Court File and Parties

Ontario Court of Justice

Date: 2019-07-03

Court File No.: Newmarket 18-05611

Between:

Her Majesty the Queen

— and —

Marcin Tadeusz Bizon

Judgment

Evidence and Submissions Heard: 27 February, 3 July 2019

Delivered: 3 July 2019

Counsel:

• Mr. Brad Juriansz, Ms. Lee-Anne McCallum — counsel for the Crown
• Mr. Terry Hawtin — counsel for the defendant

KENKEL J.:

Introduction

[1] An off-duty Peel police officer contacted the Ontario Provincial Police (OPP) about a vehicle southbound on the 400 that had swerved and crossed into other lanes with inconsistent speed. PC Shearer of the OPP responded and located the vehicle. He saw the vehicle swerve within the lane and caused Mr. Bizon's car to stop. Mr. Bizon was subsequently charged with three offences including impaired operation s 253(1)(a) and operation while Over 80 s 253(1)(b). The third count was withdrawn by the Crown at the outset of the trial. At the conclusion of the Crown's case the Crown conceded the Over 80 count should be dismissed and any evidence gathered at the station in relation to the impaired count should be disregarded given several Charter violations. The one remaining issue is whether the Crown has proved beyond a reasonable doubt that the accused's ability to operate his vehicle was impaired by alcohol as alleged.

Impaired Operation

[2] The Crown's case rests on the observations of the off-duty officer and the arresting officer. The evidence of off-duty officer PC Lamarre was provided by written statement on consent. PC Lamarre was driving by the accused's vehicle for 10-12 minutes from Bradford to King Road. During that time he saw the Jeep move to the left line of its laneway when the highway made a left bend, then it went to the right and the tires went past the lane line. PC Lamarre then saw constant weaving within the lane crossing lines. His statement later described movement within the lane – S turns from the left to the right most part of the lane. He thought the driver's posture looked odd. The driver's speed was "pretty normal", perhaps slow at times but generally along with the flow of traffic.

[3] PC Shearer found the accused's vehicle and matched it to the report by PC Lamarre. He noted the vehicle swerve within its lane. He put on his lights to initiate a traffic stop and when the driver didn't immediately respond he activated his siren. The accused made a right turn signal then pulled over onto the shoulder. The officer noticed a slight odour of alcohol at first but it was hard to discern as the accused was smoking. Later he noticed a stronger odour which led to further investigation. The accused stepped out of his vehicle and PC Shearer said he was unsteady on his feet. The accused told the officer he had an injury.

[4] From the information he'd been provided and his observation of the accused and his driving, PC Shearer did not form reasonable grounds to arrest the accused for impaired driving. He administered an approved screening device test on the basis of a reasonable suspicion that the driver had alcohol present in his body. The officer was not experienced, but he properly articulated the basis for the ASD test and was plainly aware of the reasonable grounds standard for arrest.

[5] There's little information about PC Shearer's observation of unsteadiness when the accused exited the vehicle. That's understandable given that he did not direct the accused to exit at that time. PC Shearer was on the other side of the barrier. In subsequent conversation the officer determined the accused had a knee injury and wore a brace although he didn't check the car to determine whether the brace was there.

[6] The written statement of PC Lamarre starts with the accused moving to the left of his lane on a bend then correcting to the other side after that turn. There was further movement which caught the officer's attention – weaving and crossing lines. The written format of this officer's evidence does not provide further details. I don't place much weight on the officer's observations about posture. The officer was checking if the driver was texting and indeed found him leaning forward with his head tilted forward which could be simply the way Mr. Bizon drives or may have another cause. The observations of PC Lamarre are consistent with the brief driving observations of PC Shearer. The accused's response to the officer's lights may not have been immediate, but it's not plain in this case that the officer's estimated delay could fairly be attributed to a lack of awareness.

[7] As the defence submitted, the court must also consider the absence of evidence which might otherwise be expected in relation to this count. There is no evidence that the accused's driving caused any difficulty for any other vehicle. The cause of any unsteadiness was reasonably shown in the accused's response to the officer which the defence says is admissible for this purpose. The accused's speed was generally at the limit and with the flow of the traffic. Other than an odour of alcoholic beverage, many of the physical symptoms associated with alcohol impairment were not present – red or watery eyes, slurred speech, difficulty walking at the roadside, problems with fine motor movement.

[8] In considering the totality of the evidence as a whole, I must balance the arresting officer's evidence regarding the accused's driving with the fact that the driving as he observed, consistent with the observation of the first officer, did not when combined with an odour of alcohol give rise to anything more than a suspicion of alcohol in the driver's body. That's not to say that the officer's conclusion is at all determinative, but it's a circumstance that seems to detract from the force of the evidence regarding the accused's swerving to that point. Even leaving that point aside, on the whole of the evidence I find a reasonable doubt remains.

Conclusion

[9] The impaired driving charge is dismissed.

Delivered: July 3, 2019

Justice Joseph F. Kenkel