ONTARIO COURT OF JUSTICE
CITATION: R. v. Sweers, 2021 ONCJ 271
DATE: May 11, 2021
COURT FILE No.: 18-424
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
DANIEL SWEERS
Before Justice Robert S. Gee
Heard on February 19 and 26, 2020, February 11, 2021 and March 18, 2021
Reasons for Judgment released on May 11, 2021
S. Wollaston and G. Settimi............................................................ counsel for the Crown
R. Baran............................................................................................ counsel for the Accused
Gee J.:
INTRODUCTION
[1] At approximately 10:15 pm on November 3, 2018, the accused, Daniel Sweers, put his 2011, Ford F250 pick up truck into a shallow ditch in front of 115 Unity Side Road, Caledonia, Ontario. A homeowner in the area, saw the tuck in the ditch and called police. The OPP responded and as a result of the observations made by the officer on the scene, Mr. Sweers was arrested for impaired driving. A demand for samples of his breath was also made. Later at the OPP Station, Mr. Sweers provided the first sample of his breath but is alleged to have failed to provide a second sample. As a result, he has also been charged with failing or refusing to comply with a proper demand for breath samples.
ISSUES
[2] The accused has alleged his s. 8 and 9 Charter rights were breached in three ways. First, the officer lacked reasonable and probable grounds to arrest him for impaired, and to make a demand for samples of his breath. Second, is an overholding issue. After the investigation was complete and his processing finished, the accused was not released from the police station as soon as he should have been. The third breach alleged is what’s known as a “Mok” issue. It’s alleged that the accused’s privacy interests were violated when he was videotaped urinating in the cells at the police station. As a remedy for these breaches, the accused seeks and order pursuant to s. 24(1) of the Charter staying the charges or an order pursuant to s. 24(2) excluding all the evidence against him from the trial.
[3] If these Charter based defences fail, then the accused urges me to find the Crown has failed to prove beyond a reasonable doubt his ability to operate his motor vehicle was impaired and even if it was, the Crown has failed to prove he was in care or control of his motor vehicle at the time. As well, it is the accused’s position that the Crown has also failed to prove that the failure by the accused to provide a second sample of his breath was done wilfully.
[4] The balance of these reasons will explain why I find that the accused’s Charter rights were not breached and also why I find the Crown has proven the allegations beyond a reasonable doubt and findings of guilt will be made on both charges.
FACTS
[5] At approximately 10:15 pm on November 3, 2018, David Zimmerman was in his house in Caledonia. He heard a crash outside and when he looked out, he saw a truck in the ditch. The truck was still running and the driver was moving back and forth trying to get it out. Mr. Zimmerman’s wife dialled 911 and the police arrived within 15 minutes.
[6] Officer Chris Lindley of the OPP was the first officer to arrive on the scene. When he arrived, the truck was stuck in the ditch and the accused was still in the driver’s seat. As he approached the truck, the accused got out of the truck and approached Officer Lindley. When he did so, Officer Lindley saw a container of alcohol with a red label in the centre console cup holder. The accused asked him if he could tow him out of the ditch and Officer Lindley told him he couldn't. During this conversation, Officer Lindley detected a strong odour of alcohol on the accused’s breath and noticed that his speech was slurred. He also noticed the accused’s eyes were glossy, his face was red, and he appeared uncoordinated and unsteady on his feet.
[7] Based on these observations, Officer Lindley stated he formed grounds to believe that the accused’s ability to operate a motor vehicle was impaired by alcohol. As a result of forming this belief, he arrested him at 10:38 pm, and made a demand for samples of his breath.
[8] Officer Ryan Waugh had arrived on the scene at about the same time as Officer Lindley. Like Officer Lindley, he testified that as the police arrived, the accused exited the truck from the driver’s seat and asked the officers if they could pull him out of the ditch. Officer Waugh also stated he detected an odour of alcohol coming from the accused’s breath, that his eyes appeared glossy, his speech was slurred, and he appeared unsteady, swaying while standing on the road.
[9] After his arrest, the accused was transported by Officer Lindley to the Cayuga OPP Detachment. Upon entering the sallyport, there is a sign on the wall notifying all persons that all areas of the detachment are being video recorded. Officer Lindley testified upon entering the sallyport with the accused he pointed this sign out to him. Once inside while being processed, he testified he again advised the accused he was being videotaped. In addition, he offered to give the accused a privacy gown or blanket to be used while going to the washroom in the cells. He stated he explained to the accused that he could put it over himself so his private areas are not observed on camera while he is using the washroom. Officer Lindley testified the accused declined the offer of a privacy gown or blanket and that he did not demonstrate for the accused how to use it.
[10] After the processing is complete, the accused was taken to cell 1 in the detachment to be lodged. He was escorted to the cell by Officer Lindley and Officer Waugh. The video of the accused entering the cell was played. It shows that notwithstanding he declined the offer of a privacy gown or blanket, Officer Waugh placed a blanket between the bars in the cell door. As well it shows that immediately upon entering the cell, the accused went directly to the toilet where he began to urinate. On the wall immediately above the toilet is a large sign, estimated by Officer Lindley to be approximately 2.5 feet by 3 feet that contains the image of a camera and indicates that the cell area is under video surveillance.
[11] Not too long after this, the accused was removed from the cell to speak to duty counsel. After completing his call, as he was being taken to provide his breath samples, the accused indicated he needed to go to the washroom again. He was taken back to the cell and he again urinated into the toilet. From the video the blanket Officer Waugh placed in the cell door is still there, unmoved.
[12] Not long after this, at approximately 12:20 am the accused was turned over to the Qualified Breath Technician, Officer Ross Fairley. He had the Intoxilyzer prepared and set up and explained the procedure to the accused. At 12:32 am he commenced the taking of the first sample from the accused. At first the accused was not blowing into the instrument but after some encouragement from Officer Fairley, the accused provided a suitable sample. The result of this sample was that the accused had 216 milligrams of alcohol in 100 millilitres of his blood.
[13] During the breath sampling process Officer Fairley described the accused as very red in the face, his eyes were watery and bloodshot, and he detected a strong odour of alcohol coming from his breath. He also described his balance as “unsure.”
[14] The taking of the second sample began at 12:55 am. Officer Fairley stated this time the accused would start and then stop his breath during the sample. He would also hold his breath and puff out his cheeks like he was blowing however there was no air flow going into the Intoxilyzer. He continued to instruct and encourage the accused to provide a proper sample but he didn’t do so.
[15] The accused then started to complain of chest pain and shortness of breath. He clutched at his chest and slid down off the chair. The breath sampling process was stopped and the police called for EMS for the accused at 1:03 am. The accused continued like this and appeared disoriented. Not long after he appeared to regain his composure and asked the officers what had happened. EMS arrived and transported the accused to the hospital.
[16] Officer Fairley at this point began shutting down the Intoxilyzer. When done, he packed it up and left with it for the hospital. He arrived at the hospital at 1:42 am. At 1:58 am, Officer Fairley was given permission by hospital personnel to set up his equipment.
[17] By happenstance, on this night at 2:00 am, daylight saving time ended. As such at 2:00 am, the clocks automatically rolled back and reset to 1:00 am again. The next event of significance occurred at 1:06 am which, but for the time change, would have been 2:06 am. At that time, Officer Fairley was advised by the treating physician that the accused was medically cleared to provide a sample of his breath.[^1] Since he was advised of this, at 1:27 am he attempted to obtain a second breath sample from the accused.
[18] During this sample, Officer Fairley advised the accused to do again, exactly what he did when giving the first sample. During this sample though, Officer Fairley stated the accused would make it look like he was appearing to blow, but there would be no airflow through the breath tube. As well he would then start and stop blowing. Officer Fairley allowed the accused to take a brief break and then try again. But again, the accused would start to blow, there would be some airflow registering and then the accused would stop. He was given another opportunity but this stop and go pattern continued. The accused also even removed his mouth from the mouthpiece, contrary to Officer Fairley’s instructions.
[19] Given the continuing nature of this behaviour, Officer Fairley cautioned the accused about refusing to provide a proper a sample. Notwithstanding this caution, the behaviour continued and Officer Fairley was satisfied the accused was refusing to provide a proper sample and ended the procedure which resulted in this additional refusal charge.
[20] After this, the accused was returned to the station and lodged again in cell 1. At 6:00 am, Sgt. Johnathan Kurtz began his shift as the Sergeant in charge of the detachment. At approximately 5:45 am he spoke with Officer Lindley and Officer Fairley about the accused and the plan for his release. They told Sgt. Kurtz that they felt the accused would be sober enough and it would be safe to release him at 8:00 am.
[21] As 8:00 am approached, Sgt. Kurtz spoke to the accused’s wife, who had decided she would pick him up, even though they were then separated. At some point enroute, Ms. Sweers phoned Sgt. Kurtz again to advise she was lost. He provided her with directions and by 8:30am she had still not arrived. At 8:43 am Sgt. Kurtz retrieved the accused from the cell and provided him with his release papers and escorted him to the lobby to wait for his ride.
[22] The accused testified he was 36 years old and owned his own masonry business, he was separated from his wife and together they share two young children. Earlier on this day he was at his cousin’s home in West Flamborough working in the shop on a piece of equipment. His cousin’s home was not far from where the accused lived at the time in Dundas, Ontario.
[23] He stated he arrived at his cousin’s place at about 1:00 pm. At the time his marriage was in the process of breaking down and he was feeling the stress from that. While working on the machine that day, he stated he and his cousin were drinking Coors Lite beer. Between 1:10 pm when he began to drink until he stopped at approximately 5:00 pm, the accused estimated he drank about 8 to 9 beers.
[24] The accused said that even though he stayed working at his cousin’s until 9:00 pm, he stopped drinking at about 5:00 pm. At 9:00 pm, he left his cousin’s and headed home. He grabbed a few items there and left. He and his wife had been in a confrontation before he went to his cousin’s. He wanted to avoid her for the rest of that day so he decided to drive to his seasonal trailer he kept in Port Maitland, approximately an hour away to spend the night there.
[25] He stated he left about 9:30 pm from his house and headed to the trailer. At some point he needed to urinate so he stopped on the side of the road and did so outside the truck. As he got back in the truck, he said the grass was wet and his back end slid down into the ditch and then his front end did as well. He put his truck in four-wheel drive and tried to get it out but couldn’t.
[26] Once he was unable to get his truck out despite his best efforts, he used his phone to call a friend to see if he could come pull him out. His friend however, couldn't. He stated that even though he had called his friend from inside the truck using the Bluetooth, when that didn’t work out, he exited the truck and was standing near the rear driver’s side tire googling tow companies on his phone when the police arrived.
[27] He said two police officers arrived in separate cruisers at about the same time. When the officers approached, he asked them if they could help him obtain the name of a tow company to assist him. He said that Officer Lindley, without saying much very quickly grabbed him, arrested him, and put him in the rear of the cruiser.
[28] He states he was then transported to the detachment. As they entered through the sallyport, he states the officers advised him he was under video surveillance but denies they pointed out the sign to him that was on the wall in the sallyport to this effect or explained to him what areas were under video surveillance.
[29] The accused as well during the lodging process denied he was ever offered a privacy gown to use in the cell while going to the washroom. When he went into the cell to urinate for the first time, again he denied that the sign above the toilet warning that he was on video was ever pointed out to him. He stated while he was urinating on this first occasion, he read the sign advising he was being video taped and this caused him to feel violated. He also stated he didn’t know what the blanket or object was that was placed in the cell door was as it was not drawn to his attention.
[30] When he urinated in the cell the second time he was again asked if he knew he was being videotaped and he stated he was unaware he was. This is difficult to reconcile with his earlier testimony that he read the sign above the toilet while urinating the first time, understood it meant he was being videotaped and it caused him to feel violated.
[31] In discussing the first breath sample he gave, the accused said he didn’t have a problem giving it, other than he had to blow longer than he realized. As for he second attempt, he stated he began feeling tightness and pain in the left side of his chest. He attributed the episode to the stress he was under as a result of the break-up of his marriage, the ensuing discussions he had to have with his children about it, the problems it would cause him financially and now this issue with the police. He stated he may have had one discussion with his doctor about the stress he was under prior to this night and had seen a therapist but it hadn’t helped much.
[32] The accused’s evidence in relation to the second breath sample attempt is not clear. When asked in direct examination about the second sample he stated he was trying his best to provide it. It was unclear if he was referring to the attempts at the hospital or if he meant the attempts immediately before his medical episode. As his examination in chief continued it seemed he was referring to the attempt at the detachment immediately before his medial issue. I come to this conclusion because he testified while at the hospital, he spoke to the doctor in private for 20 to 30 minutes while the police were waiting outside his room. When asked what happened at the hospital after the he and the doctor finished, he said he was immediately returned by the police to the detachment and placed back in the cell.
[33] This became even more clear under cross examination. When this issue was discussed the accused initially stated he was trying to provide the sample. However, after further questioning, he admitted that even though he could recall details of the night like the exact quantity he drank that day, his talking to the doctor at the hospital, discussions with the police after returning to the detachment, he eventually admitted could not remember Officer Fairley attempting to get a second sample from him at the hospital. He said this lack of memory wasn’t as a result of his impairment that night, it was simply due to the passage of time, it had occurred just too long ago for him to remember it.
[34] Once back in the cell at the detachment, he states sometime between 4:00 and 5:00 am he spoke to Officer Lindley and asked if he could call for an Uber. His plan he stated was to go to his mother’s house for the remainder of the night. He didn’t want to call and worry her that late so he wanted to find his own way there. He stated Officer Lindley told him no without any explanation. He asked then if he could call a taxi and again without any explanation was told no.
[35] After these requests were denied he remained in the cell until about 9:00 am when he was brought up and released. He waited outside of the detachment for 10-15 minutes when his mother arrived and he finally left.
ANALYSIS
Charter Issue One – Reasonable and Probable Grounds
[36] The accused has argued that Officer Lindley lacked reasonable and probable grounds to arrest him for impaired and to make a demand for breath samples. I disagree.
[37] The test for a proper arrest under the former s. 253(1) and breath sample demand under 254(3) were not onerous. The test was whether objectively, there were reasonable and probable grounds to believe the person's ability to drive was even slightly impaired by the consumption of alcohol. It is not necessary that the accused be in an extreme state of intoxication before an arrest and demand could be properly made. See: R. v. Bush, (2010) ONCA 554 at par 46-48.
[38] In assessing whether objectively, reasonable and probable grounds exist, the totality of the circumstances must be considered. It is improper for a trial judge to dissect the officer’s grounds in isolation. There is no scorecard or minimum number of indicia required before concluding reasonable and probable grounds objectively exist. Additionally, that there might be other explanations for some of the indicia observed by the officer in arriving at his or her opinion does not have the effect of eliminating them from the analysis or render them unreliable. As well, there is no minimum time period or mandatory questions that must be asked before an officer can objectively form reasonable and probable grounds. See: R. v. Bush par 54-58.
[39] In this case, when Officer Lindley arrived on the scene, he was met initially with what could be described as an unexplained, single vehicle accident. The accused’s large truck was in the ditch without the apparent involvement of any other motor vehicle. The accused was still in the driver’s seat and when he stepped out Officer Lindley was able to see an open container of alcohol in the centre console. The accused immediately engaged the officers in conversation and asked them to pull him out of the ditch. The accused’s face appeared red and flushed, his eyes were glossy and his speech was slurred. A strong odour of alcohol was emanating from his breath and he was unsteady on his feet.
[40] These indicia, when viewed objectively, easily meet the threshold for Officer Lindley to believe the accused’s ability to operate his motor vehicle was at least slightly impaired by alcohol and thereby gave him the grounds to arrest the accused and make a breath demand.
[41] The accused challenged both that the observations were made and their impact on the analysis. First the accused denied he was unsteady on his feet or that he slurred his speech. Next, the accused also pointed out that Officer Lindley did not note precisely which words uttered by the accused were slurred. Further, it was also argued that since Officer Lindley had never dealt with the accused before this night, he was unfamiliar with the usual state of flushness of the accused’s face or his normal speech patterns and, the time from when he arrived on scene until he arrested the accused was only about 2 minutes.
[42] Dealing with the accused’s challenges, I would start by noting that I accept the evidence of Officer Lindley generally and specifically in relation to this aspect of the case. He came across as honest and straightforward. He did not appear to embellish his evidence in any way and his answers to questions I found, were responsive to the questions asked and he was not shaken in cross examination. Additionally, his evidence in this regard was consistent with the evidence of Officer Waugh who also made the same observations of the accused at the scene.
[43] The accused on the other hand overall, was not a believable or reliable witness. There were too many times during his testimony where he guessed at answers or couldn't remember. As well, there was the inconsistency noted earlier where he admitted reading the sign above the toilet the first time he urinated that pointed out he was being videotaped only to deny later in his testimony that when he urinated the second time he knew he was under video surveillance. Furthermore, it was ultimately revealed he could not even remember the attempt to get a breath sample from him at the hospital and last, although he denied he was impaired or effected by it, he admitted to having consumed a significant quantity of alcohol on that day.
[44] In these circumstances I accept these were the observations made by Officer Lindley at the scene that day. The accused sought support for the argument that Officer Lindley ought not to have relied on the flushed face or slurred speech due to his lack of prior dealings with the accused by reliance on the case of R. v. Cooper [1993] O.J. No. 501. As well it was implicit in the accused argument that 2 minutes from arrival on scene to arrest was too short a period to make a proper assessment.
[45] Approaching the reasonable and probable grounds assessment like this though, is precisely what the Court of Appeal in Bush above said is incorrect. A reviewing judge should not assess each indicia in isolation. The totality of the circumstances the officer was presented at the time are what is to be assessed. As well, like the court said in Bush, there is no minimum time required to make the assessment.
[46] In this case, as noted I accept Officer Lindley evidence. I believe he made the observations he said he did and I believe he subjectively believed the accused ability to operate his motor vehicle was at least slightly impaired by alcohol. I also find this subjective belief was objectively reasonable. That he came to that conclusion in approximately two minutes is also of no moment. In the circumstances that is more than enough time to make the assessment and does not detract form the objective reasonableness of the arrest and the demand.
[47] It is for these reasons I find the arrest and subsequent demand for breath samples were both lawful. The accused’s s. 8 and 9 Charter rights were not violated by his arrest and the demand.
Charter Issue Two – Overholding
[48] Once the police complete the breath sampling procedure and all other necessary aspects of the investigation are complete, s. 498 of the Criminal Code mandates the police release the person as soon as practicable, unless it is necessary in the public interest that the person be detained to prevent the continuation or repetition of the offence or the commission of another offence. Holding a person beyond the time they may otherwise be releasable may breach the person’s s. 9 Charter rights. See R. v. Gonsalves, 2016 ONCJ 768.
[49] Once the police have decided it is not necessary in the public interest that the person be detained, they must then determine when it will be appropriate to release the accused. A non-exhaustive list of the factors the police should consider when making this assessment are; the accused’s blood alcohol level, whether the accused was charged with impaired operation, his or her level of comprehension, that the accused is prohibited by statute from driving a motor vehicle (the administrative license suspension), that the accused’s vehicle would have been impounded, whether there was a responsible person available to pick up the accused although the officer-in-charge has no authority to bind the responsible person as a surety would be bound, whether the accused had a criminal record and if so, its contents, whether the accused had outstanding charges, his or her attitude and that by drinking and driving the accused has recently exhibited poor judgment. These factors were set out by Justice Durno in R. v. Price, 2010 ONSC 1898, at par 93, and have been followed in subsequent cases, such as Gonsalves above and R. v. Lorenzo, 2016 ONCJ 434.
[50] In this it is argued Sgt. Kurtz, who was the Sergeant in charge of the detachment, should have made an independent assessment of when it was reasonable to release the accused when he came on his shift and he didn’t. Instead, after being briefed by Officers Lindley and Fairley, he simply accepted their recommendations to release at 8:00 am. His evidence of the steps he took, independent of the advice he received from Officers Lindley and Fairley was vague. He admitted he could not recall if he attended the cell area and spoke to the accused at any time between the start of his shift at 6:00 am and approximately 8:40 am when he brought him to the lobby and released him.
[51] The accused’s position is that Sgt. Kurtz as the Office in Charge of the Detachment is the one who is legally obligated to determine the appropriate release time and that he abdicated his responsibility here by simply acquiescing to the advice of the two other officers.
[52] I find that it would have been better if Sgt. Kurtz had documented his assessment better including whether he interacted with the accused directly before his release, however I find in this case that deficiency is not fatal. What Sgt. Kurtz is required to do is consider all the circumstances. The information that goes into that consideration can come from different sources, other than solely from the accused.
[53] Sgt. Kurtz discussed the situation with the two officers who had the most direct interaction with the accused throughout the investigation. This was an appropriate course of action for him. Seeking and relying on the advice of officers he trusts and who were most involved in the case is something he should do. As well, he had access to and reviewed the case brief so was aware of the details of the arrest and investigation.
[54] As stated earlier, it would have been better had Sgt. Kurtz documented his decision-making process better, but his deficiencies in this regard have not resulted in a breach of the accused’s Charter rights. I find that notwithstanding the lack documentation or recollection by Sgt. Kurtz, the timing of the release of the accused as happened here was appropriate. The factors mentioned in Price above that should be considered in the assessment were made by the officers in this case.
[55] The first factor is the accused’s blood alcohol level and whether he was charged with impaired, which in this case he was. Although the police received only one breath sample result, it was appropriate for them to use that result in their assessment. As will be recalled, that one sample produced a reading of .216, nearly three times the legal limit. Officer Fairley testified one of the factors he used in determining an appropriate release time was the accused’s blood alcohol level. He stated he thought a release when the accused is closer to the legal limit of 80 milligrams of alcohol in 100 millilitres of blood would be safer for the accused. He used an elimination rate of 15 milligrams of alcohol from the blood per hour and with that rate in mind, and all the other circumstances of the matter, settled on approximately 8:00 am. Taking into account the change from daylight saving time, that would have been approximately 8.5 hours after the accused provided the first sample at 12:32 am. Using that elimination rate would have resulted in the accused blood alcohol level at approximately .89, still not below the legal limit but closer to it.
[56] The next factor is whether there was someone to pick up the accused. Prior to his release there did not appear to be. Officer Lindley testified the accused had earlier said his wife could pick him up were he to be released but when he spoke to her while trying to arrange for a lawyer for the accused, she indicated at that time she would not. As well, when the accused asked for an Uber or taxi later in the night, he testified it was because he did not want to call his mother to pick him up at that time. It was the middle of the night and he didn’t want to wake and worry her.
[57] The decision to deny him a release at that time to an Uber or taxi I also find was reasonable. An Uber or taxi driver isn’t a responsible person in this context. The accused’s blood alcohol level at that time would have been significantly over the legal limit, Officer Lindley testified the accused still appeared flushed and was leaning against the wall at this time and he had concerns for his judgement. The accused denied this but I accept the evidence of Officer Lindley and Waugh, that the accused had initially upon arrest told them that his wife was his lawyer and he wished to call her. However, when Officer Lindley did speak to her, it turns out she was not a lawyer. Given these factors, releasing the accused at that time in an Uber or taxi was not appropriate.
[58] The next factors from Price above, whether the accused had a record or outstanding charges weigh in the accused’s favour as he apparently does not have a record and there was no evidence of any outstanding charges at the time.
[59] The next factor was whether the accused’s vehicle was impounded. Here, given the nature of the charges, it would have been. Additionally, the accused’s driver’s licence would have been subject to an automatic 90 day suspension. This would mean the accused was a significant distance from his home without a vehicle or the ability to operate one lawfully. He necessarily would have to rely on others. Also, the Cayuga OPP Detachment is located on a busy roadway without sidewalks.
[60] The attitude of the accused that night is also a consideration. Here there is nothing to lead me to believe he was anything other than polite and cooperative. There was no evidence of bad behaviour or bad attitude that was displayed by the accused or testified to by any of the officers.
[61] The last factor to consider is that the accused had recently exhibited poor judgment. This was exhibited by the accused not only by consuming alcohol and driving that night but also in other ways. After putting his truck in the ditch, instead of realizing he shouldn't be driving, he attempted to get it out. When that failed, he called a friend hoping he would pull him out. Had he been successful, he obviously would have continued to drive. As well, he told the officers his wife was his lawyer, which was not true. The accused was not exhibiting the best judgement that night.
[62] Given all these factors the release of the accused when it occurred was appropriate. The decision by Sgt. Kurtz to release when he did, based on the advice he received and the circumstances of the case, was proper. As such, I am satisfied there was no overholding in this case and the accused’s s. 9 Charter right has not been breached in this manner as he has alleged.
Charter Issue Three – The “Mok” Issue
[63] The accused has argued that the video recording of him urinating twice in the cell amounts to an unlawful search and violated his s. 8 Charter right.
[64] In the legal vernacular, this has become to be known as a “Mok” issue, so named after the leading case in the area, R. v. Mok, 2014 ONSC 64, leave to appeal refused 2015 ONCA 608. This case explores the tension between two legally recognized interests; the expectation of privacy by a detainee in police custody and the legitimate need of the police to monitor persons under their control.
[65] The court recognized in Mok that persons still have a legitimate expectation of privacy when using toilet facilities for normal bodily functions while they are in police custody. This expectation of privacy is necessarily lessened when in police custody, but not forfeited by that fact. See Mok, paragraphs 66-82.
[66] The court in Mok held that videotaping a person in these circumstances amounts to a search. As such, since it is without a warrant the Crown must demonstrate its lawfulness. Courts have held it will be lawful if the police can find the appropriate balance between the detainee’s legitimate expectation of privacy, and the legitimate police need to monitor persons in their custody. To strike this balance, police services have adopted several methods. Privacy screens, pixilating the videos and privacy gowns or blankets provided to the detainees are some of these methods.
[67] This type of approach has been followed in several cases, subsequent to Mok, including, R. v. Deveau, 2014 ONSC 3756, R. v. Singh, 2016 ONSC 1144, R. v. Rowan, 2018 ONCJ 777, R. v. Lacku, 2019 ONCJ 88 and R. v. Wijesuriya, 2018 ONCJ 211, R. v. Scott, 2016 ONCJ 177, R. v. Stennett, 206 ONCJ 77 as well as the decision of this court in R. v. Moondi, 2019 ONCJ 293.
[68] The accused has argued that although he was advised in a generic fashion upon entering the detachment through the sallyport that he would be under video surveillance, it was never explained specifically that the video taping would capture him using the toilet in the cells. He also denies he was ever offered or advised of the availability of any privacy gown or blanket. Had the privacy gown been explained and offered to him, he would have used it.
[69] Officer Lindley testified that during the booking procedure he made the accused aware he was under video surveillance throughout the detachment. He also testified that he offered the accused the use of a privacy gown or a blanket that he could use in the cell while using the toilet to place over himself so his private area would not be visible to the camera. He said that the accused after this explanation, declined the offer.
[70] I am urged to not accept the testimony of Officer Lindley on this point but instead prefer the testimony of the accused. The accused points out that although he checked the box on the forms generated during the lodging procedure that the privacy gown was offered, Officer Lindley could not recall the exact words he used to give the explanation and did not demonstrate how to use it. As well, it is not clear from the video shown in court if he pointed out to the accused the sign above the toilet in the cell warning of the video surveillance.
[71] Given this, the accused argues this case is most like the case of Moondi above and I should decide this case in the same fashion as that one. In that case the officer also checked the appropriate box on the lodging form. The officer then testified she explained the cells were monitored and offered a gown, but that was not until after the accused had already used the toilet the first of two times.
[72] There are significant differences between the cases. First, here I accept the evidence of Officer Lindley. As noted above, he testified honestly and directly, and I accept his evidence. He stated that upon entry to the detachment, prior to the accused using the toilet for the first time he gave an explanation of the privacy gown to the accused that included informing him that he would be under video surveillance while using the toilet in the cells. Once this explanation was made the accused declined the offer of a gown so the lack of a demonstration of its use is understandable. As well it will be recalled, the video is clear that upon being brought into the cell to use the toilet for the first time, Officer Waugh can be seen placing a blanket in the cell door for the use by the accused. This I find, is some evidence that the offer was made to the accused and he declined.
[73] As well the sign above the toilet is quite prominent and the accused admitted that he read it during his first use of the toilet. The fact he used the toilet again a second time after reading the sign, convinces further that the offer of a gown or blanket was made and he declined, as the blanket previously placed in the cell door was still there the second time and the accused again did not use it.
[74] In this case I am satisfied the proper balance between the accused’s expectation of privacy and the police need to monitor detainees was struck. The accused was advised of the fact he would be video taped, was given the ability to have his privacy interests accommodated and made an informed decision to decline the offer. In these circumstances, his s. 8 Charter right was not violated.
Charter Remedy – Section 24(1) and (2)
[75] As I have found that there were no infringements on the accused’s Charter Rights, it is not necessary to embark on any potential remedies.
Impaired – Care or Control
[76] In this case, the accused is charged with having care or control of a motor vehicle while his ability to operate it is impaired by alcohol. In a case such as this, 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. See: R. v. Stellato, 1993 CanLII 3375 (ON CA), [1993] O.J. No. 18. Slight impairment to drive relates to a reduced ability, in some measure, to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, regard for the rules of the road, and the like. See: R. v. Censoni, [2001] O.J. No. 5189 at par. 47.
[77] If the accused’s ability to operate a motor vehicle was impaired by alcohol at the time I must decide if he was in care or control of the motor vehicle. Section 258(1)(a) of the Criminal Code created a presumption that where it was proven the accused occupied the driver’s seat of a motor vehicle they are deemed to be in care or control of the motor vehicle. The accused can rebut this presumption though, by establishing on a balance of probabilities that they did not occupy the driver’s seat for the purpose of setting the vehicle in motion.
[78] In this case I am satisfied beyond a reasonable doubt the accused’s ability to operate a motor vehicle was impaired by alcohol. Officer Lindley testified upon arrival on the scene the accused had an open container of alcohol in the centre console of the truck, a strong odour of alcohol on his breath, his face was flushed, his eyes were glossy, his speech was slurred and he was swaying while on his feet. Officer Waugh testified to making similar observations of the accused. Similar observations were also made by Officer Fairley during the first breath sample. Additionally, the accused has admitted to consuming approximately 8 to 9 cans of beer earlier in the day.
[79] The cumulative effect of all this evidence has convinced me beyond a reasonable doubt that the accused ability to operate a motor vehicle was at least slightly impaired by his consumption of alcohol.
[80] The accused challenged these observations and argues the Crown failed to prove that he was impaired. In addition to the accused denying he was affected by the alcohol he consumed, he points to the video taken from his time at the station. In it he argues that evidence of slurring and unsteadiness on his feet were not observable. He also argued the accused was able to undertake other tasks like taking off his sweater without any apparent issue.
[81] That may be the case but I find does not detract from the credibility or reliability of the observations made by the officers about the accused’s state. First seeing a person live and in close proximity is materially different from observations taken from a static video camera. Some of the more subtle visual cues that would be apparent when close to a person may not be apparent on video taken by a camera some further distance away. The police were in a better position to observe the accused and make the observation, especially initially at the scene, than the stationary video cameras at the detachment.
[82] As well, the video at the detachment took place some time after the observations at the scene and signs of impairment are not necessarily static. See: R. v. Grant, 2014 ONSC 1479 at par. 53 and the Superior Court decision of Coroza J. as he was then, in Sardana v. R., 2020 ONSC 1184.
[83] The next issue is whether the accused was in care or control of the motor vehicle while impaired. I find he was.
[84] The accused testified when the police arrived, he was not in the driver’s seat of the truck but outside looking up tow companies on his phone. This conflicts with the evidence of all the other witnesses who were on scene and testified. I do not believe the accused specifically on this point due to the issues with his testimony generally which were noted earlier, and specifically on this point because it conflicts with other evidence I have considered and do accept. Both Officer Lindley and Waugh testified that upon their arrival, the accused was in the diver’s seat and exited when they arrived. He got out of the truck and that’s when Officer Lindley observed the open container of alcohol in the centre console. They also both confirmed that the accused asked them to pull him from the ditch. Both officers were in a position to make these observations, their ability to observe, remember and relay their observations were not impacted by the consumption of any drugs or alcohol, and they both were not shaken in cross examination.
[85] As well, there is the testimony of David Zimmerman, the homeowner who heard the accused’s truck crash and who watched the accused continuously from the time he heard him go into the ditch until the police arrived. He testified that the accused remained in the driver’s seat until police arrived. In fact, for some time before the arrival of the police, the accused was attempting to extricate the truck from the ditch as he saw it moving back and forth. I found Mr. Zimmerman as well to be credible and reliable. He was an independent witness who I found gave an honest account of what he heard and saw that night and I accept his evidence.
[86] Given I am satisfied the accused occupied the driver’s seat of the truck, the presumption in s. 258(1)(a) applies and the accused is deemed in care or control. I also find the accused has failed to rebut the presumption. The evidence points clearly to the fact that the accused’s intention was to do whatever he needed to do to put the truck in motion. Mr. Zimmerman observed him doing his best to get it out of the ditch, the accused admitted to calling a friend to pull him out and the first thing he did upon the arrival of the police was to ask them to pull him out. Had the police not arrived when they did, the accused would have called a tow company to pull him from the ditch and he would have continued to drive. Given this evidence, the presumption cannot be rebutted. The accused, while impaired, was in the driver’s seat of the truck with the intent to put it in motion, thereby making him in care or control of the vehicle.
[87] Based on these findings, I am satisfied beyond a reasonable doubt the accused’s ability to operate a motor vehicle was impaired at the time he was in care or control of his truck. As such a finding of guilt will be made on this charge.
Failure or Refusal to Comply with a Demand for a Breath Sample
[88] After his medical episode at the detachment, Officer Fairley attend the hospital with the Intoxilyzer to obtain a second sample from the accused. This was never achieved as according to Officer Fairley, the accused continually failed to follow his instructions or feigned attempts. Officer Fairley testified the accused would make it appear as if he was blowing into the tube but was not actually expelling any air into it. The accused also would start but then stop blowing before a sample could be obtained and at other times, he would remove his mouth from the mouthpiece. After being given several opportunities to provide a sample and being warned of the consequences of not providing one, the accused still did not provide a proper sample and was charged.
[89] The accused argued the evidence falls short of proving that any failure on his part was wilful, given the impact from the medical episode he went through that night. In support of this he filed a letter from Dr. Neil James, his family physician who saw him on March 14, 2019, just over four months after the incident.
[90] Based on the totality of the evidence, I am satisfied beyond a reasonable doubt the accused failed to provide a second sample without a reasonable excuse. I cannot accept the accused was making a real effort to provide the sample, nor am I left with a doubt on this point. As noted earlier, his testimony in chief in this regard was vague and somewhat confusing. However, in cross examination, he admitted he was unable to remember any attempt to obtain a second sample from him at the hospital. As such, I am left with no evidence directly from the accused on this point. All I have that could point to an inability to provide a proper sample is the medical episode he suffered before the second sample attempt.
[91] The letter from Dr. James I find though is of no assistance in this regard. It is less than a page in length and was based entirely on self reported information of the accused over four months after the event. Dr. James himself expressly stated in the letter it was impossible for him to diagnose what had occurred.
[92] What I am left with is that the accused had some sort of medical episode from which he recovered quickly. He was taken to the hospital, observed by a doctor and medically cleared back into the custody of the police. Officer Fairley made observations that if believed, would indicate the accused was not making a legitimate attempt to provide the sample. The appearing to blow without expelling air and taking his mouth from the mouthpiece are indications the accused did not intend to provide a proper sample.
[93] I would also note the observations in this regard were left unchallenged; the accused did not cross examine Officer Fairley on them. In the end, I find Officer Fairley testified honestly about what he observed during this second sample procedure. There is no evidence that the medical episode caused any inability to provide the sample. I find the accused was purposely trying to appear to be providing a proper sample when he was not. In doing so I find he failed to provide a proper sample without a reasonable excuse. As such a finding of guilt will be made on this charge as well.
Conclusion
[94] Based on all the foregoing, the accused’s Charter rights were not infringed during this investigation. I am also satisfied based on the reasoning above, that the Crown has proven both charges beyond a reasonable doubt. As such the accused is found guilty of both charges.
Released: May 11, 2021
Signed: Justice Robert S. Gee
[^1]: Any mentions of times from this point on will be to Eastern Standard Time, after the 1 hour roll back.