Court File and Parties
Ontario Court of Justice
Date: 2019-11-08
Court File No.: Brampton 3111 998 17 13308
Between:
Her Majesty the Queen
— and —
Luigi Caputo
Before: Justice G.P. Renwick
Heard on: 31 October, 01, and 04 November 2019
Reasons for Judgment released on: 08 November 2019
Counsel
E. Guimond — counsel for the Crown
O. Wigderson — counsel for the defendant Luigi Caputo
RENWICK J.:
INTRODUCTION
[1] The Defendant is charged with impaired operation of a motor vehicle and driving with an excess blood alcohol concentration ("BAC"). Essentially, police received a complaint of a possibly impaired driver and using the license plate of the indicated vehicle they awaited the driver at the registered owner's home. The Defendant was arrested within a few minutes of arriving and speaking with police.
[2] This was a brief trial. The parties agreed at the outset that the Defendant's application to exclude evidence would be heard alongside the trial evidence. Only three police witnesses testified.
[3] At issue is whether the arrest and subsequent evidential breath sample demand were lawful. Also, respecting the excess BAC charge, because this matter was tried after the coming into force of An Act to Amend the Criminal Code (offences relating to conveyances) and to Make Consequential Amendments to other Acts, S.C. 2018, c. 21, the prosecution seeks to rely upon the presumption of identity in place at the time of the alleged offence, as well as the new presumption of accuracy.
[4] Given the potential to end the trial, I will determine the outcome of the Defendant's Charter application before considering the trial on its merits.
LEGAL PRINCIPLES
[5] The onus during a criminal trial begins and ends with the prosecution to prove the guilt of the defendant beyond a reasonable doubt. Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the whole of the trial unless and until the court is satisfied that the charge has been proven beyond a reasonable doubt by admissible evidence. The prosecution's burden of proof never shifts during the trial. Proof beyond a reasonable doubt is a high threshold.
[6] A reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and it logically derives from the evidence or the lack of evidence adduced during the trial. While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is inapplicable and unrealistic. The Supreme Court of Canada has cautioned that there is no mathematical precision to proof beyond a reasonable doubt but it lies much closer to absolute certainty than to proof on a balance of probabilities.[1] If after considering all of the admissible evidence I am sure that the Defendant committed the alleged offence I must convict him since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt. Likewise, if I am not sure, then I have a reasonable doubt and an acquittal must follow.
[7] This case involves conflicting evidence and credibility assessments. In assessing witness credibility and reliability I have taken into account the general capacity of the witness to make their observations, to remember what they perceived, and their ability to accurately testify to their recollections. It is also important to determine whether the witness was trying to tell the truth and whether or not the witness was sincere, candid, biased, reticent, and/or evasive. A trier of fact is entitled to accept some, none, or all of what a witness says while testifying.
[8] A valuable means of assessing the credibility of any witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions. I must also assess what is testified to in the context of all of the evidence in the case and not on an isolated basis. This is true for any inconsistencies and whether these are inconsequential or significant to the case. If the inconsistency is significant, then I must pay careful attention to it when assessing the reliability of the witness' testimony.
[9] In this case, because the prosecutor seeks to adduce evidence obtained from a warrantless search (the breath sampling procedure), I must be satisfied on a balance of probabilities that the search was authorized by law, the law is reasonable, and the search was conducted reasonably: R. v. Collins, [1987] S.C.J. No. 15 at para. 23.
[10] Obtaining reasonable grounds does not demand perfection or even perfect accuracy. Police officers embarking on an investigation are entitled to be wrong. As long as their grounds are objectively reasonable rather than based on vague suspicions, intuitions, hunches, or worse, improper motives, they need not be found to be correct.
[11] The standard of reasonable grounds is credibly-based probability.[2] Alternative explanations for observed signs of possible alcohol-related impairment do not undermine reasonable grounds, unless the officer unreasonably discounted information of which she was aware but failed to consider.
[12] Reasonable grounds to believe an offence has been committed must be articulable, subjectively held by the officer, and objectively reasonable.[3] The officer is entitled to rely on hearsay, unless she has a reason to doubt the truth of the information.
[13] Reasonable grounds are not proof on a balance of probabilities, but they involve being satisfied of the probability of a state of affairs. The officer can be mistaken in the belief, as long as her belief is reasonable and there was no reason for her to doubt the information she believed.
[14] The Ontario Court of Appeal affirmed these principles in R. v. Notaro:
The reasonable and probable grounds test is not about the quality of the investigation or the range of the questions the officer asks herself. It turns on whether an arresting officer's honest, subjective belief that an offence has been committed is supported by the objective facts that the officer was aware of: R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641, at paras. 71-72. As Durno J. (sitting ad hoc) noted in Bush, at para. 70, "the issue is not whether the officer could have conducted a more thorough investigation. The issue is whether, when the officer made the breath demand, he subjectively and objectively had reasonable and probable grounds to do so."
This is not to say that the quality of the investigation will have no practical bearing on whether the arresting officer has reasonable and probable grounds. After all, the nature and quality of the investigation will affect the information that the officer has, and can therefore indirectly influence the sufficiency of the officer's grounds. The point is that the material focus in a reasonable and probable grounds analysis is not on the extent of the investigation that an officer goes through in forming her belief. The material focus is on what the information known to the officer would mean to a reasonable person.[4]
[15] Recently, our Court of Appeal considered the standard for a warrantless arrest in R. v. Carelse-Brown, [2016] O.J. No. 6564. At paragraph 28 of Carelse-Brown, the Court quoted from its decision in R. v. Golub:
In determining whether the reasonableness standard is met, the nature of the power exercised and the context within which it is exercised must be considered. The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, the officer's decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant.[5]
[16] In the next part, I will outline some of the evidence taken during this trial and the findings I have reached. I do not propose to reiterate all of the evidence taken. It is sufficient to note that during and subsequent to the trial I have taken several opportunities to review the evidence from my notes and the digital recording of the proceedings. I have come to no conclusions on the evidence until all of the submissions were received.
THE EVIDENCE AND FINDINGS
[17] Constable Lukasz Dowgialo initially struck me as someone who was conscientious, balanced, professional, and had a good memory of the events in question. Subsequent reflection and careful attention to the entirety of his evidence supports the conclusion that the officer was not always credible, and due to lapses of his memory and inconsistencies with other evidence, his testimony is not reliable, unless supported by other evidence. Several examples will prove the point.
[18] In his testimony in chief, Constable Dowgialo gave evidence that he walked the Defendant from his driveway to the police car, in order to gather more evidence about possible alcohol related indicia of impairment. He testified he had even considered at that time whether or not he would demand a roadside breath screening, but the walk to his police cruiser crystalized his belief that the Defendant was impaired in his ability to operate his car. In cross-examination, the officer testified that even without the walk to the police car, he had sufficient grounds to arrest the Defendant for impaired operation. This is a material inconsistency, for which there was no reasonable explanation given.
[19] Also, in terms of the location of the Defendant's arrest, the memory of Constable Ewan and the notes of the qualified technician tend to contradict Constable Dowgialo.
[20] Secondly, the officer was initially certain that the Defendant used the 'B' pillar of his car to exit the driver's seat and to steady himself once outside of the vehicle. Once it was put to him that Officer Ewan had recorded in his notes that the Defendant used the 'A' pillar to support himself, Constable Dowgialo was less certain of his memory that the observation related to the 'B' pillar.[6]
[21] Lastly, the arresting officer's observations of the Defendant's unsteadiness on his feet are undermined by the agreed statement of fact (exhibit 7) of the video recordings of the sally port, the booking area, and the breath room at the police station. While it's possible that an arrest and being transported to a police station may have a sobering effect, within a short period of time (approximately 30 minutes after his arrest) the Defendant appears to all external appearances to be completely sober as he exits the police car and walks around the police station.
[22] Officer Dowgialo was cross-examined about the indicia of impairment at the police station. He testified that the signs were obvious. When asked which signs he observed at the police station, he was unable to recall any and his notes could not assist him.[7] Obviously, the video evidence is of insufficient quality and clarity respecting the less obvious indicia of possible alcohol impairment observed by Constable Dowgialo at the Defendant's home: the odour of alcohol, bloodshot and watery eyes, and a flushed face. I have no reason not to accept that these less obvious signs of possible alcohol impairment were present and observed by Constable Dowgialo, at least prior to arrest.
[23] The difference between Constable Dowgialo's descriptions of the unsteadiness of the Defendant near his home (which are partially supported by similar observations by Constable Ewan) are so markedly different from the agreed facts, I have difficulty accepting the arresting officer's evidence about the degree to which there were observable signs of alcohol impairment at the police station.
[24] Constable Ewan's evidence was easier to assess. It remained consistent throughout his testimony, except in two respects. Initially, Officer Ewan testified that the Defendant was stumbling and swaying, but when referred to his notes he admitted there was no mention of stumbling. Also, he testified that he agreed with Constable Halfyard's notes that there were noticeable signs of impairment at the police station, but when pressed for details he attempted to explain that he meant that the effects of alcohol were apparent during the entire investigation rather than at the police station.
[25] I find that there was no significant testing of Constable Ewan's evidence during cross-examination. Perhaps the forensic purpose of having a standard against which to measure the evidence of Constable Dowgialo required leaving Constable Ewan's testimony largely unchallenged. In the end, I found this officer to be truthful and reliable, save where his observations were not supported by the agreed facts respecting the video evidence.
[26] After a consideration of all of the evidence, I find on a balance of probabilities that the Defendant used his left hand as he exited his vehicle to hold onto the A pillar as he stood. I find as a fact that the Defendant was slow to answer whether he had consumed any alcohol. I find that the Defendant fumbled with his key fob before he opened his trunk to retrieve his identification. These parts of Constable Ewan's evidence were not significantly challenged or undermined. This evidence provides support for parts of Constable Dowgialo's testimony. Minor discrepancies between the two officers' evidence do not trouble me. In fact, they satisfy me that they are the result of independent observations and note-taking and the frailties of memory, rather than an artefact of bad faith or untruthfulness on either officer's part.
[27] More concerning is the location of the Defendant's arrest. I tend to the view that Constable Dowgialo should have a better memory of where he performed this function, because he arrested the Defendant while Constable Ewan stood by. However, the inconsistency in Constable Dowgialo's evidence respecting the formulation of his grounds undermines his reliability here. I accept Constable Ewan's evidence on where the Defendant was arrested. I find that there would have been some discussion or direction to the Defendant to walk to the police car if that event occurred before the Defendant's arrest. Given that there was no evidence what, if anything, was said to have the Defendant walk to the police cruiser, I find that the Defendant's arrest occurred on his driveway.
DISCUSSION
The Charter Application
[28] To find that the Defendant's arrest was lawful, I have to be satisfied that the arresting officer honestly believed he had grounds to support an arrest. Those grounds have to be objectively reasonable.
[29] Despite the difficulties I have accepting parts of Constable Dowgialo's evidence (where unsupported by other evidence), I do accept that he honestly believed he had reasonable grounds to arrest the Defendant. Constable Dowgialo had the information of a complaint of poor driving, the smell of alcohol and the admission of prior consumption, the observation of bloodshot, watery eyes, and flushed face (neither of which were challenged), and his observation of swaying while standing and walking. Where the officer's evidence is unsupported by the video recordings, I find that Constable Dowgialo has mistakenly remembered signs of impairment that were less obvious than he claimed.
[30] The fumbling and unsteadiness of the Defendant (swaying) observed by Constable Ewan support a finding on a balance of probabilities that the Defendant was showing obvious effects of alcohol consumption. There was no real issue taken that the Defendant had bloodshot, watery eyes, a flushed face, the odour of alcohol on his breath, and he fumbled with his key fob (at some point), he used one of the pillars of his car for support, and he was swaying at times, while standing. This coupled with the information of poor driving, gave Constable Dowgialo reasonable grounds to arrest the Defendant for the impaired operation offence, even if the officer is unreliable about exactly where the arrest was executed.
[31] Counsel for the Defendant has argued against such a finding on the basis of the lack of credibility or reliability of Constable Dowgialo and Constable Ewan's evidence as a whole. While I agree that their evidence did not align in every respect, and I had issues with some of Constable Dowgialo's evidence, I do not find that either officer was trying to mislead the court. Rather, I find that Constable Dowgialo's memory was less reliable than Constable Ewan's. Together, their evidence was consistent in terms of several observable signs that may be indicative of alcohol impairment.
[32] I would also add that with respect to the information upon which this investigation began, it was confirmed to the extent that the license plate of the vehicle complained of belonged to a car that was apparently in the area, given that it returned to the registered owner's home within an appropriate timeframe. Whether or not the offensive driving was the result of alcohol impairment, distracted driving, or mere inattention is moot. It provided a reasonable basis upon which to engage the Defendant about his ability to drive.
[33] Again, the formation of reasonable grounds to believe in the mind of an officer does not depend on the accuracy of the belief as long as it was not unreasonable to have come to the opinion formed. In all of the circumstances, it was not unreasonable for Constable Dowgialo to have formed the opinion that the Defendant's ability to drive was impaired to some degree by alcohol.
[34] Given this finding, there was no breach of s. 8 or 9 of the Charter. The police had reasonable grounds to arrest the Defendant and make an evidential breath demand, and to take custody of the Defendant to carry out this investigation.
[35] In the event that I am wrong about the lawfulness of the Defendant's arrest, I would adopt the reasoning of Justice Woollcombe in R. v. Merko, [2018] O.J. No. 6575, in respect of the entire s. 24(2) Charter analysis.
[36] I would gauge the severity of the Charter violation as moderately serious. Police are expected to know when reasonable suspicion becomes reasonable grounds to arrest. This factor favours exclusion of the breath sample results.
[37] To find a breach of ss. 8 and 9 in the circumstances of this case, I would have had to find that the police mistakenly or deliberately arrested the Defendant when it was not objectively reasonable to have done so. While one may quarrel with the import of the police evidence in this case, the evidence did not establish that Officer Dowgialo was unethical, unprofessional, or purposefully attempting to mislead the court. Rather, if a breach of the Charter had been found, it would likely have been the result of over zealousness. I say this because there is a complete dearth of evidence upon which to conclude that the police fabricated their observations of indicia of impairment and then colluded to record similar observations in order to justify an unlawful arrest and to perpetrate a fraud upon the court.
[38] Following Merko, supra, and R. v. Jennings, 2018 ONCA 260, [2018] O.J. No. 1460, I accept that the impact of the Charter breaches would be minimally intrusive in terms of the Defendant's bodily integrity, liberty, and dignity. I am in complete agreement that there is nothing added to the analysis of the impact upon the Defendant in finding both s. 8 and s. 9 violations, in the circumstances of this case. There may well be cases where the detention is arbitrary and different considerations will add to the impact upon a defendant's autonomy and liberty interests, but this is not such a case. This factor favours admission of the breath testing results in this trial.
[39] With respect to a consideration of the societal interest in an adjudication on the merits and whether public respect for the administration of justice would better be served by admission or exclusion of the breath testing results, in the absence of a finding of police malfeasance requiring the court's opprobrium, the circumstances of this case favour admission.
[40] In the result, s. 24(2) of the Charter would not require the exclusion of any evidence if I were satisfied that the police unlawfully arrested the Defendant and took breath samples from him. For these reasons, I dismiss the Defendant's Charter application.
Impaired Driving Offence
[41] I am not satisfied that it is proven beyond a reasonable doubt that the Defendant drove while his ability to do so was impaired to any degree by alcohol for the following reasons:
There is an absence of evidence respecting the alleged problematic driving of the Defendant;
There is evidence from Officer Dowgialo that the Defendant drove down his street and parked in a completely appropriate way; and
The signs of possible alcohol impairment (stumbling, fumbling, slow speech, and swaying while standing and walking) were so minimal that they were no longer observable within 35 minutes of the Defendant's arrest.
Over 80 Offence
[42] There were two issues raised during the trial respecting the over 80 offence: the Shaikh issue and the Flores-Vigil issue.[8]
[43] Counsel for the Defendant made a perfunctory argument following the decision in Shaikh, supra, for the sole purpose of retaining a right of appeal on this basis. I invited counsel to give me any reason not to follow my decision in R. v. Bhandal, [2019] O.J. No. 2615, especially at paragraph 17. Counsel was unable to persuade me that my earlier decision is flawed. On the basis of everything I said in that decision, I reject the argument that the presumption of identity was retrospectively repealed in this case.
[44] The Flores-Vigil argument was well litigated. I am indebted to both counsel for their very thorough and able arguments.
[45] The heart of the Defendant's attack upon the presumption of accuracy under section 320.31 of the Code is that the qualified technician must rely on hearsay and speculation to know the alcohol concentration of the standard solution he used to ensure his approved instrument was properly operating.
[46] There are several points to make here. First, the evidence before me is that a certificate of analyst from the Centre of Forensic Sciences ("CFS") attests to the suitability of the solution used by the qualified technician.
[47] Second, the qualified technician was trained by the same CFS respecting the use of the approved instrument. He testified, and I accept, that his training two years prior included information that the standard alcohol solutions certified for use to test the calibration of the approved instrument he was using contain 100mgs of alcohol in 100 ml of solution.[9]
[48] There is no evidence that standard alcohol solutions approved by the CFS ever have an alcohol concentration outside of 100 mgs %.
[49] I was referred to many cases by both sides on whether or not the evidence I heard could establish the statutory preconditions to permit the presumption that the approved instrument accurately analysed the Defendant's BAC. The weight of judicial authority favours acceptance of the qualified technician's evidence respecting the "target value" of the standard solution.
[50] I accept the reasoning in R. v. Does, [2019] O.J. No. 1924 (C.J.), R. v. Porchetta, [2019] O.J. No. 1985 (C.J.), R. v. McAlorum, [2019] O.J. No. 2249 (C.J.), and R. v. Chuck, [2019] O.J. No. 2773 (C.J.) respecting the ability to accept the qualified technician's reliance on training to establish the alcohol concentration of the standard solution.
[51] If I am wrong in this respect, I accept the binding reasoning in the summary conviction appeal judgment in R. v. Wu, [2019] O.J. No. 5000 (S.C.J.) at paras. 13-14 as applied recently in R. v. Singh, [2019] O.J. No. 5529 (C.J.) at paras. 30-31.
[52] On all of the evidence before me, I have no reason to doubt the qualifications of Constable Halfyard as a qualified technician. His evidence impressed me as someone thoroughly knowledgeable of the proper operation of the approved instrument he was using to ascertain the Defendant's BAC. There is no real contest that the device was operated properly or capable of reliably measuring the alcohol concentration in the Defendant's blood.
[53] I am satisfied on either basis, either by reliance on the presumption of accuracy, or at common law, that the Defendant operated his car with an impermissibly high BAC.
CONCLUSION
[54] I am not satisfied to the criminal standard that the Defendant drove while impaired by alcohol, but I am satisfied beyond a reasonable doubt that his BAC was over 80 mgs of alcohol in 100 ml of blood while operating a motor vehicle.
[55] I find Luigi Caputo not guilty on count one on the Information but guilty of count 2.
Released: 08 November 2019
Justice G. Paul Renwick
Footnotes
[1] R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40 at para. 242.
[3] R. v. Storrey, [1990] S.C.J. No. 12 at para. 17.
[4] R. v. Notaro, [2018] O.J. No. 2537 (C.A.) at paras. 34-35.
[5] R. v. Golub, [1997] O.J. No. 3097, at para. 18.
[6] In passing, I note that Officer Dowgialo testified that his notes did not specify which pillar his observations involved. The officer's notes were not made an exhibit, but they were provided to the court during the cross-examination. Constable Dowgialo's notes specifically contradict his evidence that his notes did not include which pillar the Defendant apparently used to steady himself. Like Officer Ewan, the officer had recorded that the Defendant used the 'A' pillar for support. However, I have reminded myself that I cannot use this as evidence, because the notes were not made an exhibit.
[7] I note that the cross-examination of Constable Dowgialo included reference to the qualified technician's notation that the effects of alcohol were "noticeable," but this apparent observation never became evidence in this trial.
[8] See R. v. Shaikh, 2019 ONCJ 157, [2019] O.J. No. 1528 (C.J.) and R. v. Flores-Vigil, 2019 ONCJ 192, [2019] O.J. No. 1730 (C.J.).
[9] On numerous occasions the qualified technician testified that the solution contained "100 mgs of alcohol in 100 ml of blood," but neither counsel took issue with this apparent mistake in terminology.