Court File and Parties
Ontario Court of Justice
Date: 2018-12-06
Court File No.: Newmarket 15-09583
Between:
Her Majesty the Queen
— and —
Kenneth Procyk
Before: Justice John McInnes
Heard on: June 6, October 25 & 26, 2017, May 11 and July 31, 2018
Reasons for Judgment released on: December 6, 2018
Counsel:
- P. Hsiung, for the Crown
- S. Price, for Kenneth Procyk
McINNES J.:
[1] Facts and Charges
Kenneth Procyk was charged with impaired and "over 80" operation of a motor vehicle. At about 3:00 a.m., December 5, 2015, OPP Constable Kotsopoulos was patrolling the northbound Highway 404 near Stouffville when dispatch advised a 911 caller had reported and was following a possible impaired driver. PC Kotsopoulos located and pulled over the suspect vehicle driven by the defendant near Yonge St. and Ashfield Rd. in Richmond Hill. After a brief interaction, he arrested the defendant for impaired driving.
PC Ziccardi arrived on scene as the defendant was being arrested. He made relevant observations at that time and later at the Aurora OPP detachment when he administered the breath tests which measured the defendant's blood alcohol concentration as 150mg/100ml and 140mg/100ml.
I. Issues and Positions
[3] The defendant alleges his ss. 8, 9 and 10(b) Charter rights were infringed because (i) PC Kotsopoulos lacked the requisite grounds for the arrest and s.254(3) breath demand; and, (ii) he was denied privacy during his consultation with duty counsel at the OPP detachment. He submits the breaches were serious and had a significant impact on his Charter-protected interests and, consequently, the breath readings should be excluded under s.24(2) of the Charter. He further argues the credible evidence of impaired operation falls short of proof beyond a reasonable doubt. Both charges should therefore be dismissed.
[4] The Crown submits: (i) the officer had reasonable grounds and that there was no denial of privacy during the duty counsel call; (ii) alternatively, the s.24(2) test for exclusion is not met because any breaches were minor and technical with little impact on the defendant's Charter-protected interests; and, (iii) the evidence proves impaired operation beyond a reasonable doubt.
[5] The two core issues are: (i) whether I accept PC Kotsopoulos' testimony in relation to indicia of impairment; and (ii), if not, whether the resulting Charter breaches necessitate exclusion of the breath readings under s.24(2) of the Charter.
II. Analysis
(a) Grounds for the Arrest and s.254(3) Demand
[6] Section 254(3) empowered PC Kotsopoulos to make a breath demand if he had "reasonable grounds to believe [the defendant was] committing, or at any time within the preceding three hours [had] committed, an offence under section 253 as a result of the consumption of alcohol". Because a breath demand results in a warrantless seizure, the Crown bears the onus of proving PC Kotsopoulos had such grounds: R v Shepherd, 2009 SCC 35, para.16; R v Haas.
[7] Proof of reasonable grounds has both a subjective and an objective component. The Crown must establish that (i) PC Kotsopoulos actually perceived there were reasonable grounds to believe the defendant was committing, or within three hours had committed, an offence under s.253 and that this perception was objectively reasonable given the information he had: Shepherd, para.17; R v Bernshaw, para. 48.
[8] Here, it is the objective component that is disputed. Testifying in-chief, PC Kotsopoulos gave this summary of his grounds:
…so, at that time, I had for my grounds, the civilian complaint for the possible impaired driver with the driving evidence, the match of the vehicle identification of the vehicle and also with the civilian described, the time it took for the vehicle to pull over, that it didn't immediately pull over when I activated my lights and sirens, the odour of the alcoholic beverage on the driver's breath, the difficulty accomplishing a simple task of locating his driver's license when required to do so even though it was in plain view and in his hands at one point, the glassy eyes, the slurred speech, the very loose jaw when he was speaking, the direction – well his decision to arbitrarily get out of his vehicle prior to me asking him, the unbalanced – he was unsteady on his feet, his admission of consumption of alcohol, and his careful focus on trying to accomplish the simple task like walking. So I had for my grounds for the impaired driving the offense of impaired driving. So at 318, Mr. Procyk was placed under arrest for impaired operation of a motor vehicle.
[9] As recited, these grounds would clearly justify the arrest and demand. Mr. Price forcefully submits I should reject the officer's evidence, however, and Crown counsel fairly concedes the s.8/9 Charter application turns on my assessment of the officer's testimony.
[10] I accept PC Kotsopoulos' description of the information he received from dispatch and that he detected an odour of alcohol, both of which were confirmed by other evidence. But I do not accept the remainder of his evidence concerning his grounds for arrest because his testimony as a whole was riddled with anomaly, implausibility, internal inconsistency and apparent contrivance.
Slurred Speech and Loose Jaw
[11] PC Kotsopoulos' slurred speech/loose jaw testimony is illustrative. The officer testified the first thing he asked the defendant was where he had been and where he was going, to which the defendant replied "just hanging out with my girlfriend and I was going to go home". About this response, PC Kotsopoulos testified in-chief, "I got an idea of he was slurring his words, and like the 'S' sound from 'just' was like elongated and the 'F' sound from girlfriend" and that "[t]he one thing I noticed that was very prominent, his jaw was very loose as he was talking, right, very loose."
[12] In cross-examination, the PC Kotsopoulos admitted that in all his dealings with Mr. Procyk that night, this was the one and only sentence in which he discerned slurred speech and that the rest of the time the defendant spoke at a normal pace and without slurring. Neither PC Ziccardi, nor the two defence witnesses who had spoken to the defendant prior to his arrest, nor I in listening to the defendant speak on the video taken at the Aurora OPP detachment, detected any slurred speech.
[13] At a later point in the cross-examination, Mr. Price returned to this issue:
Q. I'm going to suggest to you that he never slurred any words and his speech was completely normal throughout your dealings with him.
A. No, I will disagree with your suggestion.
Q. Okay.
A. I think the -- the -- the slurred speech was very pronounced but it was -- it was noticeable that I believe he almost caught himself slurring his speech in a sense that it was that discernable, and obviously also being -- placing -- being placed under arrest by police can be a bit of a sobering experience sometimes as well.
Q. So you're suggesting that this marked slurring that you detected in that sentence of a couple words, in that sentence the accused was aware of it and he was able to prevent himself from slurring later on? Is that what you're saying?
A. That's my suggestion.
Q. Okay. So he basically willed himself not to slur any further?
A. That was my suggestion.
[14] I note in passing that the defence expert, Dr. Michael Ward, testified that intoxicated persons can sometimes mask slurred speech for short periods of time but not on a sustained basis.
[15] Shortly after the above exchange, Mr. Price questioned the officer about his assertion in the arrest report that "Procyk's speech was slow and slurred":
Q. So you wrote down here, just or typed, I guess, not wrote, typed these words, "Procyk's speech was slow and slurred", correct?
A. Uh, yes, that's there.
Q. So why would you write down that his speech was slow and slurred when you've told us that there was nothing unusual at all about the pace of his speech?
A. I guess what I was referring to more so is the way he spoke with his loose jaw is what I was trying to elaborate on.
Q. Loose jaw?
A. Yeah.
Q. Well, except for the same one you also indicate "His eyes were glossy. His jaw appeared loose while he spoke".
A. Yes.
Q. So that's something different than slow and slurred?
A. I guess they go hand in hand is what I was trying to get at.
Q. I see. You agreed with me before that his speech was normal paced so it wouldn't have been slow, correct?
A. Right. I did agree with you, yeah.
Q. Yeah, and when you wrote that synopsis you didn't say that the slurring was restricted to two words out of the entire time you spoke to him, did you?
A. No, I summarized it. I generalized it. I didn't write the specific words that were down in my notebook.
Q. You'd agree with me that it would be inaccurate to say "His speech was slow and slurred" then?
A. I wouldn't say "inaccurate".
Q. You wouldn't?
A. No, I wouldn't.
[16] PC Kotsopoulos was then cross-examined about his claim that the defendant's "jaws were loose" and that this was indicative of impairment. The following exchange is lengthy, but it is worth setting out in full:
Q. So let's talk about this jaw, his jaws were loose because I've never heard that before.
A. Okay. Oh. Oh.
Q. And so tell me what that means and why that's an indicia of impairment because that's important to the Court that his jaw appeared to be loose?
A. It's almost like his jaw -- he wasn't talking like normally in terms of how someone normally talks, almost like I'm talking now with control over his jaw muscles. It appeared more like slack, like and loose, and when he spoke even his enunciation may have been off a bit, and it may have affected yes, his rate, and I should have indicated that earlier when you asked me directly but it wasn't normal and it really stood out that his jaw was not -- almost like in line with his upper jaw. His lower jaw would appear much, I don't know if I can describe it, much looser when he spoke that it affected the enunciation almost of his -- of his speech but didn't -- didn't effect to that I couldn't understand him, but would be consistent with that of someone who was intoxicated, the way he spoke where it was -- again, I'm trying to use a word other than loose. I'm trying to be more articulate here. It didn't appear like he had a lot of control over how his jaw would almost move side to side in a sense. I don't know how to put it. I'm trying my best here, but it just -- the best way to describe it would appear like loose. I'm doing my best here. I'm sorry, I'm not as articulate as I can be.
Q. Let's talk about this enunciation. You told us just seconds before that other than two words out of the original first twelve that there was no slurring.
A. Yes, yeah.
Q. You never told His Honour that there was any difficulty with enunciation up to that -- other than that slurring that you told us about of those two words, correct?
A. And when you asked me directly yes, I did say that, yeah, but it -- I'm trying to -- sorry, for continuing on here, I'm trying to elaborate in a sense that it didn't affect his -- his pronunciation or in terms of holding a syllable longer like an "S" sound or an "F" sound like he did before. But it just did appear that over time, as he spoke, like as I watched him his jaw was -- was almost like slacked a little bit. Like it wasn't tight and normal as - like I said, like I can only compare to how I'm speaking now or how the average person would speak.
Q. Okay. Let's forget about what his jaw looked like for a moment. I'm more concerned about the noise coming out of the mouth.
A. Right.
Q. And you agree with me that the noise coming out of his mouth or his speech he was responsive?
A. Yes, he was responsive. Yeah.
Q. There was no delay in his speech?
A. No, not delaying answers, no.
Q. Nothing unusual about the pace of his speech?
A. No, no, like you're -- the way you're asking me in terms of pace, no, no.
Q. With all the words you heard that entire morning at the scene, in the car, at the breath room or the station and then the breath room only two words had slurred -- were slurred, yes?
A. Yeah.
Q. His enunciation was perfectly normal, I'm going to suggest, then as well throughout your dealings with him?
A. It was not anything noteworthy. No, it was -- it was normal. Just his -- his jaw -- jeez, I can't describe it. I'm so sorry.
Q. So I'm going suggest to you this.
A. Yeah.
Q. If we weren't looking at him, and we're just listening to an audio of Mr. Procyk at the station or in the car or in the car, in his own car before -- other than those two words we talked about, the audio would show perfectly normal speech, correct?
A. If -- if there was -- I'm going to surmise, if there was a camera on the cruiser and I had audio like I do with York Regional Police it would have sounded different. You would have noticed it immediately. It would have not been in contention, I guess. I guess my description of it is not -- seems to be -- to be as -- I guess, articulate as I want it to be, and my description of it being loose is not translating into how it seemed odd from my perspective is what I'm trying to say.
Q. Well, we did have audio at the police station.
A. Sure, yes, yeah. There. Yes.
Q. Did the loose jaw cause his speech to be anything but normal at the police station?
A. Not from what I noticed, no, not at the police station.
Q. We heard his speech -- we heard him speaking. He was speaking normally, correct?
A. Yeah, he was speaking normally at the station.
Q. Was his jaw still loose at the police station?
A. It was a little. I've got to say.
Q. A little?
A. Yeah.
Q. So again, other than the two words in that one sentence that we talked about in the car, you'd agree with me that his speech was normal throughout your dealings with him?
A. From a speech stand point throughout the deals, yes, I'll agree with you.
Q. Thank you.
THE COURT: From a speech standpoint?
THE WITNESS: A speech standpoint.
THE COURT: A speech standpoint?
THE WITNESS: Yeah. I wish -- I apologize. I wish I could come with a more descriptive way of describing that his jaw was loose. I just – I can't -- it's my fault. I can't accurately or further elaborate on the looseness of the jaw and how it looks. It's something that I saw at the time. It just really caught my eye.
MR. PRICE: I'm going to come back to how it looks but just -- we're just dealing with the sound right now.
A. Sure.
Q. So this is your answer to His Honour, so from a -- just from a speech standpoint and how it sounded, his speech sounded normal throughout your dealings with him except for those two words?
A. Yes. After the dealings, yes.
Q. Thank you. Did you tell -- and I don't mean to get facetious about this, but did he tell you at any point that he was having trouble controlling his jaw?
A. No.
Q. Have you ever been trained by anybody from the centre or from York Regional or O.P.P. that having a loose jaw is an indicia of impairment?
A. I'm going to say not for that specific term, no.
Q. Or anything remotely close to a loose jaw?
A. Yes. Remotely close would be difficulty in muscle control, and so I tried to elaborate on that, that it was almost like he didn't have control over his -- his jaw was kind of lose the way it was, so moving side to side when he would talk. His mouth would almost open a little wider when he tried to say a word or something although it didn't -- you couldn't hear it or it didn't sound much different, but it was noticeable. So in terms of remotely closer having difficulty controlling the muscles, yes, that's part of the indicia of impairment.
Q. And did this -- having trouble controlling his jaw, did that continue at the police station as well throughout your dealings with him?
A. Again, just as I mentioned or just earlier, yeah, slightly.
Q. Slightly?
A. Yeah. Again, it's just something almost new and noticeable. Like I never -- it really caught my eye with Mr. Procyk when he spoke, and the way his jaw – I guess how his jaw moved. It was something that – something noteworthy that's not -- that's wasn't typical, I'm going to say, but really caught my eye that would almost allow me to focus my attention on his like mouth when he would talk that really peaked my interest. That's why I had noted it down.
Q. Did you see the loose jaw when you saw him speaking briefly on the video?
A. Not from the angles of the video there, no, but I was -- from my dealings with Mr. Procyk you could see how close I was to his face when I spoke to him in the hallway and the distance I was from him at the driver's side window, and while speaking to him outside of his cruiser was rather close, much closer than what the video is there, and it's kind of grainy to be honest. So it's not discernable on video.
Q. So the video doesn't accurately depict what happened?
A. I wouldn't say you can't -- you can't notice it on video, and I can attest to what I saw, not what the video sees, but that's what I had seen at the -- at the roadside very pronounced.
Q. So this very pronounced loose jaw was part of your grounds as well?
A. Yes. Yeah, it was.
Q. Did you mention the loose jaw to constables -- pardon me, I'm having a brain cramp, Ziccardi?
A. Yes. I summarized it to him in terms of the speech. That was it.
Q. Did you say anything to him at all about a loose jaw?
A. No, I did not.
[17] PC Ziccardi noticed nothing describable as a "loose jaw".
[18] It is difficult to say whether the foregoing testimony stemmed from sloppiness in the making and/or recording of observations, conscious insincerity or both. Whatever the case, it destroyed my confidence in the accuracy of this officer's perceptions and/or his ability to accurately recount them.
Timing of Grounds Formation
[19] PC Kotsopoulos' mutable account of when and how reasonable grounds to arrest replaced reasonable suspicion for a screening demand in his mind was a second troubling episode in his testimony. The officer initially testified he asked the defendant to get out of his vehicle in order to assess his balance when walking. At this point, he explained, "…you could say that I was continuing to, as I said, develop grounds, and sometimes to bridge the gap it could be whether there is suspicion of alcohol or reasonable probable grounds for the arrest for impaired, and it's not unusual for someone who may be impaired may be unsteady on their feet."
[20] Later on, apparently sensing a brewing imputation that he had did not made the breath demand "as soon as is practicable" after forming his grounds, PC Kotsopoulos testified more specifically that he had not yet formed his grounds for arrest when he directed the defendant to exit his vehicle; he was very clear that those grounds crystallized after the defendant was out of the vehicle when he purportedly observed the defendant being "slightly unsteady on his feet".
[21] Then, after PC Kotsopoulos' evidence that he observed unsteadiness had been undermined in the course of further cross-examination, counsel returned to the topic:
Q. You already told us that you didn't conclude that you had sufficient grounds until after he walked to your vehicle, correct?
A. No. I'm going to disagree with that. I think I need to explain a little bit more about this in particular. I feel like I haven't elaborated maybe enough on it. In terms of sufficient grounds, in terms of like the investigation and investigating an impaired driving, specifically we'll refer to Mr. Procyk here, the grounds are continual. I believe even after a decision is made to make the arrest, that grounds are still collected even after the arrest is made as part of the investigation. In terms of possibly going -- let's say if it was hypothetically an over 80, there could be grounds even after the arrest that would change it into an impaired, that there could be sufficient enough grounds down the road even after the arrest. I feel like the term "not sufficient grounds to make an arrest" is inaccurate. I don't want to say that because I don't believe that's -- that's not -- that was not the case. With what the witness had provided with the physicals that Mr. Procyk displayed, I could have gone with -- with an impaired arrest off the hop. I'd like to say it that way. However I think it would be prudent to continue the investigation. I'm not going to call it wasted time, as you suggested, and it wasn't a great amount of time that something as simple as having him step out of the car to take a look at him and a different walk briefly which is a very short amount of time to continue obtaining grounds. At that point, I made my decision that I was going to arrest at that point. I could have made the arrest slightly earlier, a minute earlier possibly, however gaining more grounds I felt was more prudent as an officer in investigating this -- this particular impaired to have more evidence at the time in that short window there, I thought -- I felt was more prudent, and but in terms of -- I want to disagree with you on that in terms of not having sufficient grounds. I don't agree with that in terms of up to that point, not having sufficient grounds before he came out of the car.
[22] When PC Kotsopoulos was then confronted with the obvious contradiction between this answer and testimony he had given just minutes earlier, Crown counsel (not Mr. Hsiung) objected that he had not in fact testified his grounds were only formed after watching the defendant walk. Counsel was directed to hold off on further cross-examination on the issue until the next day so that counsel could both listen to the audio recording of the testimony in the meantime. When the cross-examination resumed the next morning, this was the exchange:
Q. So, officer, just going back to an area we sort of ended off with yesterday, my suggestion to you, and I understand from your evidence is that when you asked the accused to exit his vehicle you had not yet determined whether you had a reasonable suspicion which would give rise to a screening device demand, or whether you were going to then go further and you were going to have reasonable and probable grounds to be able to make an Intoxilyzer demand. Would that be accurate?
A. No. If I may clarify the point? In conducting the investigation it was my decision to continue gathering evidence, and at no point did I ever consider that there was a line that would have to get up to arrest on reasonable and probable grounds and prior to that line it would only be suspicion. Prior to Mr. Procyk exiting the vehicle, I believed there was sufficient grounds. I did have reasonable and probable grounds to arrest him for impaired operation, however, there's no -- I believed in my mind there was no given point where I had to stop my investigation and arrest. I continued gathering evidence on top of what I believed was already enough, and that's why I asked him to get out of the vehicle. So, at that point, to answer your question of him getting out of the vehicle, I did believe there was enough grounds to -- affect an arrest, however I did not feel it was a necessity to rush through the arrest, and I felt it was prudent to continue the investigation albeit not waste time and by that, I mean the fact that he would get out of the vehicle and simply stand and walk to my cruiser would not be a waste of time. So, at that point, and prior to that point, yes, I felt that there was sufficient grounds for -- reasonable and probable grounds for arrest, however I did ask him to get out of the vehicle after he tried to, and subsequent to that and up to the point where he walked back to my cruiser, that's when I made the determination myself to perform the arrest.
Q. So do you recall telling us yesterday that you were still developing your grounds when you asked him to exit the vehicle?
A. Yes. I was continuing the grounds, however I didn't specify that at the time there wasn't enough grounds is what I'm trying to get at.
Q. I suggest to you what you said yesterday was that you hadn't yet made a determination whether it was reasonable suspicion or reasonable grounds. Do you remember saying that yesterday?
A. I'm trying to clarify the point on that, is what I'm getting at now, and what I meant was I hadn't made the determination whether I was to arrest at that point or not.
Q. Why did you introduce the screening device into the conversation yesterday?
A. So when I was introducing that idea was that at some points in an investigation there's only a short amount of time to collect evidence, like, for example, during a ride spot check. It's a short period of time that only suspicion may be the only thing available at the time, so when they have advised they had a drink and that's merely all that I would have, and therefore that would be a reasonable suspicion, and that would lead me to use the screening device, and it wouldn't be prudent to pull someone and arrest them for impaired, however in this particular case, as the investigation progressed, it surpassed that point for me, and I was just merely trying to describe – I don't want to use the word "continuum" but the idea that as an investigation progresses it could progress past the idea -- past the concept of -- of suspicion and move into reasonable and probable grounds. But at to point during the investigation yesterday -- sorry, yesterday, pardon me, at no point during the investigation, during this occurrence did I feel that I had to use the roadside screening device. I was merely trying to describe that concept, that -- as you build up evidence and gather evidence you're forming grounds past that point of using the screen device, and during this investigation it was well past that, and I continued to gather evidence past the point where I felt it was – there was reasonable and probable grounds, and again, there was no reason to rush. I felt that it was prudent for me to get him out of the vehicle and assess his balance and get him to walk to my cruiser. I don't think that was a waste of time at all. I thought it was to be more thorough in trying to do that, and to assess his balance. So, if I wasn't very clear, I apologize yesterday on the point, and I hope that I've clarified that now.
Q. I'm suggest you were clear, officer, and you've changed your evidence.
A. I don't believe I've changed my evidence. I'm just merely going by what I have in my notes, and I'm trying to be as clear as possible now that it's obviously become a point in issue, so as best as I can, so again, I apologize if I wasn't clear yesterday, as clear as I could have been, but you asking me now, and I'm clarifying it.
Q. I'm suggesting you told us yesterday, and I put a question to you, you just told His Honour less than a minute ago that your continuing, you had a determination about whether it's reasonable suspicion or reasonable grounds, and I asked you: "Do you remember saying that a few minutes ago." And your answer was: "Yes, I do." Do you recall that evidence?
A. Okay, I do, I do.
Q. And my next question I put to you: "And that's because you were still deciding where you were on that continuum, correct?" And your answer was: "Right. I'm continuing my investigation is what I'm trying to get at." Do you recall that evidence?
A. Right. I do recall that.
Q. The next question was: "So at that point where you asked him to get out of the vehicle, you had not yet determined -- you had not determined yet whether it's a reasonable suspicion and would be using a screening device or had reasonable and probable grounds and would arrest him for impaired?" Your answer was: "Have I -- and you're asking me did I determine at that point?" Do you recall that evidence?
A. I'm recalling it yeah, okay.
Q. And the next question is: "Yes. You hadn't determined it at that point?" And your answer was: "No, I had not -- I hadn't made that determination yet." Do you recall that evidence?
A. I do, and what I was -- I guess it's up to interpretation now. What I meant was I hadn't decided whether I was going to arrest at that point or not as not -- and not to think that there wasn't enough evidence to arrest is what I'm getting at. So it was my decision to arrest rather than that point of was there enough evidence to arrest. I think that's what we're getting at here.
Q. Just to be -- the next question was, and I think we're just continuing on that same paragraph: "No, I hadn't made that determination yet." You went on to say: "The idea was to sink into the investigation." - I'm not sure if that's correct - "Continue to develop even more grounds. There wasn't a line or limit yet as to what if I developed enough a roadside screening device that I would simply stop and cut things off because it's used to be more than just mere suspicion and I have -- and I had enough grounds for RPG for arrest for impaired. I would continue with that." Do you recall that evidence?
A. I do. Okay.
Q. And then shortly after that the question was put to you: "It's clear you hadn't made the determination yet between screening device or arrest for impaired." And your answer was "yes". Do you recall that?
A. I do and, like I said, I'm trying to -- I'm trying to clarify that, and what I was getting at was and what I'm trying to clarify now, I'm trying to get the idea across that I had passed that point of using the screening device or even thinking about it because there was more than mere suspicion. I hope I'm getting that point across. I'm trying to clarify that as best I can, and I tried to use that analogy earlier about just it's somewhat like a R.I.D.E. Program but, at this point, given the amount of evidence that I had gathered even prior to asking him to get out of the vehicle was enough for an arrest.
Q. I'm suggesting to you, and I take it you're going to disagree and I'll move on, that at the time you asked him to get out of the vehicle you had not yet formed your grounds to arrest him, you didn't think you had enough to arrest him for impaired, and but for when you said the unsteadiness and the unusual gait you would have not have grounds to arrest him for impaired?
A. That's not true, and I didn't use the words "unusual gait", I just used the words "sway" that he had. When he was standing up he was swaying, so but no, I do not agree with you on that.
Q. You didn't say there was something unusual about his gait as well, about his walking?
A. I didn't use that term. You had brought that up, gait pattern, so I said his -- he -- I didn't say "unusual gait", I said "He had to focus and he moved very slowly". That's the terminology I used.
Q. And it wasn't until after you have him walk to the vehicle at that point you had your grounds to arrest him?
A. That I made the decision to arrest. I did have plenty of grounds even prior to that.
[23] It may well be that PC Kotsopoulos in fact did have both subjective and objective reasonable grounds for arrest by the time he asked the defendant to exit his vehicle. But this is hardly the point. I find it disturbing that an officer would so flagrantly change his evidence on an important point, very likely in response to his perceptions about the direction of the cross-examiner's questioning, attempt to pass the shift off as a "clarification" and refuse to acknowledge it even when the inconsistent testimony was put to him verbatim. "I don't believe I've changed my evidence", he initially claimed, before moving to "I guess it's up to interpretation now"; the vicissitudes in this officer's evidence on this point were anything but "clarifying".
[24] PC Kotsopoulos' purported observations that the defendant had glossy eyes and was unsteady on the feet were contradicted by other witnesses, including PC Ziccardi. His contention that the short delay before the defendant pulled over was indicative of impairment was a baseless surmise that further undermined my confidence in his ability and/or willingness to evaluate investigative information in a reasonable, open-minded and logical manner. I place no weight on any cited ground requiring me to rely on PC Kotsopoulos' subjective impressions or his ability to logically relate his observations to the proposition the defendant was or was not impaired.
[25] As an example of the latter, I do not accept PC Kotsopoulos' evidence that the defendant's inability to immediately produce his license was indicative of impairment. The defendant's explanation that he was not carrying a wallet and had $2,000 in cash and various loose papers and cards, and that it was difficult to see in the dark, seemed reasonable enough to me, and it was not shaken in cross-examination. But even were it otherwise, I would not rely on PC Kotsopoulos' interpretation because I have no confidence in the accuracy of his reportage or that his assessment of the event would be fair and balanced.
[26] PC Kotsopoulos testified dispatch advised him the 911 caller had reported the suspect vehicle "was weaving, and it was speeding in the speed of about 120 km/hr…" As PC Kotsopoulos acknowledged, it is not uncommon for drivers to briefly weave due to cell phone usage or some similar distraction and there is nothing remarkable about driving 120 km/hr on a 400 series highway, especially in the middle of the night when traffic was presumably very light. The odour of alcohol and vague (and in at least one respect, innocuous) report as the officer received it from dispatch did not establish the requisite objective basis for an arrest and s.254(3) demand. The Criminal Code scheme provides officers in this situation with an intermediate investigative tool, the approved screening device, which, on the evidence, the officer should have used in this case. The defendant's s.8 and s.9 Charter rights were infringed.
(b) Section 10(b)
[27] The defendant alleges his s.10(b) rights were infringed because he was denied privacy during his phone call with duty counsel at the Aurora OPP detachment. He testified he could hear Constables Kotsopoulos and Ziccardi "chatting back and forth" in the hallway outside the small phone room and felt he had to talk quietly and with his back turned to the door to avoid being overheard and as a result "just didn't have the privacy asked some of the questions I want to ask". When PC Kotsopoulos asked if he was satisfied with the legal advice he received, the defendant replied that he was.
[28] The right to retain and instruct counsel implies the right to do so in privacy which is essential to maintain lawyer-client privilege and uninhibited consultation: R v Playford; R v Gilbert; R v McKane. The defendant bears the burden of proving an actual or reasonably apprehended breach of his privacy during his consultation with counsel: R v Cairns; R v Burley; Playford, supra, p.158. Detainees have duty to be reasonably diligent in the exercise of their s.10(b) rights but are under no specific duty to complain about a perceived lack of privacy.
[29] While I found much of the defendant's trial testimony credible, I did not find this particular claim persuasive. I accept he could hear the two officers conversing outside in the hall, but this does not establish he reasonably believed the officers were overhearing what he was saying to duty counsel. The defendant testified "I just tried to talk quieter so they didn't hear me and turn my back towards him so I just – so they didn't hear what I can say – I'm saying and asking [emphasis added]."
[30] Mr. Price submits I should accept the defendant's evidence because it was not challenged in cross-examination. The failure to cross-examine on a determinative issue is usually very significant, and it is true Crown counsel did not directly challenge the defendant's evidence that he could hear the officers' voices in the hallway outside the booth. The real issue, however, is not whether he could hear the officers bantering in the hallway but whether he actually and reasonably perceived a lack of privacy that inhibited him in speaking to duty counsel, and Mr. Hsiung did challenge the defendant about that in the following instructive exchange:
Q. Okay. And you said you didn't know you had a right to complain, right?
A. Yes.
Q. And that you couldn't speak freely.
A. Yes.
Q. Now, you'd agree that upon exiting the room P.C. Kotsopoulos asked you 'are you satisfied with the advice you received?', right?
A. Yes.
Q. And you didn't think that at that time you could've raised an issue about any concern about privacy?
A. No, because at that point I wasn't concerned with doing the breathalyzer or anything. I didn't believe I was impaired so I was somewhat satisfied.
Q. Sorry, can you say that again? You were - can you just clarify what you said.
A. Can you ask your question one more time, please?
Q. PC Kotsopoulos...
A. Yeah.
Q. ...asked you 'are you satisfied...
A. Satisfied.
Q. ...with the advice you received?' I'm suggesting to you at that point you could've raised the issue of - the whole privacy issue with him then, couldn't you have?
A. I didn't know if it was my right to do so. I - I did not know.
Q. You didn't think - you didn't feel at that time you could've raised that issue with P.C. Kotsopoulos?
A. No.
[emphasis added]
[31] There was a dramatic shift in the defendant's demeanour immediately after he gave the underlined answer above and it was a giveaway; it was very evident to me that Mr. Procyk instantly regretted his answer and then seized on the opportunity to ask to hear the question again to try and undo the damage. I do not accept Mr. Procyk felt the officers were interested in or capable of overhearing him or that his consultation with duty counsel was circumscribed as a result. The fact the officers were conversing with each other suggests their focus was elsewhere.
[32] Accordingly, I find no infringement of s.10(b).
(c) Section 24(2)
[33] In applying s.24(2) of the Charter I must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard for (i) the seriousness of the Charter-infringing state conduct; (ii) the impact of the breach on the Charter-protected interests of the accused; and, (iii) society's interest in the adjudication of the case on its merits: R v Grant, 2009 SCC 32; R v Harrison, 2009 SCC 34.
i. Seriousness of the Breach
[34] As the Court of Appeal has observed, "[p]olice conduct can run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard for Charter rights": R v Kitaitchik, para. 41.
[35] The odour of alcohol together with what the officer was told about the 911 report fell short of reasonable grounds, but not by much. All other things being equal, arresting on the basis of a good faith but mistaken assessment of grounds falling just short of the requisite standard would fall on the less serious end of the spectrum. But while good faith reduces the seriousness of a Charter violation, "neither negligence nor wilful blindness by the police can properly be characterized as good faith" and "a significant departure from the standard of conduct expected of police officers will lean this aspect of the inquiry in favour of exclusion of the evidence": R v Rehill, 2015 ONSC 6025 at para. 28.
[36] What took place in this case was "a significant departure from the standard of conduct expected of police officers", not a "good faith but mistaken assessment of grounds". Moreover, Charter-infringing police conduct is rendered especially serious when compounded by efforts to mislead the due administration of justice, as the Supreme Court of Canada explained in R v Harrison, 2009 SCC 34, para. 26:
I note that the trial judge found the officer's in-court testimony to be misleading. While not part of the Charter breach itself, this is properly a factor to consider as part of the first inquiry under the s. 24(2) analysis given the need for a court to dissociate itself from such behaviour. As Cronk J.A. observed, "the integrity of the judicial system and the truth-seeking function of the courts lie at the heart of the admissibility inquiry envisaged under s. 24(2) of the Charter. Few actions more directly undermine both of these goals than misleading testimony in court from persons in authority" (para. 160).
See also, R v Pino (sub nom R v Edwards), 2016 ONCA 389, para. 102.
[37] In R v Morelli, 2010 SCC 8, para. 102, Fish J. observed:
The repute of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct. Police officers seeking search warrants are bound to act with diligence and integrity, taking care to discharge the special duties of candour and full disclosure that attach in ex parte proceedings. In discharging those duties responsibly, they must guard against making statements that are likely to mislead the justice of the peace. They must refrain from concealing or omitting relevant facts. And they must take care not to otherwise exaggerate the information upon which they rely to establish reasonable and probable grounds for issuance of a search warrant.
We are bound to accept the trial judge's finding that there was no deliberate misconduct on the part of the officer who swore the Information. The repute of the administration of justice would nonetheless be significantly eroded, particularly in the long term, if such unacceptable police conduct were permitted to form the basis for so intrusive an invasion of privacy as the search of our homes and the seizure and scrutiny of our personal computers.
[38] Fish J. was referring to the duty of candor in the ex parte search warrant application process, but candor is at least as important in an ex post facto judicial review of a warrantless arrest or search; in either instance "[t]he repute of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct" in the form of misleading evidence, whether given deliberately or through unacceptable negligence.
[39] Accordingly, I find the Charter breach in this case was serious and this strongly weighs in favour of exclusion.
ii. Impact of the Breach
[40] Mr. Price submits the impact of the breach on the defendant's Charter-protected interests extends beyond his informational and bodily privacy interest in the breath samples to include the deprivation of liberty entailed by his warrantless and groundless arrest. Relying on the following passage from R v Jennings, 2018 ONCA 260, the Crown argues the impact of the breach is limited to the minimal bodily and informational privacy interests directly engaged by the seizure of the breath samples [paras. 27 to 32]:
The second Grant factor addresses the impact of the breach on the interests of the accused. The trial judge discerned two competing lines of authority setting out the methodology for assessing the seriousness of the impact of the accused in breath sample cases. In the line followed by the trial judge, led by Au-Yeung, the trial judge is to consider not just the impact of the administration of the breath sample procedure, which is itself minimally intrusive, but the entirety of the procedure faced by the accused after arrest. In this case, it would include the initial detention, the respondent's being placed in the back of a police cruiser and transported to a police station, and detention at the police station for a substantial period of time. The trial judge, in keeping with the Au-Yeung line of authority, viewed the entirety of procedures as constituting a serious impact on the respondent, and strongly indicating exclusion of the evidence.
The second line of authority rejects the Au-Yeung approach and would limit the second Grant factor to addressing the intrusiveness of the breath sample procedure itself: for example, Molakandov; R. v. Ramsammy, 2013 ONSC 7374; R. v. Marchi, 2016 ONCJ 757; R. v. Ho, 2014 ONSC 5034, rev'd on other grounds 2015 ONCA 559.
Much of the debate between these two lines of cases focuses on the significance of statements in Grant, in which the Supreme Court identifies breath samples as a central or paradigmatic example of a minimally intrusive search: see paras. 106-111. Although, as the respondent argued, the proposition that breath sample procedures are minimally intrusive is simply dicta in Grant, it should be noted that the statement was no mere throwaway line. The Supreme Court chose the example of breath sample procedure as an apt and economical means of illustrating the concept of a minimally intrusive search. And the Court assuredly did so in the knowledge that most formal demands for breath samples would be accompanied by an arrest and by all of the accompanying incidents itemized by the trial judge.
This reading of Grant is consistent with other judgments of this court, such as R. v. Manchulenko, 2013 ONCA 543, 116 O.R. (3d) 721, where Watt J.A. refers to "the general rule with respect to the admissibility of breath samples due to their non-obtrusiveness" (at para. 100) and, citing Grant at para. 111, says that "as a general rule, reliable evidence obtained by less egregious and invasive intrusions into privacy, bodily integrity and dignity, such as the taking of breath samples, may be admitted."
Similarly, in R. v. Guenter, 2016 ONCA 572, 350 O.A.C. 318, Brown J.A. notes, at para. 98, that "[t]he collection of the breath samples amounted to no more than a minimal intrusion upon the appellant's privacy, bodily integrity and human dignity: Grant, at para. 111."
To find otherwise would be to create a categorical rule that s. 8 breaches in breath sample cases automatically favour the exclusion of evidence under the second Grant factor, since drivers in these cases are almost invariably arrested and taken to the police station to provide further breath samples. This would be contrary to the approach taken by the Supreme Court in Grant and to a sound characterization of what is at stake for the individual in providing a breath sample. Accordingly, it was an error for the trial judge, and the SCAJ, to have followed Au-Yeung in this respect and not to have found the impact of the breach to have been minimal, favouring admission.
[41] Mr. Price submits this passage is obiter dicta and I need not follow it. I agree it is obiter – having found no s.8 breach, the Court of Appeal did not need to decide the s.24(2) point to dispose of the appeal – but it is also a clearly articulated holding on a point that had divided lower courts and was fully argued by the parties. The Court of Appeal did not include it in the judgment for academic interest but because it wished to settle this broadly significant question of law as was its prerogative as the second-level appeal court in summary conviction matters: Jennings, para. 22; R v RR, 2008 ONCA 497, paras. 25-37. Jennings established a binding precedent extending beyond its formal ratio decidendi to encompass "the wider circle of analysis which is obviously intended for guidance and which should be accepted as authoritative": R v Henry, 2005 SCC 76, para. 57.
[42] The context for the decision is pertinent in assessing its intended scope, however. The lower courts in Jennings found a breach that was quintessentially minor and technical (so minor, in fact, that the Court of Appeal adjudged it to be non-existent). Also importantly, the notional breach in Jennings directly related to police compliance with the statutory breath sample acquisition scheme.
[43] The Court of Appeal overruled Au-Yeung to ensure there was no "categorical rule that s. 8 breaches in breath sample cases automatically favour the exclusion of evidence under the second Grant factor, since drivers in these cases are almost invariably arrested and taken to the police station to provide further breath samples [emphasis added]": Jennings, para.32. In the portions of Grant referred to in Jennings, the Supreme Court explained how a similar anomaly under the Collins/Stillman s.24(2) test wherein "breath sample evidence tendered on impaired driving charges has often suffered the fate of automatic exclusion even where the breach in question was minor and would not realistically bring the administration of justice into disrepute" helped convince it to adopt a new "flexible test based on all the circumstances, as the wording of s. 24(2) requires": Grant, paras. 106-107 [emphasis added].
[44] Bearing this context in mind, I do not read Jennings as creating a categorical rule that Charter breaches minimally impact Charter-protected interests in breath test cases. This would only replace one inflexible rule with another. Rather, as courts applying Jennings have generally concluded, it was meant to apply to Charter breaches directly related to transgressions of the statutory breath scheme: R v Mahipaul, 2018 ONCJ 339; R v Deokaran, 2018 ONCJ 704, paras. 42-46; R v Barr, 2018 ONSC 2417, paras. 48-59; R v Chiefari, 2018 OJ 4419 (CJ), paras. 91-945; R v Manuel, 2018 OJ 2955 (CJ); R v Wijesuriya, 2018 ONCJ 211, paras. 58-66.
[45] The breach itself minimally impacted the defendant's informational and bodily privacy interests. But misleading testimony from a police officer affronts the integrity of the judicial process and, as such, engages the defendant's Charter-protected fair trial interest: R v O'Connor, paras. 61-65. This dimension of the Charter-infringing conduct is not directly linked to non-compliance with the statutory scheme and, arguably, it amplifies the overall impact of the breach on the defendant's Charter-protected interests. On the other hand, in both Harrison and Morelli the Supreme Court addressed misleading testimony under the first branch of the Grant test only. I will return to this point below.
iii. Societal Interest in Adjudication on the Merits
[46] The truth-seeking function of the trial would, of course, be better served by admitting the evidence as it is both reliable and essential to the proof of the case: Rehill, supra, para.38.
iv. Balancing the Three Grant Criteria in this Case
[47] The question to be decided in balancing the three Grant criteria is whether "[t]he strength of the claim for exclusion under s. 24(2)" – which "equals the sum of the first two inquiries identified in Grant" – exceeds the countervailing pull of "[t]he third inquiry, society's interests in an adjudication on the merits": R v McGuffie, 2016 ONCA 365, paras. 62-63.
[48] The breach in this case was serious. The impact of the breach may have been magnified by the misleading testimony but even if the impact of the breach is gauged as "minimal", "the sum of the first two inquiries identified in Grant" still exceeds the countervailing pull of the third branch of the Grant test and so I need not decide the point. Jennings does not create an automatic rule against exclusion of breath test results, even for Charter breaches arising directly from non-compliance with the breath test scheme. In this regard, I respectfully adopt the following conclusion expressed by De Fillipis J. in R v Howie, 2018 ONCJ 259, para. 36:
… Jennings does not create an automatic rule of inclusion for evidence of breath tests. However, I do interpret the decision to mean…that will usually be the correct conclusion. As such, the practical reality is that in over 80 cases, the decision to exclude or not, will be strongly influenced by the step one analysis. In this regard, the result is not that breath samples will be excluded where the Charter breach is minor but, rather, that they will be included unless it is shown to be serious. This change in emphasis appropriately focusses the inquiry on step one and avoids confusion with step two. In my view, this reflects and respects what the Court of Appeal intended in Jennings when it rejected the Au-Yeung approach and accepted the competing line of authority that limits the second Grant factor to addressing the intrusiveness of the breath sample procedure itself. [emphasis added]
See also, R v Mahipaul, 2018 ONCJ 339 paras. 24-25.
[49] As the Supreme Court instructed in Harrison, "the integrity of the judicial system and the truth-seeking function of the courts lie at the heart of the admissibility inquiry envisaged under s. 24(2) of the Charter. Few actions more directly undermine both of these goals than misleading testimony in court from persons in authority": Harrison, supra, para. 26. In the final analysis, the admissibility determination turns on "whether admitting the evidence would send the message to the public that courts condone deviations from the rule of law by failing to dissociate themselves from the fruits of unlawful conduct": Rehill, para. 28. In the circumstances of this case, I conclude, admitting the evidence would have that effect and it is therefore excluded under s.24(2) of the Charter.
(d) The Impaired Operation Charge
[50] The evidence of impaired operation consists of the 911 caller's testimony concerning the momentary instances of bad driving he observed and the odour of alcohol. The defendant's evidence explaining the bad driving was both intrinsically plausible and confirmed to a significant extent by the defence witnesses and the phone records. Accordingly, I am not satisfied beyond a reasonable doubt that the defendant's ability to operate a motor vehicle was impaired to the slight degree described in R v Stellato.
[51] Both charges are therefore dismissed.
Released: December 6, 2018
[Oral Decision released October 17, 2018]
Signed: Justice John McInnes