Court Information
Ontario Court of Justice
Date: 2020-01-24
Court File No.: Central East - Newmarket 1211-998-18-04518
Parties
Between:
Her Majesty the Queen
— And —
Dylan Harvey
Before: Justice P.N. Bourque
Counsel
For the Crown: Kelli Frew
For the Defendant: Patrick Metzler
Reasons for Judgment
Released on January 24, 2020
Overview
[1] On December 6, 2018, a civilian following the defendant noticed some bad driving and called 911. The civilian followed the defendant into a parking lot of an ice arena. A police officer attended soon thereafter and after an interaction with the defendant, arrested him and he is now facing charges of impaired driving and driving with excess alcohol.
The Crown's Case
Nestor Olivera
[2] …was driving and saw a vehicle swerving in his lane and it caught his attention. He had a dash camera in his car, and the resulting video was shown in court and marked as Exhibit 1. He gave his evidence while watching the video. The video essentially confirmed all of the salient points of his evidence.
[3] He was driving on the Highway 403 and noticed the defendant vehicle swerving in the lane. At one point, the witness (in the left lane) drove up beside the defendant (in the right lane) and the defendant car was out of view. The witness stated that the defendant's car moved in his lane towards the witness and there could be heard the witness honking at the defendant as he was afraid the defendant would move into his car.
[4] The witness became convinced there was something wrong with the defendant's driving and he followed and after seeing the vehicle swerve within his lane at least two times, he began a 911 call, which could be heard on the video. The witness stated that he was not sure what the cause of the poor driving was, but he made the observation, that as the defendant passed him, he had both of his hands on the steering wheel.
[5] The defendant then drove off the highway and onto some city streets and the defendant followed. There are at least four occasions where the defendant was swerving within the lane and at one point the car actually went partially into the oncoming lane before then moving back into the lane. There was a point in the video where it was blacked out (to preserve the privacy of the witness's cell phone number) and the witness said that the defendant moved over to the right and almost hit a curb.
[6] The vehicle then made at least two proper turns at lights and then turned into an ice arena. The defendant pulled into the "exit" lane and then parked. The witness saw him getting out of his vehicle and getting some hockey gear and also moving a box of beer from the front of the car to the trunk.
[7] The police officer's vehicle came to the scene at 20:11 and the witness turned his car around and had no further interaction with the defendant or his car.
Brian Chinappe
[8] …is a Halton Regional Police Officer of 21 years' experience. He received a dispatch at 20:17 to attend at the ice arena to bring an ASD to another officer. The officer told dispatch he had a device and went to the location and arrived at 20:28 and gave the device to P.C Grant.
[9] The officer stated that the device was an Alcotest but he did not note the serial number and did not know if he had tested it at the beginning of his shift but it was his usual practice to do so. He stated that he was near the man when P.C. Grant administered the ASD. It registered a fail, P.C. Grant arrested him, the defendant was not cooperative. The officer assisted and repeated to the defendant he was under arrest "for being over the legal limit". He also stated "I was re-affirming what P.C. Grant had told him".
[10] He searched the vehicle and found 6 empty cans of various sizes of beer in the centre console along with 4 empty bottles of alcohol each 50 millilitres in size. He believed that P.C. Grant assists with the search but he could not specifically recall.
[11] The officer noted the defendant being put in the back seat of the cruiser and that was the extent of his involvement. The officer did not notice any other signs of impairment.
Jonathan Grant
[12] …is a Halton Regional Police officer who had over a year of experience, at the time of this event. His actions are as follows:
| Time | Event |
|---|---|
| 20:05 | P.C. Grant received information from dispatch that there was a possible impaired driver and a witness had said that he was following a vehicle and that vehicle was "all over the road". |
| 20:15 | The officer attended at the Ice Sports parking lot, 2300 Cornwall Road, Oakville. He confirmed the licence plate information and the vehicle was pointed out by the witness. The driver was stepping out of the car and the officer spoke with him. The officer stated that he was investigating the erratic driving and that he may be impaired. The defendant at that point was adamant that he wanted to go into the arena and the officer had to point out he was under investigative detention several times and that the officer wanted to do an ASD test on him. The officer said there was a faint smell of alcohol from the defendant. The officer gave the information of the erratic driving and the smell of alcohol as his suspicion that the defendant had alcohol in his body. The defendant eventually waited for the test. |
| 20:17 | The officer called over the air for an ASD to be brought and he heard Officer Chinappe respond and he believed that the officer was within 10 minutes of him because Officer Chinappe was working the same zone as him. The officer stated that he did not have grounds to make an arrest for impaired driving at that time. |
| 20:25 | The officer read the formal ASD demand to the defendant. |
| 20:27 | Chinappe arrived with the ASD which the officer noted as an Alcotest 6810/arch0145. |
| 20:29 | The officer did a functional test on himself and it was a 0 result. |
| 20:30 | The officer administered the test on the defendant and registered a "Fail". The officer believed a fail would occur when the defendant had more than the legal limit of alcohol in his system and is essentially over 80. The officer said the device would fail when he was over 80 milligrams of alcohol in 100 millilitres of his blood. |
| 20:31 | The officer testified that he believed he had enough grounds to arrest the defendant for impaired driving. He stated that his grounds were the evidence from the civilian of the erratic driving and odour of alcohol and the failed ASD test. |
| 20:32 | The officer arrested the defendant. The defendant was taken to the officer's cruiser. The officer stated at that point he noticed that the defendant was swaying and stumbling and had to be assisted to the cruiser. The defendant was placed in the back of his cruiser. The officer was summoned over to the defendant's vehicle by Chinappe who pointed out the various beer cans and bottles. The officer returned to his cruiser. |
| 20:43 | The officer read the formal arrest and caution. |
| 20:44 | The officer read the rights to counsel and breath demand. The defendant at that point said he did not want to talk to a lawyer. |
| 20:45 | The officer left the scene. |
| 20:56 | The officer arrived at Halton Regional Police, 20 Division. |
[13] The officer facilitated the defendant speaking to duty counsel, provided his grounds to the arresting officer, got the breath test results and then served the certificate of analyst upon the defendant. The readings are 340 (at 21:27) and 330 (at 21:49) mgs of alcohol in 100 millilitres of blood.
Michael Wheeler
[14] ...is the breath technician with Halton Regional Police. He testified that he performed the breath tests which resulted in the readings noted above. He testified that his observations of the defendant consisted of a smell of alcohol, a flushed face, and watery and glossy eyes. He described the impairment as "slight". The breath test video was played and there did not appear to be any further signs of impairment. The officer was quite surprised at the readings of 340 and 330. He testified that it is usual practice that when readings are over 300, then the accused is taken to the hospital. This was not done in this case as this accused was showing no signs of distress.
Mark Underwood
[15] ….is a Sergeant with the Halton Regional Police with 27 years' experience. He booked the defendant into the station, made sure he spoke to his counsel of choice (duty counsel) and then released the defendant to the custody of his mother and grandmother at 02:56 the next morning. He believed that this was an early release based on the high readings and he took time to explain things to the grandmother. He did not notice any signs of impairment and felt the defendant fully understood all his rights.
Analysis
[16] The defendant has brought several Charter applications, including a s.8 (insufficient reasonable and probable grounds to arrest and make the breath demand), and a breach of his s.10(a) and 10(b) rights.
[17] Part of these applications concerned an analysis of the evidence of Officer Grant. Specifically, the defence pointed out several inconsistencies in his evidence.
[18] The officer believed he had spoken to the witness before speaking to the defendant. The dash cam video shows the officer going up and speaking to the defendant without talking to the witness. That does not preclude that the officer could have been directed without any speech and in any event, the officer goes right up to where the defendant's car is.
[19] Originally the officer located the defendant stepping out of his vehicle but the dash cam shows the defendant at the trunk of his car.
[20] With regard to his note taking, the defence pointed out some things not in notes such as word "investigative" nor words "suspicion". The defence also noted other issues in his evidence not in his notes. I deal with a significant issue below, where the officer in his initial evidence, arrests the defendant for impaired driving rather than driving with excess alcohol.
[21] I have reviewed his evidence in its totality. On the whole, I found him to be a truthful witness and was trying to recount the events from his notes and his memory. As is the case with most younger officers, more comprehensive notes would be an asset. However, I am not prepared to discount his evidence just because all his reference are not there. He did not, for example, make allegations of indices of impairment which are not in his notes.
Was the defendant promptly told of the reasons for his detention?
[22] I believe that based upon the evidence noted above, that the defendant was aware within moments of interaction with the officer, that this was a drinking and driving investigation. I accept the officer's statements that he made inquires early as to whether the defendant had anything to drink and that the officer wished the defendant to stay at the scene while he obtained an ASD device.
[23] I believe that the defendant would be in an informed state within a minute to a minute and-a-half. I find that this does not offend any Charter-protected interests. I contrast this with the decision in R. v. Steele, where the officer walked away from the defendant at the driver's window to go to her car to order an ASD and make "half-page of notes". That is not the case here.
[24] The defendant did not testify on this issue, and did not have to. I have the officer's evidence and I believe he satisfied this requirement.
[25] I note the words of Dambrot J. in R. v. Kumarasamy:
[43] While there is no limitation on s. 10(a) in the roadside screening context, nonetheless the courts have not taken a formalistic approach to the adequacy of the information given to a person who has been arrested or detained. This is also plain from Evans. There the Court focused on substance over form, specifically what a person can reasonably be supposed to have understood, rather than the precise words used. McLachlin J., as she then was, stated, at p. 888:
When considering whether there has been a breach of s. 10(a) of the Charter, it is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, which must govern. The question is whether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline to submit to arrest, or alternatively, to undermine his right to counsel under s. 10(b).
In making the ASD demand, did the officer fail to make it forthwith?
[26] The breath demand need not be in any specific language. I believe that within two minutes of the interaction at the roadside, (20:17) the officer let the defendant know he wanted him to remain at the scene to perform and ASD test. He had asked him questions about alcohol consumption and his reported erratic driving.
[27] He called for an ASD device over the air in the presence of the defendant. I believe that this information would let the defendant know that the officer was demanding that he perform an ASD demand. The formal demand was not made until 20:25, some eight minutes later. The officer was waiting for an ASD to arrive. The officer was also having conversations with the defendant as he wished to leave the area and go into the arena. The officer had to repeat many times that the defendant should not leave. The officer had to be attentive to the fact that this defendant did not wish to remain. While the defendant eventually changed his mind, that took some time and that was clearly the focus of the officer's attention for that time.
[28] The officer was at all times doing his duty. I believe one action followed from the other. I cannot say that the formal demand offended the requirement of forthwith. As stated by Rose J. in R. v. Channa, there was a fluidity to the scene. Any possible delay here did not rise, in my opinion, to a constitutional violation.
[29] I agree, and I find that the ASD demand was made within the rubric of the "forthwith" requirement.
Should the defendant have been provided his s.10(b) rights while waiting for the ASD to arrive?
[30] The defendant was essentially told about the ASD at approximately 20:17. The officer called for an ASD. I find that the officer knew which officer was coming and while he did not have an exact time, he knew the device was within the patrol area. I find that the officer was spending several minutes convincing the defendant that he could not leave and go into the arena. By 20:25, the defendant was prepared to stay and the officer read the formal ASD. It arrived at 20:28 and the officer immediately took steps to operate the device, he performed the self test at 20:29, and then immediately did the test on the defendant. This is a period of 11 minutes.
[31] There is no specific requirement of a right to counsel before taking the ASD test. In certain circumstances courts have found that there is sufficient time to allow it to happen, where the screening test is delayed. I find that the test, if the ASD was available could have been started within three or four minutes of the demand. Here the matter was stretched a further six to seven minutes. Quite frankly I cannot see how this would have given the parties the time to consult counsel. I believe the officer had reason to believe that it would not be a long wait, and as things turned out, it was not a long wait. I believe this is in accord with the reasoning in R. v. Mohamed, 2015 ONCA 335, and R. v. Rienguette, 2016 ONCA 450.
[32] I cannot find in these circumstances that there was any triggering of the rights to counsel between the ASD demand and the arrival of the ASD at the scene.
Did the officer have reasonable and probable grounds to arrest?
[33] At the time of arrest the officer had the information that the defendant had been driving erratically, he had a smell of alcohol on his breath and he failed the ASD test.
[34] This clearly gave the officer enough objective grounds to arrest for driving with excess alcohol, which in fact the defendant was indeed charged with and is being tried on that charge.
[35] In his initial evidence, he spoke only of an arrest for "impaired" driving. Upon further questioning by the Crown, he stated that the arrest was for impaired over 80. The reference to over 80 was not in his contemporaneous notes but it was in the will-say statement he prepared later that evening.
[36] This was a very inexperienced officer. He was probably also inexperienced in testifying in court. There have been many cases decided that an officer who makes a mistake at the roadside with regard to the actual charge is not deprived of his reasonable and probable grounds to make the arrest to the charge which is actually laid.
[37] Does the fact that the officer testified in court and continued that error, is that sufficient to say that he lacked subjective grounds to arrest for driving with excess alcohol. In this case when the officer was speaking of the ASD test, he correctly set out that a failure would indicate that the defendant was over the legal limit. Having that result, he clearly had subjective belief that the defendant was indeed over the legal limit. Having been of this belief, does his failure to say that was the belief for his actual arrest deprive him of those subjective grounds? I do not think it does.
[38] Even if it does, I have two other matters to consider. I believe that Officer Chinappe who was there and observed the fail also had reasonable and probable grounds to arrest and did so for "being over the legal limit", and I was re-affirming what P.C. Grant had told him."
[39] That is, in my opinion sufficient confirmation that Officer Grant did indeed arrest the defendant for driving with excess alcohol.
[40] Secondly, I would have to assess whether he had sufficient grounds to arrest for impaired driving. Does the information of the erratic driving coupled with the failed ASD give the officer sufficient grounds to also arrest for impaired driving? As stated in R. v. Censoni, the scrutinizing of the grounds must recognize the context within which the police officer's obligation operates. The degree of impairment is of any degree from slight to great. I believe that while the evidence that a driver has more than 80 milligrams of alcohol is not proof in court of impairment. It is some information coupled with the information of the erratic driving to give an officer reasonable and probable grounds to believe that the defendant's ability to operate a motor vehicle is impaired by alcohol.
Were the 10(b) rights of the defendant infringed because of the time from arrest to the reading of the rights to counsel?
[41] The defence argument is essentially that the defendant was arrested at 20:32, and the rights to counsel were not given until 20:44. That was 12 minutes. The officer testified that he searched the defendant, placed him in handcuffs, brought him to his cruiser, and then attended at the defendant's car when he was summoned by Officer Chinappe. He was there for a few moments discussing the fruits of Officer Chinappe's search. He then returned to the cruiser, got himself settled, read the caution, (which started at 20:43), and then followed with the rights to counsel, and the breath demand.
[42] The defence cited to me several cases where the trial court decided that the rights to counsel had not been provided quickly enough. There is no definitive time nor definitive circumstance which will dictate this issue. I note in this case that the officer was at all times attentive to the duties required of an officer who is investigating a drinking driving offence at the roadside. There is no indication that he was taking excessive time to pause and reflect on any issue, or deal with anything which was not associated with this investigation.
[43] In the context of these investigations, I would not expect any officer to provide rights to counsel after arrest before putting the defendant into his cruiser, which would necessarily involve searching and cuffing an accused and bringing him to the cruiser. I do not think it inappropriate to read the caution first as that sets out the offence for which he is charged. That the rights to counsel follows some seconds (or minutes if some sort of explanation is required) does not in my opinion offend any immediacy requirement.
[44] In this case the only possible reason to find unforgiveable delay was because the officer reacted to the summons from the officer who was searching the car. While Officer Chinappe does not specifically confirm that Officers Grant attended at the car, he did say: "It seems Grant assists with the search but I cannot recall'. I accept that Officer Grant did indeed go up to the defendant's car at request of Officer Chinappe.
[45] I also accept, that until he got to the car and spoke to Officer Chinappe, he did not know what the officer had found. It could have been something serious and could have led to further and different charges from the ones that this defendant is facing today. He may have had to caution this defendant about more charges. The fact that this was not the case does not detract from my opinion that the officer did not act improperly from seeing to this issue before proceeding with the caution, rights to counsel and breath demand. Like the "forthwith" requirement as discussed above, the immediacy requirement in the rights to counsel must still strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.
Section 24(2) Analysis
[46] I have rejected the many Charter arguments dealing with the timing of the various issues at the roadside. Notwithstanding that, I will still assess that if I found for the defence on one or more of these issues would I reject the breath test evidence.
[47] Under the analysis in R. v. Grant, I must assess the state infringing conduct. I specifically find that there were several reasons that there may have been a delay in seeing to some of these issues, (i.e., dealing with the defendant who did not want to stay at the scene – waiting a short time for the ASD – speaking to Officer Chinappe about the fruits of his search). I find that there was nothing systemic or particularly egregious about the officer's conduct. That in hindsight things may have been handled differently does not make the actions of the officer serious. There was no intentional or systemic rational why these steps took sometime longer then they could have.
[48] On balance, I feel this issue favours admission.
[49] With regard to the Charter-protected interests of the defendant I am reminded of the case of R. v. Jennings. In that case, the Ontario Court of Appeal discussed the oft quoted line from R. v. Grant that the case of breath samples is a minimally intrusive search.
[50] I find that the affect on the Charter-protected interests of the defendant in this case are minimal and would therefore be neutral to the Grant analysis.
[51] With regard to the third prong of the Grant test, the investigation of impaired driving cases has a high societal component and this ground would favour its admission.
Conclusion
[52] I have found that there are no Charter breaches in this matter but if some of these time limits have been breached, on a section 24(2) analysis, I would not exclude from evidence the results of the breath tests.
[53] I therefore find the defendant guilty of the offence of operating a motor vehicle with a blood alcohol concentration of 330 milligrams of alcohol in 100 millilitres of blood.
Is the defendant guilty of the offence of impaired driving?
[54] The decision in R. v. Stellato states that a person can only be found guilty of the offence of impaired driving if the Crown has proven beyond a reasonable doubt that the defendant was exhibiting some signs of impairment, however slight.
[55] The total evidence of impairment in this case consists of the following:
(i) The defendant smelled of alcohol. The breath readings proved that the defendant had alcohol in his body;
(ii) The defendant stumbled at the roadside;
(iii) The defendant's face was flushed, and his eyes were glossy and watery;
(iv) The defendant was driving for a significant period of time and weaved within his lane at least five times and went out of his lane partially into opposing traffic one time.
[56] The most important factor to consider in all of this is the actual driving. In this case, I not only had the viva voce evidence of the civilian witness, I could see the driving myself in the video that the witness took. I note that there were several instances of an unnatural movement in the lane. While I would not characterize it as "all over the road", it certainly shows a lack of physical coordination and concentration which is part of what is required in operating a motor vehicle. The movement of the vehicle into the other lane is most illustrative. I also note, it was followed by an excessive correction to the right.
[57] In other words, it was not just a deliberate attempt to take a mild shortcut. I find it was evidence of an impairment of an essential skill necessary to safely operate a motor vehicle. I have considered that some other aspects of his driving (stopping and turning on two occasions) seemed to be done so without issue, that does not in my opinion detract from the actions I have referred to above.
[58] I therefore find upon all of the evidence that there is proof beyond a reasonable doubt that this defendant, while operating a motor vehicle was to some degree impaired by the consumption of alcohol.
Released: January 24, 2020
Signed: "Justice P.N. Bourque"