] The Crown must prove all elements of any criminal offence beyond a reasonable doubt in order to obtain a conviction.

[45] It is an offence to operate a motor vehicle while one’s ability to operate the vehicle is impaired by alcohol or a drug or a combination thereof. Impairment of driving ability is a matter of fact that must be proved beyond a reasonable doubt. In order to constitute an offence, impairment does not have to reach any particular level. Evidence which establishes any degree of impairment of the ability to operate a motor vehicle is proof of an offence.

[46] No single test or observation of impairment, standing alone, is conclusive. Impairment of one’s ability to drive is generally understood as meaning the alteration of one’s judgment and a decrease in one’s physical abilities. Proof can take many forms. Any circumstance that relates to driving ability may be considered, including: balance, comprehension, coordination, fine motor skills, judgment, physical movement, reaction times, vision and alcohol or drug consumption. Evidence of the pattern of driving is relevant. A judge is not to consider each item of evidence in isolation. The totality of the evidence must be examined to determine whether the Crown has proven the impairment.

[47] Where it is necessary to prove impairment of the ability to drive by observation of the accused and his conduct, those observations must indicate behavior that deviates from normal behavior to a degree that the required onus of proof is met. To that extent, the degree of deviation from normal conduct is a useful tool in the appropriate circumstances to utilize in assessing the evidence and arriving at the standard of proof that the ability to drive is actually impaired. Where the evidence indicates that an accused’s ability to walk, talk and perform basic tests of manual dexterity was impaired by alcohol or a drug, the logical inference may be drawn that the accused’s ability to drive was also impaired. The Crown must show that considering all of the evidence heard, there can be no other reasonable conclusion than that the driver’s ability to drive was impaired by alcohol or a drug.

[48] Non-expert witnesses may give opinion evidence as to impairment. Expert evidence must be taken together with all of the other evidence in considering whether the charge of impaired driving has been made out.

[49] The results of breath, urine or blood tests may corroborate evidence attributing observed indicia of impairment to the consumption of alcohol or drugs. However, these results do not permit an inference as to the amount of alcohol consumed and its effect on the driver, unless an expert toxicologist establishes a correlation between the result and a level of impairment.

[50] The issue of whether reasonable grounds exist involves both an objective and a subjective component. The police officer must subjectively have an honest belief that the suspect has committed an offence, and objectively reasonable grounds for the police officer’s belief must exist at the time that the belief is formed. The test is not an overly onerous one. A prima facie case need not be established. Appellate courts have cautioned that the test must not be inflated to the context of testing trial evidence. Reasonable grounds are credibly based probability. The subjective component amounts to an honest belief. The objective component then requires that the police officer’s opinion was supported by objective facts.

[51] In the context of an impaired driving, what is required is that the facts found by the court be sufficient objectively to support an officer’s subjective belief that a motorist was driving while his or her ability to do so was impaired, even to a slight degree, by alcohol, a drug, or a combination thereof. The reasonableness of the officer’s opinion must be judged by reference to the totality of circumstances and in the situation in which it was formed. A roadside investigation demands a quick and informed decision without the luxury of reflection. The decision is made based on available information which is often less than exact or complete. The belief, based on perceived facts, is frequently a compilation of a state of facts that are too subtle and too complicated to be narrated separately and distinctly. In looking at the totality of the circumstances, we unbundle those facts only to the extent necessary to ensure that the grounds are objectively supported.

[52] If an arrest is lawful, the police have the common law power to search. A search incident to arrest must be one that is for a valid objective in pursuit of the ends of justice. Valid objectives include the discovery of items which might pose a threat to the safety of the police, the accused or the public; items that might facilitate escape; or things that may furnish evidence against the accused. The search must be carried out for a reason related to the arrest. The searching officer must have some valid purpose connected to the arrest in mind when the search is conducted, and the belief that the search would serve that purpose must be reasonable in all the circumstances.

[53] A search incident to arrest is not dependent upon the police having reasonable grounds to believe that a weapon or evidence will be found on the arrested person. The test simply requires that the police decision to search is a reasonable one related to the arrest. For example, if the search is for evidence, there must be some reasonable prospect that evidence will be found relating to the offence for which the accused was arrested. The search must be carried out within a reasonable period of time after the arrest, and within the immediate surroundings of an accused. An officer conducting a search may have more than one purpose or reason in mind while carrying out the search. As long as one of those purposes or reasons is related to the arrest, the search will be incidental to the arrest. The power to search incidental to arrest includes the immediate surroundings of the accused person.

ANALYSIS

[54] In my view, the Crown has established that Constable Westrop had reasonable and probable grounds to make an arrest.

[55] Constable Westrop heard a sound which he attributed to the bumpers of the two cars coming into contact. Sergeant Cardoza testified that he heard the same noise. Constable Westrop then spoke with Mr. Altobelli, and concluded that he observed red eyes and flushed cheeks. When asked to step out of the car, Mr. Altobelli’s movements were very slow and concentrated and Mr. Altobelli appeared to use the driver’s door for balance when stepping out of the vehicle. Mr. Altobelli subsequently leaned against the trunk of the officer’s car when speaking to him. His pupils were dilated and he admitted to consuming alcohol earlier that evening.

[56] I find that Constable Westrop had an honest subjective belief of impairment. Given the totality of the observations, there was an objective basis for that belief.

[57] With respect to the search incidental to arrest, there were valid objectives to search Mr. Altobelli’s pockets related to safety issues and the potential for means to escape. Accordingly, the Charter application is dismissed.

[58] With respect to the impairment issue, Mr. Altobelli had a blood-alcohol content readings of 40 milligrams and 31 milligrams of alcohol per 100 millilitres of blood. In addition, in the opinion of the evaluator, his ability was impaired by cannabis and/or a narcotic analgesic.

[59] With respect to the driving, there was very little opportunity to observe his operation of the motor vehicle. The police officers at the scene both testified that a heard a noise which was attributed to the sound of Mr. Altobelli backing into the car parked behind his. Constable Westrop believed that he saw the parked car moved slightly after Mr. Altobelli moved forward. There was no damage to the vehicles, although Constable Westrop testified that Mr. Altobelli’s rear bumper bore the imprint of the licence plate bolts of the parked car. I accept the evidence of the officers that they heard a noise. I accept Constable Westrop’s evidence regarding the slight movement of the parked car and the imprint of the licence plate bolts on the bumper of Mr. Altobelli’s car. Accordingly, there was some, albeit minor, contact between the two cars. There was nothing else in the very limited opportunity to observe Mr. Altobelli’s operation of the car which suggested impairment.

[60] I accept Constable Westrop’s evidence that Mr. Altobelli’s eyes were red and watering, with dilated pupils and that his face was flushed. I accept his evidence that Mr. Altobelli moved slowly when asked to exit the vehicle and that he touched the driver’s door as he stepped out of the vehicle. There is also no dispute that Mr. Altobelli leaned on the trunk of the police car while speaking with Constable Westrop.

[61] Constable Green formed the opinion that Mr. Altobelli’s ability to operate the motor vehicle was impaired by cannabis and/or a narcotic analgesic. The urine sample analysis does not reveal the presence of a narcotic analgesic which could be identified by the testing which was conducted. Constable Green was of the view that the use of cannabis products alone would result in an increase blood pressure and pulse rate, while a narcotic analgesic would lower blood pressure, pulse rate and body temperature. The defence points to the lower than normal blood pressure, pulse rate and body temperature, and points to the lack of urine test results for a narcotic analgesic. The proliferation of narcotic analgesics and the ability to test for all of them was explained by Ms. Chow. I accept the evidence of Ms. Chow that while cannabis use can increase blood pressure, pulse rate and body temperature, long-term cannabis use can actually lower all three measures.

[62] Some of the observations made by Constable Green are subjective. For instance, it is difficult for the court to place a great deal of weight on evidence that, in his view, Mr. Altobelli’s movements were sluggish. Since Mr. Altobelli was unknown to him, there would be no baseline for comparison of Mr. Altobelli in other scenarios. It is not possible for the court to independently evaluate some of the other indicators of impairment which Constable Green described because of the quality of the video recording the evaluation, in part due to camera location, and in part because some portions of it are simply not shown on the video. The court is left with an indication that for the most part, the tests were performed in a largely unremarkable fashion. For instance, Mr. Altobelli appeared to perform the walk and turn test in accordance with instructions, notwithstanding Constable Greene’s indication that there was a small misstep on one step, and that he observed body tremors and swaying on the part of Mr. Altobelli.

[63] Constable Murray, who performed the breath tests, was of the opinion that Mr. Altobelli was impaired, but not by alcohol. That evidence is of limited use to the court without a more fulsome explanation of how that conclusion was drawn.

[64] I accept Mr. Altobelli’s evidence that he takes a prescribed anxiety medication. In addition, I accept his evidence that he takes allergy medication due to a grass allergy, and that he uses eye-drops and nasal spray daily, given his work as a landscaper.

[65] I am of the view that it is entirely possible that Mr. Altobelli’s ability to operate the motor vehicle was impaired by some combination of alcohol and a drug at the relevant time. However, I am of the view that the Crown has not proven that proposition beyond a reasonable doubt, and accordingly there will be a finding of not guilty on the impaired driving charge.

[66] With respect to the possession of cocaine, one could question why Mr. Altobelli would find it necessary to put on sweatpants on a warm evening to go outside for a matter of minutes to move his car 30 meters. Why would it be necessary to take his phone and his wallet? However, I am mindful of the attachment which some people of Mr. Altobelli’s age have to their phones. While it was not in evidence, I am also mindful of the fact that one must produce one’s driver’s licence to police upon request when operating a motor vehicle, even for a few feet. A more significant question is why, if Mr. Altobelli was truly surprised at the presence of the cocaine in pocket of the sweatpants, he would have said absolutely nothing to indicate that to the police that evening.

[67] I find that Mr. Altobelli’s evidence regarding the lack of knowledge of cocaine in the pocket of the sweatpants is not credible. In applying the analysis required by R. v. W. (D), I find that the Crown has proven beyond a reasonable doubt that Mr. Altobelli had knowledge of and control over the cocaine found in the pocket of the sweatpants which he was wearing.

CONCLUSIONS

[68] There will be a finding of not guilty on the impaired driving charge, and a finding of guilty on the possession of cocaine charge.

Released: October 16, 2018

Signed: Justice A.T. McKay