Court Information

Ontario Court of Justice

Date: 2019-11-18

Location: Newmarket

Parties

Between:

Her Majesty the Queen

— AND —

Jesse Zaidman

Judgment

Evidence and Submissions Heard: November 4, 2019

Delivered: November 18, 2019

Counsel:

• Ms. Allison Large — counsel for the Crown
• Mr. Aaron Spektor — counsel for the defendant

Decision

KENKEL J.:

Introduction

[1] Constable Allison was on patrol in a marked cruiser when he saw a black Mercedes driving erratically at high speed. He followed the vehicle and was able to cause it to pull over just after it drove through a red light and stopped in an intersection. Further observations at the roadside led to the accused's arrest for impaired driving. Testing on an Approved Instrument at the station led to a second charge of operating a motor vehicle with a blood alcohol level exceeding the legal limit.

[2] The submissions of counsel identified the following issues:

• Has the Crown proved the arresting officer had reasonable grounds for the arrest of the accused and the Approved Instrument demand?
• Was the holding of the accused in the cells past the time he was served with documents an arbitrary detention contrary to s.9 of the Charter?
• If a breach is found, should the breath test readings be excluded as a remedy under s. 24(2)?
• Has the Crown proved the alleged impaired operation beyond a reasonable doubt?

Reasonable Grounds for the Arrest and Demand

[3] The defence notes that the accused was arrested just after being stopped with only a short time for the officer to make observations and assess impairment. The officer had an Approved Screening Device but chose not to use it. The defence submits that the driving observed was simply aggressive driving, with an odour of alcohol detected at the roadside. The officer lacked an objective basis to believe the various driving deficiencies were due to alcohol impairment. The arrest and demand in these circumstances breached sections 8 and 9 of the Charter.

[4] The Crown bears the burden of proving reasonable grounds for the demand – R v Haas, [2005] OJ No 3160 (CA) leave refused [2005] SCCA No 423. There must be objective evidence that supports the officer's belief that the suspect's ability to drive was even slightly impaired by the consumption of alcohol – R v Bush, 2010 ONCA 554 at para 48.

[5] The evidence of Constable Allison and the in-car video showed multiple driving errors:

• The accused's car was travelling at a high rate of speed relative to other traffic.
• The accused followed another car too closely.
• The accused swerved into the middle lane to pass the slower car then back again.
• While in the passing lane the accused's vehicle swerved within the lane and did not maintain a steady course.
• The accused made multiple abrupt lane changes.
• At an intersection with a red light, the accused drove past the stop line and stopped 10 feet into the intersection.
• There was a strong odour of alcohol coming from the accused's mouth.
• The accused appeared groggy, eyes partially closed.
• The accused did not acknowledge the demand for documents and had to be asked twice.
• The accused had to be asked twice to step out of the vehicle.
• After he exited the vehicle the accused was unsteady as he walked.

[6] In cross-examination, PC Allison agreed that many of the driving errors he observed could be characterized as "aggressive driving." He further agreed that in his experience people can drive aggressively and not be impaired. The officer characterized the accused's unsteadiness after exiting the vehicle as "slight." The officer agreed in cross-examination that the accused's eyes at trial looked similar to the condition he observed at the roadside. The defence submits that if most or all of the driving errors could be attributed to aggressive driving, something sober people might engage in, then the driving evidence cannot reasonably provide a basis for the officer's belief. The observed unsteadiness was slight, not accompanied by signs of intoxication such as falling down or holding objects for support. The slurred speech wasn't observed until the accused was under arrest in the patrol car so isn't part of the reasonable grounds assessment. The defence submits that at best, the officer had a suspicion based on the odour of alcohol but no basis to form a belief in impairment.

[7] In cross-examination, PC Allison agreed that the accused's eyes had the same "droopy" appearance as he'd seen at the roadside. The officer agreed that appears to be his natural condition. However, that point doesn't affect the officer's reasonable grounds as the assessment on this application is made on the basis of the information available to the officer at the time the demand was made, not on the basis of the trial record – R v Mastromartino, [2004] OJ No 1435 (SCJ) at para 25. The accused's evidence on the voir dire that he was told he was under arrest for impaired driving before he exited the car (thus removing the final observation of unsteadiness) was contradicted by his response in the police car on video moments later that he did not know why he was arrested and by the officer's credible evidence to the contrary.

[8] The fact that there may be other possible explanations for observed indicia does not remove that evidence from the assessment of the officer's grounds. That form of argument would prevent any assessment of grounds as one can always imagine alternate explanations. The "alternate explanation" discounting or removing of evidence from the reasonable grounds assessment was the error identified in R v Shepherd 2009 SCC 35. The role of this court is to look at the totality of the evidence available to the officer at the time to determine whether the officer's belief was supported by objective grounds.

[9] The numerous, serious driving errors listed above show defects in the fundamental requirements of driving. The officer did not agree that all of the observations could be dismissed as simply aggressive driving. The speed in those traffic conditions, the failure to judge distance in relation to other vehicles and the failure to react to a red light all are physical and mental errors reasonably consistent with the effects of alcohol consumption. The fact that some people may make the same errors while sober does not render the officer's inference unreasonable.

[10] The officer referred to swerving within the lane as another indication to him that the driving might be more than simply aggressive driving. Every driver is familiar with steering a straight course on the roadway. It's the very first thing a novice driver learns. As the video shows, weaving within a lane stands out as a marked departure from the course followed by all other vehicles on the road. The defence submits that the accused's weaving within the lane is simply straddling the dividing line just before making a lane change in that direction. Straddling a lane line is itself an error that shows mental and physical deficits in operation, but the officer's evidence and the in-car video shows that the defence focus on that moment ignores the prior course of the vehicle from the time it entered the lane. The accused was unable to maintain a centre path. As the officer pointed out on the video, the accused swerved to the far left outside line on entry to the lane, then swerved to the right to straddle the dividing line. The swerving was later followed by a failure to stop at a stale red light. The video shows the light turned green almost as soon as the accused came to a stop in the intersection, so it's not a case where the accused could have been taken by surprise by the red signal.

[11] I agree with the defence that the observation of slight unsteadiness after the accused exited the vehicle did not add much to the officer's grounds. However, once the officer linked the errors in driving to the odour of alcohol, the final small observation in a fast-moving investigation led to the formation of his belief at that moment. Considering all of the evidence, I find the officer's belief was reasonable and amply supported by his observations. Given the test for impairment, it is not necessary to observe further signs of advanced intoxication. As in the Bush case, formation of a belief can sometimes happen quickly. Once the officer reasonably formed his belief, he was not required to perform a screening device test to confirm that belief.

Overholding – Arbitrary Detention

[12] Mr. Zaidman was served with the Certificate of a Qualified Technician and other documents at 4:15 a.m. In his voir dire testimony, Mr. Zaidman did not remember the time of his release even though his watch was returned to him then. The defence did not call any further evidence on that point. The arresting officer's evidence that the accused was still in custody when he left the station at 5:34 a.m. puts the release after that point. The accused's estimate of the release time combined with the officer's evidence shows the release was likely at or just before 6:00 a.m.

[13] There is no direct evidence why the accused was not released between 4:15 and 6:00 a.m., but the evidence of the officers and the accused on this voir dire shows that there were three impaired driving arrests being processed, that one Staff Sgt. had to leave early and Acting Staff Sgt. Adamson took command of the station. She was relieved by a third Sergeant in a shift change that occurred in the period when the accused might otherwise have been released. When Mr. Zaidman became concerned about the delay and he banged on the door of his cell. He testified that the officers responded, and he was released shortly afterwards.

[14] Mr. Zaidman's arrest and detention was authorized by law. The question on this application is whether that authorized detention became arbitrary within the meaning of s. 9 of the Charter. The defence submits that once the last step related to the investigation was complete with the service of documents and notices, the lawful detention of the accused became arbitrary from that moment onward. There was no evidence that the officers had a reason to delay release. The Crown submits that the time of the release was not optimal, but it was explained by the circumstances at the station and was not "arbitrary" within the meaning of s.9.

[15] Detention of all impaired persons after testing as a matter of general policy would be arbitrary. In R v Price, 2010 ONSC 1898 Justice Durno explained at paragraph 93 that the decision regarding release requires an individual assessment of all of the circumstances listed in that case. In the recent decision of R v Ruscica, 2019 ONSC 2442 at para 54, the Summary Conviction Appeal Court held that a three hour delay in release after papers were served, and four hours after the last breath test, was not sufficient to establish a prima facie case of arbitrary detention so as to require the Crown to provide an explanation.

[16] Even though the three officers who were in charge of the station during the hours in question were not called by the applicant or the Crown, the direct and circumstantial evidence shows this case does not involve an insufficient individual assessment, nor did it involve indifference to the need to promptly release prisoners after the investigation was complete. The delayed release resulted from a busy station with multiple persons under arrest and multiple changes of supervision within a narrow time. The release of this accused occurred after the last change of supervision. While prisoner release must be a priority, it's important to remember that police stations have necessary procedures with respect to the processing of prisoners. Whether an accused is released immediately after certificates and notices are served in a drinking and driving case must reasonably depend to some degree upon other events that are happening in the station. See: R v Tessier, 2019 ONSC 1062 at para 84.

[17] I agree with the defence that other events in the station do not provide a blanket excuse for the police to neglect this important duty. However, I find the circumstances in this case reasonably explain the delay. The detention was not arbitrary within the meaning of s.9 of the Charter.

[18] In the alternative, if the delay breached s.9, the defence applies for exclusion of the breath test evidence pursuant to s. 24(2) of the Charter. Until recently, section 24(2) was not considered in overholding cases because the circumstances did not meet the wording of that section that restricted its application to evidence "obtained in a manner" that infringed or denied a Charter right. The limiting words of s. 24(2) appeared to link the remedy to the principle of trial fairness. Stay applications under s.24(1) of the Charter in this context have generally failed on that ground – a breach that is not related to the investigation or the gathering of evidence against the accused typically has no impact on trial fairness. See: R v Isler, [2004] OJ No 4332 (CA) at para 31. In R v Sapusak, [1998] OJ No 4148 (CA) the Court of Appeal referred to the same principle as precluding s.24(2) relief. Several recent summary conviction appeal cases have held that the s.24(2) remedy does not result in the exclusion of evidence in this context where the breach has no temporal or causal connection to the investigation or evidence collected, and no impact on trial fairness – R v Tessier, 2019 ONSC 1062 at para 108, R v Cheema, 2018 ONCS 22, R v Garrido-Hernandez 2017 ONSC 2552, R v Kavanaugh, 2017 ONSC 637.

[19] In R v King, 2019 ONSC 5748, Justice Dennison outlined a different view. Her Honour held that section 24(2) is now an available remedy in this context given the expanded interpretation of "obtained in a manner" in R v Pino, 2016 ONCA 389. Early cases interpreting that term held that it did not simply describe a causal connection, a temporal connection could also be sufficient so long as the breach was not too remote – R v Strachan, [1988] SCJ No 94. In Pino, the Court of Appeal held that the temporal connection was also not essential. The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of the three. The "obtained in a manner" requirement should not unduly limit the ability of a court to exclude evidence where its admission would bring the administration of justice into disrepute. In King, a release five hours after the last test was held to breach s.9 and engage s.24(2), but Her Honour found at paragraphs 78 to 84 that the breach was not deliberate and at the "lower end of the spectrum." The impact on the accused was not, "egregious" but still favoured exclusion while society's interest in a trial on the merits favoured admission of the evidence. Applying the test in R v Grant, 2009 SCC 32, the court declined to exclude the breath test evidence. Several trial decisions have followed the same approach as set out at paragraph 56 in King.

[20] In R v Larocque, 2018 ONSC 6475, Justice Kurke observed at paragraph 64 that in drinking and driving cases, whichever approach to "obtained in a manner" is followed, both lines of analysis tend to lead to the same result. "Whether the analysis is casual, temporal or contextual, there is no genuine connection between (the offence), the breath samples that were obtained … and the breach that followed." That's not always the case as shown in the trial decisions referred to above, but where courts have applied a s.24(2) remedy, it's often the "entire chain of events" criteria in Pino at paragraph 72 that is cited. Many of the trial decisions of this court listed in King involve multiple Charter breaches where overholding was part of a consistent course of conduct in relation to Charter rights.

[21] Applying the King/ Pino approach most favourable to the accused, and the Grant 24(2) test, I find the breach in this case would not be serious for the reasons set out above, similar to the analysis in King. In this case, the seriousness of the breach is also attenuated by the fact that it was quickly remedied once the accused brought the issue to the attention of the officers. The impact on the accused would not be minimal despite the relatively short delay as compared with other cases. Society's interest in a trial on the merits would favour admission of the reliable evidence essential to the Crown's case. Balancing all three factors, I find the admission of the breath test evidence would not bring the administration of justice into disrepute. A stay of proceedings under s. 24(1) was not requested nor would it be an appropriate remedy here.

Impaired Operation

[22] The evidence with respect to the allegation of impaired driving includes the circumstances summarized above in relation to the Charter application. There were further relevant observations in the patrol car and at the station. The accused's speech was comprehensible but slurred in some parts. The Qualified Technician, PC Skanes, also noted the accused's speech was slurred at times but his conversation with the accused was very limited. The in-car video showed some slurring of speech, consistent with the evidence of both officers. PC Skanes also noticed that the accused was unsteady when walking but his balance was otherwise fair. He noted the accused was drowsy, which could be consistent with the effects of alcohol. That observation by PC Skanes is consistent with the evidence of PC Allison.

[23] The test in this context is different than the one applied on the Charter voir dire. The Crown must prove the alleged impairment in the ability to operate a vehicle beyond a reasonable doubt. It's on this test that reasonable, alternate explanations that have a basis in the evidence are relevant. The court must still assess the totality of the evidence to determine whether, on the whole of the evidence, the Crown has proved that the accused's ability to operate his vehicle was impaired even to a slight degree as a result of his consumption of alcohol.

[24] The observation regarding the accused's eyes was reasonably explained at trial. That wasn't the only component of the officer's belief that the accused was "groggy," but it likely reasonably affects that observation. With respect to the driving, there is no evidence of any circumstance external to the accused that could have resulted in any of the physical and mental errors observed. The odour of alcohol and the fact of the breath test readings confirm the accused had consumed alcohol. When all of the evidence is considered as a whole, I find that the Crown has proved that the manner of driving and the physical indicia observed by both officers show physical and mental errors in the ability to operate the vehicle that are consistent with the effects of alcohol and not consistent with or reasonably explained by any other circumstance. I am unable to find any evidence that could reasonably leave a doubt in that regard.

Conclusion

[25] I find the Crown has proved that the arrest and approved instrument demand were based on reasonable grounds. The breath test readings are otherwise conceded to be accurate and admissible. The defence has failed to prove the s.9 breach alleged. In the alternative, this is not a case where the admission of the breath test readings would bring the administration of justice into disrepute contrary to s.24(2) of the Charter. There will be a finding of guilt on the Over 80 count.

[26] The Crown has proved the impaired operation alleged beyond a reasonable doubt. There will be a finding of guilt on that count. Given the manner of driving and the risk that driving posed to the public, the Over 80 count will be stayed and a conviction registered on the Impaired Operation count.

Delivered: November 18, 2019

Justice Joseph F. Kenkel