Ontario Court of Justice

Date: 2019-06-25 Court File No.: Newmarket 18-05632

Between:

Her Majesty the Queen

— and —

Darryl Patrick McColgan

Judgment

Evidence Heard: 24 June, 2019 Delivered: 25 June, 2019

Counsel:

• Mr. Gregory Elder, counsel for the Crown
• Mr. Terry Hawtin, counsel for the defendant

KENKEL J.:

Introduction

[1] Early one morning a man took his car in for service at a dealership in Richmond Hill. The Guest Services Manager became concerned that the customer's ability to drive might be impaired by alcohol. He spoke to another manager who called police. Police officers attended and a Standard Field Sobriety Test was administered. The failure of that test led to a demand for breath testing via an approved instrument. The results of the approved instrument tests combined with the report of a toxicologist show that the driver would have been both impaired in the ability to operate a motor vehicle and over the legal blood alcohol concentration (BAC) at the time he drove into the service bay.

[2] The Crown and defence agree two issues remain:

• Has the Crown proved identification of the driver beyond a reasonable doubt?
• Charter s. 8 – Has the Crown proved that the Standard Field Sobriety test demand was based upon a reasonable suspicion, particularly in relation to the time of driving?

Identification of the Driver

[3] The Crown concedes that much of the evidence from the second manager is inadmissible as hearsay. The Crown submits that the remaining direct and circumstantial evidence proves identification beyond a reasonable doubt. The defence submits the dock identification of the accused by the Guest Services manager should be given no weight, particularly where there were some parts of the description that did not match the accused's present appearance at trial. The evidence that remains is insufficient to prove identity beyond a reasonable doubt.

[4] Mr. Jose Rosales Ramos (Ramos) was the Guest Services manager at the Richmond Hill Lexus dealership that morning. He testified that he was the one who greeted Mr. McColgan. When Mr. McColgan bent down to show him the issue with his tire and rim Mr. Ramos noticed he was shaky and there was an odour of alcohol coming from him. Mr. Ramos brought Mr. McColgan to the reception desk. He then spoke to his manager to determine what to do. Mr. Ramos later saw police speaking with the same driver. He subsequently saw them outside doing what he thought looked like a sobriety test. He saw only portions of the test. At the scene Mr. Ramos described the driver as male, white, 5 foot 7, late 30's early 40's, wearing a hat, dirty blonde hair, freckles. He identified the accused before the court as the driver he had described. In cross-examination Mr. Ramos agreed that Mr. McColgan's hair now is darker than "dirty blonde". He also agreed that he didn't see freckles as he looked over from the witness stand across the courtroom.

[5] But for the two points discussed in cross-examination, the description given by Mr. Ramos is consistent with the description of the accused recorded by the arresting officer P.C. Little. Constable Little identified the accused Mr. McColgan as the person he was asked to speak with at the dealership. He confirmed Mr. McColgan's identity at the time by reference to online photo records kept by the Ministry of Transportation. I agree with the defence that the limited description given by Mr. Ramos would not itself be sufficient to support the direct identification of any person. However, his in-court identification is worth some weight as it is linked to the officer's evidence where the identity of the accused was confirmed. Mr. Ramos observed the driver he dealt with speaking to police and being tested for sobriety. The direct observation linking the evidence of the two witnesses and the circumstantial evidence together proves beyond a reasonable doubt that the person who drove into the dealership as described by Mr. Ramos was the same person who was tested and arrested by Constable Little.

SFST Demand – Time of Driving

[6] Section 254(2)(a) required proof that an officer reasonably suspect that a person had alcohol or a drug in their body and that they operated a motor vehicle within the previous three hours. Constable Little testified that he did not know the precise time when Mr. McColgan drove into the dealership. On this point the issue is whether circumstantial evidence can be sufficient to provide reasonable grounds to suspect.

[7] Constable Little was dispatched to this call at 0859h. He arrived at 0905h. After a brief investigation he made a demand for a Standard Field Sobriety Test at 0917h. He didn't know the precise time of driving, but he knew it was prior to the call. He inferred from the time of day, the nature of the complaint made and the circumstances of the call at the dealership that the police were called shortly after the accused drove into the premises. He testified that he is aware there is a time limit for an SFST demand. Based on the information he was provided and the circumstantial evidence, and drawing reasonable inferences from the evidence, he inferred that the accused had been driving shortly before the police were called. That would be well within the s. 254(2)(a) 3 hour limit. The officer's suspicion was not a hunch or a guess but logically based on the evidence he had. I find the Crown has proved the demand was objectively reasonable. There's no evidence of a s. 8 breach.

Conclusion

[8] There's no evidence which could reasonably leave a doubt on either count. The "Over 80" count will be stayed under the rule in R v. Kienapple, [1974] SCJ No 76.

Delivered: June 25, 2019

Justice Joseph F. Kenkel