Court Information

Court: Ontario Court of Justice Date: December 6, 2018 Region: Central East Region

Between: Her Majesty the Queen — AND — Taylor Melmer

Before: Justice F. Javed

Heard: November 13, 14, 2018

Reasons for Judgment Released: December 6, 2018

Counsel

S. Thompson — counsel for the Crown

A. Richter — counsel for Mr. Melmer

Judgment

F. JAVED J.:

A. Introduction

[1] On October 15, 2017, the defendant Taylor Melmer was investigated by Police Constable Jamie Pogson ("PC Pogson") of the Durham Regional Police Service on the driveway of his home. He was charged with impaired care or control and taken to a police station where he provided two samples of his breath in excess of the legal limit. He was subsequently charged with exceed 80mgs contrary to the Criminal Code.

[2] Mr. Melmer pled not guilty to both offences. At trial, he advanced some arguments under the Charter of Rights and Freedoms ("Charter"). Specifically, he argues that PC Pogson had no lawful authority to detain him on his driveway which resulted in an arbitrary detention under s.9 of the Charter. This lead to a separate breach of his rights under s.8 of the Charter as the detention and arrest were unlawful due to a lack of reasonable grounds for the arrest. As a remedy, he seeks to exclude the observations made by PC Pogson and the two breath samples under s.24(2) of the Charter.

[3] The parties agreed to blend the evidence on the Charter and trial issues.

[4] The Crown called PC Pogson and tendered the Certificate of a Qualified Breath Technician (COQBT) which has been provisionally entered as Exhibit A subject to the Charter ruling.

[5] Mr. Melmer testified on the Charter issues only. The defence also tendered the booking and breath room videos as Exhibit 1.

[6] This case raises four issues:

(a) Was Mr. Melmer arbitrarily detained in violation of s.9? As a subset of this issue, I must determine:

(i) Was the detention rendered unlawful because PC Pogson detained and investigated the "wrong person"?

(ii) Was the detention rendered unlawful because the detention occurred on a private driveway?

(b) Did PC Pogson have sufficient grounds to arrest Mr. Melmer for the offence of impaired driving?

(c) If there were Charter violation(s), should the evidence be excluded under s.24(2) of the Charter?

(d) Has the Crown proven that Mr. Melmer's ability to drive a motor vehicle was impaired by alcohol?

B. The Evidence

[7] PC Pogson has been a police officer for 19 years. On October 15, 2017, he was in uniform on general patrol and operating a marked SUV in the region of Durham. He has investigated drinking and driving offences in the past.

[8] A theme in Mr. Richter's submissions was that I should afford little weight to the evidence of PC Pogson given the poor quality of his note taking and memory of events. Mr. Richter critiqued the officer as being "cavalier" and "unprofessional". Given the seriousness of this allegation, I will address this argument first.

[9] The genesis of this criticism arose from PC Pogson's evidence that he attended trial without the benefit of his original notebook. In cross-examination, PC Pogson said he made a photocopy of his original notes before they were scanned into the police database. In the interim, he seemed to have misplaced his original notebook and spent a little time looking for them but gave up as he had a copy of the notes. In his mind, this was sufficient. PC Pogson said he didn't keep any "scratch notes" of the investigation, but out of an abundance of caution, I ordered him to make best efforts to look for the notebook overnight when his evidence was set to continue. Given the passage of time, it was prudent to make sure there were no late entries in the notebook that went unaccounted on the photocopied notes. The following day, PC Pogson complied with my order and attended with his original notebook. There were no late entries or scratch notes. According to him, they coincided with his photocopied notes.

[10] In submissions, Mr. Richter conceded that nothing of substance turned on this except what he said was an "unprofessional" attitude. In addition, Mr. Richter made a two-prong complaint of PC Pogson's note-taking. First, the notes were made late, well after the events had occurred and thus were unreliable and second, they contained significant omissions of various observations.

[11] It is axiomatic that note-taking serves an important function. The purpose of note-taking is to fulfill a statutory duty of police officers to memorialize interactions with members of the community. An ancillary function is to assist officers in testifying by serving as a tool to refresh their memory of events. In some cases, notes take on a more important function, for example when there is a violent clash between parties, officers are required to take careful notes of the force they used. Notes are not meant as a substitute for evidence. In R. v. Gill, [2015] O.J. No. 6787 (Ont. Sup.Ct.), Mr. Justice Casey Hill, stated the following at para. 46:

I agree with the statement of Durno J. in R. v. Machado, 2010 ONSC 277, [2010] O.J. No. 387 (S.C.J.), at paras. 121-122: While officers' notes are provided as part of disclosure, there is no law that I am aware of that an officer must record everything he or she did or saw in their notebook to comply with the Crown's disclosure obligation. While some ... have attempted to elevate the judgment in R. v. Zack, [1999] O.J. No. 5747 (O.C.J.) to a statement that if an event or observation is not in the notes, that it did not occur, that is not what the judgment says. Indeed, there are numerous authorities where events or observations that are not noted have been accepted: R. v. Thompson (2000), 151 C.C.C. (3d) 339 (Ont. C.A.); R. v. Bennett [2005] O.J. No. 4035 (S.C.J.).

[12] The law has also developed to account for circumstances that were a police officer omits a significant fact, it may impact the credibility and reliability of her testimony depending on the circumstances of the case. In R. v. Antoniak, [2007] O.J. No. 4816 (Ont. Sup. Ct.), Justice Ferguson sitting as an appeal Court noted at paras. 22-24:

22 In deciding whether to accept an officer's testimony, the trier of fact may consider whether the officer recorded his or her observations. Certainly the absence of a note is a fair issue for cross-examination and may support an inference that the unrecorded event did not take place. However, the fact that there is no mention of an event in an officer's notebook does not necessitate a finding that it did not take place. For example, in R. v. Thompson (2000), 151 C.C.C. (3d) 339 (Ont. C.A.), the officer had no specific recollection of having checked for obstructions in the mouthpiece to ensure that the device was in proper working order and had no note to that effect. In asserting that she had in fact carried out the necessary checks, the officer relied on her ordinary practice. The trial judge accepted her evidence and stated as follows:

My view of her evidence is that matters transpired as she related them, that she simply followed her usual practice in connection with unwrapping and certification of the mouthpieces and that there was no need to make a note to that effect. Notes are only made to assist the recollection. I find that on this occasion she did not depart from her usual practice.

24 It should be remembered that an officer's notes are not evidence, but are merely a testimonial aid. Trial judges routinely tell officers on the witness stand that they may use their notes to refresh their memory, but that they must also have an independent recollection of the events. To elevate the absence of a notation to a mandatory finding that the event did not occur would eliminate the officer's independent recollection from the equation. The notes would become the evidence.

25 The significance of an omission in an officer's notebook, just like the significance of an inconsistency in a witness's testimony, must be determined by the trier of fact on a case-by-case basis.

[13] In view of the above, I have evaluated Mr. Richter's criticisms of PC Pogson's note-taking. While I tend to agree that in some cases, PC Pogson's notes could have been more detailed, it does not mean I should not accept any of his evidence. Indeed, much of his evidence on material issues was corroborated by Mr. Melmer who testified on the voir dire. It also does not mean that PC Pogson was "unprofessional" and "cavalier". In fact, I would find the opposite. He complied with my order to retrieve his original notebook. When the law surrounding the use of police notes is taken in context, there is nothing unprofessional with misplacing a notebook. For example, it would have been perfectly lawful for PC Pogson to use his photocopied notes to aid his memory if he chose to. Of course, it is always preferred that police officers retain their original notes but PC Pogson simply misplaced it. He then found it. No harm was occasioned. The professional criticisms of PC Pogson have no merit. As I will explain, this case doesn't turn on the credibility or reliability of PC Pogson's evidence.

The Police Dispatch

[14] At approximately 2:27 am, PC Pogson received a radio call from communications and learned there was an impaired driver leaving the Bitmore Tap and Grill in Courtice. The alleged impaired driver was described as male/white with a beard, wearing a baseball hat backwards and wearing a hoody. The driver left in a Pontiac Sunfire with marker BRJW920.

[15] PC Pogson testified he decided to attend at 5 Sunset Rd. in Clarington. There was some confusion as to whether he was given the address by dispatch or ran the license plate and discovered the address on his own as this was not recorded in his notes. In my view, this was not an important omission because the important point is that he attended at 5 Sunset Rd. without first attending at the bar.

[16] Mr. Melmer testified he went to the Bitmore Tap and Grill at 10:00 pm. He was with some friends and drank a couple of pints of Bud Light beer. He had consumed 2 "Pbast" bottles of beer at home prior to attending the bar. The parties left the bar around 2-2:30 am.

[17] He had planned not to drive home as his friend, Richard Hornby, had offered to be the designated driver. Mr. Hornby did not consume any alcohol and lived "around the corner" from his home in Clarington.

[18] Mr. Melmer said he felt "coherent" and "fine" when he left the bar with his friends. Despite feeling okay to drive, he stuck to the plan and let Mr. Hornby drive home. In cross-examination, Ms. Thompson suggested he let Mr. Hornby drive because he knew he was impaired. Mr. Melmer disagreed indicating "he was not impaired and felt very, very, little effect of alcohol". I accept this, but it means very little because people may subjectively feel "fine" but still be impaired for purposes of the law.

[19] Mr. Melmer added that the plan changed organically when Mr. Hornby decided he didn't want to drive Mr. Melmer home to his house in Clarington and then have to return to his residence in Bowmanville. It was late and Mr. Hornby was tired. Mr. Melmer said he agreed to simply drive himself home as he didn't feel impaired. He drove his vehicle along with two friends occupying the rear passenger seat.

[20] Mr. Melmer testified when he arrived on Sunset Rd., he noticed a police SUV a couple houses down from his home, facing east. The headlights of the SUV were activated.

[21] PC Pogson said he arrived at 2:33 am and parked his SUV approximately 15-20 meters or 45-60 feet away from the edge of the driveway. He did not activate his police lights and simply waited for the vehicle.

[22] In my view, this conflict is not important but given the delay in preparing his typed notes, I found Mr. Melmer to be more reliable on this point. Quite frankly, it also makes more sense that PC Pogson would need to activate his headlights, given the time of day, to determine that the vehicle he was looking for, had in fact arrived on Sunset Rd.

[23] In any event, there is no dispute that once Mr. Melmer parked his vehicle, PC Pogson immediately confronted Mr. Melmer after he exited the front seat. I accept that this happened around 2:44 am and took place on the driveway as Mr. Melmer was assisting his rear passengers to exit from the rear. Mr. Richter suggested PC Pogson pulled this time "out of thin air" which PC Pogson disputed. He was confident that he saw the vehicle pull and he looked at his watch, even if he didn't record it immediately in his notes. I accept this evidence.

The Investigation on the Driveway

[24] Mr. Melmer testified that PC Pogson immediately asked for his license, insurance and registration, then began to question him about alcohol consumption.

[25] PC Pogson said he began a conversation with Mr. Melmer and immediately smelled a strong odor of alcohol coming from his breath. He asked him where he was coming from and if he had anything to drink. Mr. Melmer responded he was in Courtice and had a couple of drinks. When asked how many, he said "none as he was the 'DD' which he understood to be a designated driver.

[26] PC Pogson added that he told Mr. Melmer he knew he had been drinking as he could smell alcohol emanating from his breath. At this point, Mr. Melmer said "he had one beer a while ago".

[27] PC Pogson admitted in cross-examination "he knew quite quickly that he [Mr. Melmer] didn't match the description [of the suspected impaired driver] but added, that this didn't mean it wasn't the same person. Viewed objectively, the only descriptor which matched the 911 dispatch was the fact that he was investigating a white male. Mr. Melmer was not wearing a hat, was not wearing a hoodie and did not have a beard. Mr. Richter says this is fatal to the Crown's case. I will explain below why I disagree with this assertion.

[28] After a brief police investigation on the driveway, Mr. Melmer was arrested for the offence of impaired care or control and transported to the police detachment. There, he provided two samples of his breath in excess of the legal limit. As noted, Mr. Richter tendered the breath room and parade video which depicts Mr. Melmer shortly after the arrest. Mr. Melmer was read his rights to counsel, cautioned and did not invoke this right. At approximately 4:35 am, Mr. Melmer was released on a promise to appear.

[29] I now turn to the specific legal arguments, starting with the complaint under s.9.

C. Analysis

(a) Was Mr. Melmer arbitrarily detained under s.9 of the Charter?

[30] Mr. Richter argues that Mr. Melmer was arbitrarily detained because a reasonable person standing in the shoes of PC Pogson ought to have known that he wasn't investigating the right person and should have ceased his investigation. It follows that he had no right to "investigatively detain" him and everything that followed, including the arrest and breath samples, was unlawful.

[31] Respectfully, Mr. Richter has misconstrued the legal effect of Mr. Melmer's detention. As I will explain below, Mr. Melmer was not investigatively detained.

[32] Section 9 of the Charter protects against detentions that are arbitrary. The onus is on Mr. Melmer to prove on a balance of probabilities that he was detained and that his detention was arbitrary.

[33] I'm satisfied that the evidence establishes that Mr. Melmer was "detained" within the meaning of the law but this does not mean it was arbitrary. A detention based on lawful authority is not arbitrary if the underlying law is constitutional.

[34] In the context of drinking and driving cases, stopping a vehicle to check for a driver's license, vehicle safety and sobriety of the driver is not arbitrary because it is based on legislative authority, including the Highway Traffic Act (HTA). Specifically, police officers have the lawful authority to briefly detain motorists for road safety reasons pursuant to s.216(1) and s.48(1) of the HTA. A traffic stop under these provisions does not require particularized grounds. It can be purely random provided it is a true HTA stop and not simply a ruse or a pre-text stop. The Supreme Court of Canada has clearly established that vehicle stops that might be random, contravene s. 9 of the Charter but are justified as reasonable limits under s. 1 of the Charter: R. v. Ladouceur, [1990] 1 S.C.R. 1257. See also R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3, at para. 41. Here, PC Pogson had authority under s.48(1) of the HTA to check on the sobriety of the driver given the 911 dispatch of an impaired driver. He also had authority under s.216(1) of the HTA to stop his vehicle as Mr. Melmer was driving the vehicle on a public roadway or "highway" before he parked in a private driveway. The evidence also establishes that Mr. Melmer was "driving" the vehicle before he parked, thus never ceased to be a "driver" for purposes of the HTA. A driver who is "in charge" of a motor vehicle has been interpreted to contemplate some past signification to avoid absurd results: R. v. Richards, [1999] O.J. No. 1420 (C.A.). In other words, Mr. Melmer was not immune from the reach of the HTA just because he was able to exit from his vehicle before he was investigated by the police. I conclude that PC Pogson was acting within lawful authority when he commenced his investigation into his sobriety.

[36] In addition to statutory authority, police officers also have a common law power to stop and detain motorists to carry out a sobriety check without a need for particularized grounds: R. v. Dedman, [1985] 2 S.C.R. 2. In R. v. Dillon (2006), 32 M.V.R. (5th) 13 (Ont. S.C.), Justice Molloy held: "once the officers are lawfully on the property, the principles in Dedman as to their common law powers are equally applicable in the parking lot as they would be on the adjacent lot". Police officers have to remain within their powers to ensure the detention remains lawful.

[37] To repeat, the actions of the police in stopping a vehicle under their authority at common law or by statute only constitutes an unconstitutional stop if the reason for the stop is unconnected to a highway safety purpose: R. v. Simpson (1993), 12 O.R. (3d) 182 (C.A.), 79 C.C.C. (3d) 482 at p.491. In other words, the detention must be related to legitimate highway purposes: R. v. Nolet, 2010 SCC 24.

[37] In this case, PC Pogson testified he was responding to a 911 call of an impaired driver which lead him to a specific address. He attended at that address and even according to Mr. Melmer, began a focused inquiry into his sobriety. This was accompanied with a request for documentation related to his driving privileges. In my view, PC Pogson had both the statutory and common law authority to detain him on his driveway, I'm also satisfied that the detention never exceeded its legal authority.

[38] Mr. Richter did not advance the argument that the detention was carried out on private property which might be another reason why PC Pogson had no lawful basis to detain his client. To be sure, I've considered this argument and conclude that PC Pogson's power to detain Mr. Melmer extended to the driveway. Binding authority has firmly established that where a police officer observes a motorist traveling on a "highway" or public roadway, the officer's authority under the HTA to effect a stop continues onto private property: R. v. Boughen, [2002] O.J. No. 4060 (C.A.) at para. 4. In this case, there's no controversy that PC Pogson saw Mr. Melmer's vehicle on Sunset Rd. before it entered a private driveway. He was therefore traveling on a "highway" immediately before he commenced the investigation. Mr. Melmer was immediately investigated as he exited the driver's side and was attempting to assist his rear passengers exit.

[39] In R. v. Clarke, [2005] O.J. No. 1825 (C.A.), the Ontario Court of Appeal considered a case in which the police followed the detainee in a private parking garage, where arguably one would have a higher expectation of privacy then a driveway. The summary conviction appeal court held that the police unlawfully entered the parking garage. Sharpe J.A. held that the doctrine of implied invitation applied and permitted entry. This doctrine holds that members of the public are given an implied license to pass over private property leading up to the point of access or entry where they have a lawful reason to seek the consent from a resident to enter the dwelling: R. v. Tricker (1995), 96 C.C.C. (3d) 198 (Ont. C.A.), leave to appeal to S.C.C. refused, 103 C.C.C. (3d) vi, [1995] S.C.C.A. No. 87. Here, PC Pogson did not enter Mr. Melmer's home but instead the interaction and arrest, took place on his driveway. In law, he was permitted to be on his driveway provided he was acting pursuant to lawful authority, which I have concluded he was.

[40] Mr. Richter's principal complaint seems to be that Mr. Melmer was unlawfully detained because PC Pogson detained the wrong person. In other words, it should have been clear to PC Pogson that Mr. Melmer didn't fit the description of the impaired driver from dispatch, thus there was no basis to detain and investigate him for a criminal offence.

[41] In my view, the Court of Appeal's decision in R. v. Gardner, [2018] OJ No. 3404 (CA) is a complete answer to this argument - in favor of the Crown's position.

[42] In Gardner, the police received a complaint of an impaired driver operating a green pick-up truck. The police ended up stopping Mr. Gardner who was driving a red pick-up truck, thus possibly, the wrong person. The police told Mr. Gardner they were looking for an impaired driver and were doing a sobriety check. In doing so, the police officer formed reasonable suspicion that Mr. Gardner had alcohol in his body and made an approved screening device demand. Mr. Gardner failed the demand and provided two samples of his breath in excess of the legal limit. In effect, the police stumbled on an unsuspected impaired driver, similar to what the Crown alleges happened here.

[43] Both the trial and summary conviction appeal court found Mr. Gardner was arbitrarily detained. In the Court of Appeal, Nordheimer J.A. held that both levels of court erred in finding a s.9 breach because the police had lawful authority under the HTA for the traffic stop and the subsequent investigation. At para. 25, he wrote in part:

25 Had the trial judge correctly characterized the reason underlying the stop of the respondent's vehicle, she would have concluded that it was not an investigative detention that would invoke s. 9 of the Charter and there was no breach of the respondent's rights under ss. 10(a) or 10(b).

[44] This case is no different. In Gardner, it was clear that the police investigated the wrong vehicle, let alone, the wrong driver. Nordheimer J.A. said the following which is apt in this case:

19 The purpose for which Constable Lieverse stopped the respondent's vehicle was to determine if the driver of the vehicle was impaired. The fact that Constable Lieverse stopped a vehicle, that was not the same vehicle for which he had a report of possible impaired driving, does not change the reason for the stop. The fact that Constable Lieverse fortuitously discovered another impaired driver is irrelevant to the legal analysis. Constable Lieverse had reason to believe that a person was operating a pickup truck while impaired. This informed Constable Lieverse's decision to stop the respondent's pickup truck to determine if the driver of the pickup truck was impaired. He had the authority to do so under s. 48(1) of the Highway Traffic Act. [Emphasis added]

In this case, PC Pogson testified he didn't immediately know he was investigating the wrong driver, even though the vehicle matched the information from dispatch. He stated it wasn't obvious to him that Mr. Melmer was the wrong person because clothing can be quickly removed. For example, a hoodie and a hat can be discarded. Moreover, as to the detail involving a beard, he said Mr. Melmer didn't have a long beard but in his opinion, a "5'o clock shadow" would also qualify as a beard.

[45] In my view, PC Pogson had ample basis to form a subjective belief that Mr. Melmer fit the description of a suspected impaired driver as intimated to him by dispatch. Not much time had passed since he received the information and objectively, the same vehicle parked at 5 Sunset Rd., the address he connected to the registered owner. There was no way for him to know before he started the investigation that somebody other than an impaired driver would be operating the motor vehicle. He would have to disbelieve the dispatcher which isn't reasonable. Conversely, if he had any reason to believe that the 911 caller identified the wrong car (not the wrong driver) that might have been a reason to question the information but that didn't happen. He followed the information to 5 Sunset Rd. and matched the car to the information. He approached the driver without knowing who he would speak to. There was nothing wrong with this. It's unreasonable to conclude he should have simply turned around at this point.

[46] The initial detention of Mr. Melmer was lawful and never became unlawful just because it morphed into a criminal investigation. I disagree with Mr. Richter that once he learned Mr. Melmer didn't match the description of the impaired driver, he no longer had a lawful basis to investigate him. Mr. Richter did not point me to any legal authority that stands for this proposition. Like Gardner, PC Pogson stumbled on a lawful investigation. There's no evidence that he targeted Mr. Melmer for unlawful reasons making the detention purely random and arbitrary. This is not a case where the description fit a passenger who was investigated. That might have raised different legal issues. It is unfortunate Mr. Melmer chose to drive home but this was not something PC Pogson knew or could have anticipated.

[47] Accordingly, I conclude that PC Pogson had lawful authority to detain Mr. Melmer on his driveway in order to check on his sobriety and make a demand for his documentation. His actions were authorized by both the HTA and the common law. Importantly, PC Pogson never lost his authority to continue with the investigation and proceeded reasonably at each stage of the investigation: Nolet. It was not an investigative detention triggering other Charter rights, such as rights to counsel. The s.9 argument fails.

[48] I will now go on to consider whether PC Pogson had sufficient grounds to make an arrest.

(b) Did PC Pogson have reasonable and probable grounds to arrest Mr. Melmer for the offence of impaired care or control?

[49] Mr. Richter argued that PC Pogson didn't have reasonable and probable grounds to arrest Mr. Melmer for impaired care or control. Mr. Richter relies significantly on the objective evidence of Mr. Melmer's physical indicia shortly after his arrest on the breath room and parade video.

[50] Ms. Thompson argues that PC Pogson credibly and reliably made detailed observations on the driveway which led to the formulation of reasonable and probable grounds.

[51] In considering the issue of reasonable and probable grounds, it is important to not conflate the legal test for arresting a person with the test of proving beyond a reasonable doubt that the person is guilty of impaired driving. The Crown carries the burden on both issues although the burden of proving ones' guilt is higher than simply meeting their burden for a lawful arrest. I will review both legal tests before I consider whether the Crown has met their burden on each issue on the facts of this case.

The Legal Test for Reasonable Grounds to Arrest

[52] The law is well settled that grounds to arrest must be subjectively held by the officer and this belief must be objectively justified: R. v. Canary, 2018 ONCA 304; R. v. Saciragic, 2017 ONCA 91 at para. 16; R. v. Shepherd, 2009 SCC 35, [2009] S.C.J. No. 35; R. v. Bernshaw (1995), 95 C.C.C. (3d) 193 (S.C.C.) at p. 216; R. v. Storrey, [1990] 1 S.C.R. 241; R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 (C.A.).

[53] In R. v. Notaro, 2018 ONCA 449 (CA) at para. 37, Justice Paciocco reminded that the inquiry into subjective grounds deals with the honesty of the arresting officer's belief.

[54] The objective inquiry asks whether a reasonable person, standing in the shoes of the police officer, would have believed that reasonable grounds existed to make the arrest: Storrey, at pp. 250-51.

[55] When considering whether an officer's subjective belief is objectively reasonable, the court must look at the objectively discernible facts through the eyes of a reasonable person with the same knowledge, training and experience as the officer: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 45-47.

[56] Determining whether sufficient grounds exist to justify an exercise of police powers is not a "scientific or metaphysical exercise", but one that calls for the application of common sense, flexibility, and practical everyday experience: R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 73. The proper question to ask is whether PC Pogson acted on reasonable grounds: Notaro, supra at para. 40. Importantly, this inquiry considers the reasonableness of his actions at the time of the arrest, not later on.

The Legal Test for Impaired Driving

[57] The Crown must prove that Mr. Melmer was more than just "impaired". Instead, the Crown must prove, beyond a reasonable doubt, Mr. Melmer's ability to operate a motor vehicle was impacted by alcohol in order to find him guilty of the offence: R. v. Andrews (1996), 1996 ABCA 23, 104 C.C.C. (3d) 392 (Alta. C.A.), leave to appeal refused [1996] S.C.C.A. No. 115, 106 C.C.C. (3d) vi (S.C.C.).

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

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

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

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

[62] Applying these two different standards to the evidence in this case, I have concluded that PC Pogson did have reasonable grounds to arrest Mr. Melmer for the offence of impaired driving. However, the evidence does not establish impairment of the ability to drive, which of course is a much higher burden.

The Arrest

[63] PC Pogson testified he arrested Mr. Melmer based on the totality of the following circumstances: (a) slurred speech, (b) slow and deliberate movement, which included a jerky motion when he attempted to pull his identification out of his wallet, (c) swaying back and forth, (d) the presence of bloodshot eyes and (e) the inability to focus.

[64] I accept the evidence of PC Pogson that he smelled alcohol on Mr. Melmer's breath. Indeed, Mr. Melmer could not dispute that his breath smelled of alcohol stating "there's a chance a bit of the smell was on my breath, but it had been a while".

[65] I also accept that PC Pogson saw glassy eyes. Despite Mr. Richter's cross-examination that the lighting was not ideal and he could not have made this observation, Mr. Melmer himself admitted they [his eyes] "probably" were glossy as his contacts were in his eyes "all day". Also, he admitted he was tired and they were "probably blood shot".

[66] Moreover, Mr. Melmer admitted consuming alcohol.

[67] Mr. Melmer disagreed that he was slurring his words at any point. For the first time in re-examination, he testified he was chewing gum which might have contributed to his slurring. Unfortunately, this was not put to PC Pogson, nor is it apparent on the video. I have not drawn an adverse inference against Mr. Melmer on this issue because I accept that PC Pogson perceived Mr. Melmer to have slurred speech, which quite frankly could have been caused by chewing gum. The important point remains he didn't know Mr. Melmer was chewing gum thus had no basis to discount it as a factor contributing to his calculus of impairment.

[68] PC Pogson said Mr. Melmer had trouble with his physical dexterity on the driveway as he was swaying and made "jerky" movements as he retrieved his documentation from the vehicle. Mr. Melmer said he had no trouble obtaining an envelope from his glove box located on the passenger side and was able to retrieve the paperwork without issue.

[69] I have compared Mr. Melmer's physical symptoms on video with his evidence and that of PC Pogson. In my view, there was nothing remarkable about his dexterity in the police station. Mr. Melmer was handcuffed and yet had no trouble exiting the SUV, walking into the parade room and walking along the line when he was in the room. Having concluded as much, I still have no basis to reject PC Pogson's evidence on this issue because both parties admitted that Mr. Melmer had to reach into the glove box over the gear box to retrieve the documentation. It was at this point his actions became "jerky". This is perfectly reasonable and makes sense. The evidence is not that Mr. Melmer walked to the passenger side door and retrieved his documents. I accept that the action of contorting one's body into a tight space may produce some jerky like movements.

[70] When I consider the evidence as a whole, I must ask if PC Pogson honestly believed that Mr. Melmer was impaired by alcohol. I have no trouble concluding that he did. I must then ask if this belief was a reasonable one, supported by objective facts. Mindful that the test for reasonable and probable grounds is not onerous, I conclude that he did given the combination of (i) the admission of alcohol consumption, (ii) the smell of alcohol on his breath, (iii) the bloodshot/glossy eyes and (iv) some conduct on the driveway which could have been perceived as impacting his fine motor skills. I have to remember as well that PC Pogson attended at the residence armed with information that he was looking for an impaired driver, not necessarily a specific impaired driver. This could have colored his perception of events as they unfolded but this alone is not a basis to reject the credibility or reliability of his belief.

[71] The significance of this last point is that while the dispatch information may have impacted his subjective belief, he had enough objective grounds to support his subjective belief and make an arrest. I accept the Crown's submission that just because there might have been other reasons explaining symptoms of impairment, that alone is not a reason to find that the grounds were deficient: R. v. Sheppard, 2009 SCC 35, 2009 SCJ No. 35 at para. 23. PC Pogson's belief was reasonable within the meaning of the law.

[72] In my view, PC Pogson's arrest was not unlawful and there was no breach of s.8 of the Charter. The investigation survives Charter scrutiny. In any event, I will add that if I am wrong that PC Pogson fell a little short in his grounds and for example, only had grounds to make a roadside demand, the evidence as a whole does not warrant exclusion of the breath samples: R. v. Jennings, 2018 ONCA 260, [2018] O.J. No. 1460 (Ont. C.A.). On this issue, Mr. Melmer would have not met his onus. In particular, there is no evidence at all of bad faith or systemic issues related to the police investigation suggesting this was a serious breach. The impact if any was low on Mr. Melmer's Charter protected rights and the taking of breath samples is minimally intrusive. Of course breath samples are reliable evidence. All of this would easily militate in favor of including the breath samples under s.24(2).

(c) Has the Crown proven that Mr. Melmer's ability to drive a motor vehicle was impaired by alcohol?

[73] In the final analysis, while PC Pogson had enough grounds to arrest Mr. Melmer, the same evidence falls short of proving his guilt of impairment of the ability to drive. Mr. Melmer is presumed to be innocent until this burden is displaced by the Crown beyond a reasonable doubt. A reasonable doubt is based on reason and common sense and logically derived from the evidence or the absence of evidence. In the end, while I can't discount PC Pogson's opinion that the thought Mr. Melmer was impaired, it does not mean that his ability to operate a motor vehicle was in fact impaired at the time he was in care or control of it. The evidence of driving in this case is limited to a brief jaunt on Sunset Rd. before Mr. Melmer parked his vehicle. There was nothing wrong with his driving, nor was there any admissible evidence of the 911 caller complaining of poor driving. While there doesn't have to be evidence of bad driving, many of the physical observations separate from the smell of alcohol and glossy eyes are equivocal. PC Pogson's arrest report detailed some of these observations which aren't present in his notebook which causes me to question some of the effects of the physical symptoms. Many of these observations are contradicted by the parade and breath room video. For example the reference to his dexterity and balance at the roadside is not present at all on the video, which took place minutes after the roadside interaction. In R. v. Villaroman, 2016 SCC 22, 338 C.C.C. (3d) 1, Justice Cromwell noted (at para. 38) the basic question is whether the circumstantial evidence "viewed logically and in light of human experience, is reasonably capable of supporting an inference other than the accused is guilty". There is an inference inconsistent with guilt based on the absence of evidence. I conclude that the Crown has not met their heavy burden on this issue.

D. Conclusion

[74] For the above reasons, Mr. Melmer will be found not guilty of impaired care or control.

[75] Having found no breaches of his Charter rights, the breath samples on the COQBT are admissible and conclusive proof of his guilt on the exceed 80mgs count. Mr. Melmer will be found guilty of exceed 80mgs.

Released: December 6, 2018

Signed: "Mr. Justice F. Javed"