Court Information
Ontario Court of Justice
Date: 2020-01-14
Court File No.: Guelph # 4611 998 18 1926
Parties
Between:
Her Majesty the Queen
— and —
Matthew Anderson
Judicial Officer and Counsel
Before: Justice M.K. Wendl
Heard: November 5, 2019
Reasons for Judgment Released: January 14, 2020
Counsel:
- J. Forward, counsel for the Crown
- P. Dotsikas, counsel for the defendant Matthew Anderson
Judgment
WENDL J.:
Introduction
[1] Matthew Anderson is charged with operating a motor vehicle while he was impaired by alcohol. The Crown, at the beginning of the trial, withdrew the charge of operating a motor vehicle with a blood alcohol concentration in excess of 80 mgs. of alcohol in 100 mls. of blood.
[2] There are two issues in this trial:
(1) What evidence is admissible on the charge of impaired driving?
(2) Was Matthew Anderson impaired by alcohol while operating his motor vehicle?
Facts
[3] In the early morning hours of June 24th, 2018 Guelph police received information regarding a possible impaired driver. The driver's license plate was provided to the 911 dispatch operator.
[4] The Crown called the two civilian witnesses that phoned 911. Neither witness could identify the driver. The first witness, Pat Donaghy, described an aggressive exit from a parking spot on Carden street. The second witness, Ryan Loughran, testified that his comments on the 911 call were not his observations. He was relaying the observations of the taxi driver in the taxi he was taking. He, himself, saw nothing of significance in relation to the impaired driving charge. He just saw the alleged impaired driver go straight through a set of lights. The evidence of neither witness, Pat Donaghy or Ryan Loughlin, advances the Crown's case or the defence's position.
[5] Constable Gould was dispatched to investigate the call. He did a check on the licence plate number that was provided to him. It came back registered to the accused, Matthew Anderson. The address associated with the vehicle was 240 Waterloo Avenue, apartment 101 in Guelph.
[6] Constable Gould was not able to locate the vehicle in the area of the complaint; therefore, he went to 240 Waterloo Avenue. At 3:39 a.m., he saw the suspect vehicle, a gold four-door Chrysler, pull up eastbound on Waterloo Avenue. As it approached the driveway, it suddenly slammed on the brakes before turning. Constable Gould noted that the stop and turn was not done in a fluid manner or was consistent with a late turn. Constable Gould pulled behind vehicle at that point.
[7] The gold Chrysler then turned into a parking spot at 240 Waterloo Avenue. The vehicle was not parked in a fluid manner. The vehicle stopped twice in the spot as it approached the retaining wall at the end of the space. Constable Gould then put on his lights, got out of his vehicle and approached the gold Chrysler. As he approached, he noted that the driver was on a cell phone.
[8] Matthew Anderson was the driver. When Mr. Anderson rolled down his window, Constable Gould noted that his eyes did not move fluidly, and the officer could smell the odour of alcohol coming from his breath. When asked what he meant by eyes moving fluidly, Constable Gould explained that, in his experience, eyes move to where they are going to look before you turn your head. In this case, that did not happen. Mr. Anderson had to turn his whole head. Constable Gould indicated this could also be described as the "1000-yard stare".
[9] At that point, Constable Gould formed a suspicion that the accused had alcohol in his system. He made an ASD demand. Constable Gould requested that the accused step out of his vehicle. As the accused did so, he used both the door and the frame of the car to lift himself. In Constable Gould's view, the accused was doing so to maintain balance. Also, upon getting out of the vehicle Mr. Anderson took a moment to ensure his balance before he stepped away. The accused, after providing his license and registration, leaned up against his vehicle. Constable Gould testified that the reason he wanted the accused out of the vehicle was because his ASD was in his cruiser and he did not want the accused staying in the vehicle for safety and practical reasons. In addition to that, Constable Gould testified that he was going to make observations of the accused as he got out of his vehicle.
[10] While Constable Gould was retrieving the ASD from his cruiser, Mr. Anderson walked over to the police cruiser. Constable Gould then asked Mr. Anderson if he had done this before, to which the accused replied, "Yeah, I've done it." Constable Gould testified that those words were slurred. Constable Gould also noted that Mr. Anderson was swaying. The accused then touched the fender of the police cruiser because he had swayed a little too far. He needed to put his hand on the cruiser to keep his balance. Constable Gould noted that the ground was in good condition and the accused was wearing skateboard type shoes. Therefore, according to Constable Gould, there was no other reason for the accused to sway.
[11] As a result of the foregoing observations, Constable Gould arrested Mr. Anderson for impaired operation, obviating the necessity for the ASD test. Upon arriving at the station, the Constable noted that the accused's speech was still slurred when he requested to speak with duty counsel.
[12] At the station, the accused and Constable Gould had a conversation. The officer noted that he mixed up his words, by saying "40-hour work day" instead of "40-hour work week" and "name badge" instead of "badge name".
Issue 1: What Evidence is Admissible on the Charge of Impaired Driving?
[13] Evidence of impairment acquired at the roadside may not always be admissible to prove impairment. If the officer asks the suspected impaired driver to exit his vehicle as a sobriety test, then the evidence is not admissible to prove impairment. However, if the officer asks the suspect to get out of the vehicle to facilitate further investigation, the evidence is admissible at trial. [1]
[14] Here, Constable Gould asked Mr. Anderson to exit his vehicle to perform the ASD test. Constable Gould testified that he did not want him staying in the car. That being said, Constable Gould also testified that he would be able to observe him as he exited the vehicle.
[15] I accept that Constable Gould had valid reasons to ask the accused to exit his vehicle, namely performing the ASD test. He indicated that performing the ASD test while standing up and right next to him was easier than having the accused sitting down in the vehicle. I agree. Leaving the accused in the vehicle would be inconvenient. The administering officer would have to reach inside the car with the ASD and demonstrate to the suspected impaired driver how to use it at an odd angle, while hunched over.
[16] However, the salient reason that Constable Gould asked Mr. Anderson to exit the vehicle seems to be officer safety. Constable Gould testified that he did not want a suspected impaired driver to be in control of their vehicle when and if they failed the ASD. Again, I cannot but agree. An impaired driver is dangerous. While I suspect most drivers would never react in the manner described by Constable Gould, I believe there is a realistic possibility that some may. Unfortunately, flight from police in a motor vehicle is a charge this Court sees more often that one would think. Removing a suspected impaired driver from his or her vehicle is a legitimate officer safety and public safety issue. Moreover, asking a suspected impaired driver to exit the motor vehicle to perform an ASD test is minimally intrusive.
[17] The sobriety test, in this case, was the performance of the ASD test by Mr. Anderson. Directions by Constable Gould to facilitate the ASD test or for officer safety, such as the direction to Mr. Anderson to exit the vehicle or the direction to stand while performing the ASD test, were not sobriety tests. Therefore, the officer's observations of Mr. Anderson as he got out of the vehicle and while he was standing are admissible.
Issue 2: Was Matthew Anderson Impaired While Operating His Motor Vehicle?
[18] Fiorucci J., with his customary thoroughness, provides an excellent summary of the law as it relates to the charge of impaired driving in [R. v. Sousa][2]:
What the Crown is required to establish beyond a reasonable doubt is some degree of impairment to operate a motor vehicle, from slight to great. Slight impairment to drive relates to a reduced ability, in some measure, to perform a complex motor function whether the impairment impacts on perception or field of vision, reaction or response time, judgment, or regard for the rules of the road. A court "must not fail to recognize the fine but critical distinction between 'slight impairment' generally, and "slight impairment of one's ability to operate a motor vehicle'".
A trial judge must consider the cumulative effect of all of the evidence as it relates to the issue of whether a driver's ability to operate a motor vehicle was impaired by alcohol. A trial judge is not to approach the question of impairment as involving a scorecard noting which indicia are present and which are absent. The totality of the circumstances must be considered.
An unexplained accident can be an indication of impairment in the ability to drive. An unexplained accident, coupled with alcohol consumption may be sufficient to establish the driver's guilt for impaired operation of a motor vehicle by the consumption of alcohol. A trial judge must be careful not to shift the burden of proof in the analysis. However, a court cannot speculate as to other causes of the accident where no such evidence is called.
It is not improper for a trial court to consider evidence that an accused consumed alcohol prior to driving as a factor relevant to the determination of whether an impaired operation charge has been proven. The consumption of alcohol must be a contributing factor to the driver's impairment. In the absence of expert testimony, a court is not permitted to take judicial notice that a person who consumed a certain amount of alcohol prior to driving was impaired.
The fact that an accused does not appear to be as intoxicated at the police station as civilian and police witnesses describe him or her at the roadside is not necessarily inconsistent with a finding that his or her ability to drive was impaired by the consumption of alcohol when he or she was driving. Observable indicia of impairment are not static.
[19] I would only add that this Court is not to approach the evidence in a piecemeal manner and explain away each individual symptom or dissect each individual symptom in isolation. [3]
[20] Counsel for the accused did an excellent job highlighting the symptoms that were not present, such as the lack of issues with the actual turn of the accused vehicle observed by Constable Gould, the fact that there was no unsteadiness on his feet at the police station and that the accused was responsive to the questions asked by Constable Gould. Also, Mr. Anderson's counsel highlighted other possible explanations for the indicia of impairment, such as the use of the cell phone when the accused was parking and the fact that the accused's height may have played a part in the way the accused exited his vehicle. Cross-examination did not, however, undermine the credibility or reliability of Constable Gould's evidence, or his observations of any of the indicia. Constable Gould was a very credible and reliable witness. His notes were detailed. For instance, he noted which words were slurred and ruled out any alternate explanations for the swaying.
[21] The approach suggested by the accused to the analysis of impairment is exactly the approach appellate courts caution against. It is a piecemeal approach that asks the court to look at the symptoms in isolation or analyze the symptoms as a checklist in relation to those that are not there. I find that on the totality of the evidence, the Crown has established beyond a reasonable doubt that the accused ability to operate a motor vehicle was impaired by alcohol. First, we have the sudden braking of the vehicle by the accused before it turned into his residence parking lot. Second, the stuttered parking of the vehicle. Third, the smell of alcohol on the accused's breath. Fourth, the manner in which he exited the vehicle, including a lack of balance. Fifth, the need to make sure he was balanced at exit. Sixth, the accused's slurred speech when he said "Yeah, I've done it." Seventh, the swaying when he was outside the vehicle, coupled with the fact that there was no issue with the ground and the accused was wearing skate shoes. Eighth, the need to touch the fender to keep his balance when he was beside Constable Gould's vehicle waiting to perform the ASD. Ninth, the slurred speech when requesting duty counsel, and tenth, the mixing up of the "40-hour work week" with the "40-hour work day" and "name badge with "badge name."
[22] On the totality of these facts, the Crown has established beyond a reasonable doubt that Mr. Anderson's ability to operate a motor vehicle was impaired to some degree, from slight to great, by alcohol.
Conclusion
[23] I find Matthew Anderson guilty of impaired operation of a motor vehicle.
Released: January 14th, 2020
Signed: Justice M.K. Wendl
Footnotes
[1] R. v. Roberts, 2018 ONCA 411, paras. 93-94