ONTARIO COURT OF JUSTICE

DATE: 2022 03 03 COURT FILE No.: Brampton 20-005371

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

GREGORY CHEVALIER

Before: Justice P.T. O’Marra

Heard on: February 28 and March 1, 2022 Reasons for Judgment released on: March 3, 2022

Counsel: R. Moir, counsel for the Crown S. Pennypacker, counsel for the defendant Gregory Chevalier

P.T. O’Marra, J. (orally)

Introduction:

[1] On May 21st, 2020, Mr. Chevalier was charged that he was operating a motor vehicle while his ability was impaired by alcohol (“Impaired Driving”) and while having a blood alcohol concentration ("BAC") in excess of the legal limit ("Over 80").

[2] Mr. Chevalier brought a Charter application to exclude the breath test results, all evidence of impairment, and all other evidence obtained after the alleged breaches of his ss. 7, 8, and 9 rights.

[3] On consent of the parties, the trial evidence for the Crown and the evidence called on the Charter application proceeded in a "blended" fashion. Two witnesses testified: Mr. Adham Yasein, who assisted Mr. Chevalier after a motor vehicle collision into a utility pole and the arresting officer, Constable Ewan. Documents related to the operation of the approved instrument and a Certificate of Qualified Technician were introduced provisionally, subject to the Charter application, as exhibits on the trial. Mr. Chevelier did not testify in the voir dire nor the trial.

[4] The trial took less than one day to complete. Submissions were made the following day. I commend both counsel for their presentation of the evidence. The evidence was straightforward.

[5] Ms. Pennypacker conceded that the Crown had proven beyond a reasonable doubt that Mr. Chevalier was impaired by alcohol. However, she did not concede that he was the driver.

[6] I must determine the following questions. (i) Did P.C. Ewan have the requisite reasonable grounds to arrest and make a formal breath demand? (ii) Has the Crown established that the breath samples were taken as soon as practicable? (iii) If the answer to questions #1 and #2 is yes, did the crown prove beyond a reasonable doubt the identity of Mr. Chevalier as the operator, or had care or control of the vehicle?

[7] I will now turn to the trial evidence.

Adham Yasein’s Testimony:

[8] At approximately 2:30 a.m. on May 21, 2020, Mr. Adham Yasein was driving westbound on Lakeshore Road. As he approached the intersection of Lakeshore Road and Southdown Road, he observed a vehicle that had crashed into a utility pole. He parked his car east of the intersection and from approximately 50 feet he observed the following:

1. The car was angled and more of the driver’s side could be observed.
2. The front end was badly damaged.
3. Smoke was coming from the car.
4. The taillights were illuminated.
5. Mr. Chevalier was getting out of the vehicle and stumbling.
6. The front air bags were deployed.

[9] Mr. Yasein approached the vehicle to assist. Mr. Chevalier exited from the driver’s side of the vehicle. He testified that he observed Mr. Chevalier with his left leg out and his hand was on the car door or the car frame and his “butt was in the seat.” In cross-examination, he testified that Mr. Chevalier was still seated when he first observed him.

[10] He was unresponsive and hazy. He could not provide his name and only nodded when he was asked if he was injured. The only injury that Mr. Yasein observed was bleeding from his lip. He witnessed Mr. Chevalier spitting out blood.

[11] Mr. Yasein called 911 within two to three minutes after his arrival. The police arrived approximately ten minutes later.

[12] He took Mr. Chevalier to a location near his own vehicle on the north side of the intersection, near the cross walk. Mr. Chevalier sat down and slumped over. He was conscious. He tried to get up to walk but Mr. Yasein told him to stay down. Mr. Yasein returned to the damaged vehicle and turned off the engine.

[13] Mr. Yasein testified that he estimated that the collision with the utility pole occurred with four or five minutes as he had passed through the same intersection when he was dropping off a friend at a nearby plaza, and the accident had not occurred.

[14] Mr. Yasein remained at the scene after police arrived until 3:30. He did not recall if an ambulance attended.

Constable Ewan’s testimony:

[15] At 2:31 a.m. Constable Ewan was in his cruiser on patrol when over his radio he received information that there was a vehicle “racing down Erin Mills Parkway” and that it had smashed into “something.”

[16] He put himself on the call since he was in the area. He conceded that given the information that he received over the radio and the time of night he had concerns that this may be a case street racing or drinking and driving.

[17] He arrived at 2:35 a.m. He observed a black Hyundai with severe damage situated on the northwest corner and a toppled utility pole and wires. The vehicle was still running, and the taillights were illuminated. Smoke was coming from the car.

[18] He saw Mr. Chevalier on his back with his knees bent, his fingers interlocked resting on his chest, and his eyes were closed. There were three pedestrians standing around him. Mr. Yasein confirmed with Constable Ewan that he did not witness the collision, but he observed Mr. Chevalier in the driver’s seat.

[19] Constable Ewan testified that he had concerns regarding Mr. Chevalier’s health given the substantial property damaged that he observed. He leaned over only few inches from Mr. Chevalier’s face to ask him his name. When asked the first time he did not respond. Constable Ewan asked him a second time and Mr. Chevalier responded “Greg.” At this point, Constable Ewan detected a “faint odour of alcohol” on his breath. At this moment Constable Ewan felt that he was now investigating a possible impaired driver.

[20] Although he did not note this fact in his notebook, he recalled that he called for an ambulance and fire to attend. He testified that was his usual practice when responding to a collision.

[21] Based on the faint odour of alcohol, the single vehicle collision, and Mr. Chevalier leaving the vehicle, Constable Ewan formed a suspicion that Mr. Chevalier may have been driving with alcohol in his body. Since he did not have an ASD in his possession, Constable Ewan made a Field Sobriety Test (FST) demand. Mr. Chevalier confirmed that he understood the demand. Constable Ewan returned to his cruiser to obtain his FST notes.

[22] Constable Ewan conducted a horizontal gaze nystagmus test with his pen. The purpose of the test is to detect involuntary eye twitching. He directed Mr. Chevalier to stand with his feet and toes together and maintain his arms to his side. Mr. Chevalier did not put his feet together and placed his hands in his pockets. On occasion he was not responsive. Constable Ewan ruled out that Mr. Chevalier was experiencing any medical problems since his pupils were tracking evenly.

[23] Constable Ewan held his pen 12 to 15 inches from Mr. Chevalier’s face just above his eye level. He observed that Mr. Chevalier’s eyes were not tracking the pen smoothly. He was looking for a smooth pursuit like a wiper gliding across a wet windshield. However, Mr. Chevalier’s eyes “skipped.”

[24] During the test Mr. Chevalier began to sway. Constable Ewan could detect a stronger odour of alcohol on Mr. Chevalier’s breath and his eyes were severely blood shot. At this point, Constable Ewan terminated the remainder of the FST as he believed that he had the grounds to arrest Mr. Chevalier for impaired operation. At 2:46 am he placed Mr. Chevalier under arrest.

[25] Mr. Chevalier was handcuffed and walked to Constable Ewan’s cruiser. While he walked, he stumbled. During the pat down search, a set of house and car keys were located on Mr. Chevalier. He lost is balance and nearly fell during the pat down search.

[26] From 2:48 to 2:53 am Constable Ewan read the right to counsel, the cautions, and the breath demand. According to Constable Ewan, this process took longer than normal due to having to ask Mr. Chevalier repeatedly if he understood the information that was provided. Mr. Chevalier did want to speak to his counsel of choice, Ms. Pennypacker.

[27] At 3:05 they left for 11 division and arrived at 3:12 a.m. Upon arrival the customary safety questions were asked during the booking process.

[28] At 3:19 Constable Ewan called Ms. Pennypacker’s office and left a voice message.

[29] At 3:20 Constable Ewan asked Mr. Chevalier if he wanted to speak to duty counsel. He declined and wanted to wait for Ms. Pennypacker to call back.

[30] At 3:25 Constable Ewan did a Google search on Ms. Pennypacker law office in an effort to contact other phone numbers. He located another number. At 3:47 he left another voice message.

[31] At 3:45 Constable Ewan provided the breath technician Constable Bowes his grounds for the arrest and demand.

[32] At 3:52 duty counsel was contacted. At 3:55 Mr. Chevalier had a private conversation with duty counsel.

[33] At 4:05 Mr. Chevalier was turned over to Constable Bowes.

[34] At 4:16, Mr. Chevalier provided his first sample of breath which registered 194 mgs of alcohol in 100 ml of blood.

[35] At 4:39, Mr. Chevalier’s second breath sample registered 199 mgs of alcohol.

[36] In cross-examination, Constable Ewan recalled that as he drove his cruiser southbound on Southdown Road towards the accident seen that he could see the taillights of the vehicle as he approached. He felt that the car was pointed in southernly direction. But he also was aware that before impact the car was reportedly travelling southbound on Erin Mills Parkway.

[37] He was not aware of the nature of the engine’s ignition. Whether it was push button or required a key. He also did not recall if the air bags had deployed.

[38] Constable Ewan was concerned about any injuries that Mr. Chevalier may have sustained, but he was satisfied that he was not injured as did not see any trauma nor blood beyond some blood in his mouth. He asked Mr. Chevalier if he was injured. Furthermore, Mr. Chevalier had the ability to stand during his interaction with Constable Ewan.

[39] Constable Ewan testified that his observations of Mr. Chevalier’s bloodshot eyes, strong odor of alcohol, the single car collision, the poor performance during the FST and the swaying formed his opinion to arrest Mr. Chevalier.

The Position of the Parties:

[40] Ms. Pennypacker on behalf her client, conceded that Constable Ewan’s had subjective grounds to arrest; however, they were not objectively reasonable. Her second argument advanced was that the breath samples were not taken as soon as practicable, and the first sample was not taken within two hours after Mr. Chevalier (if I find he was the driver) ceased operation of the vehicle. Finally, the Crown has not proven that Mr. Chevalier was the driver.

[41] The Crown argued that a single car collision into a utility pole and the odour of alcohol, was objective evidence and reasonably held to constitute grounds for the arrest. The Crown submitted that based on Mr. Yasein’s evidence that the time of the collision was 2:17 or 2:18 am. However, even if the first sample was taken beyond the two-hour limit, section 328.31(4) of the Code permits the court to read back the breath readings. Finally, the Crown argues that Mr. Yasein’s evidence is compelling to establish that Mr. Chevalier was seated in the driver’s seat while he was getting out. The Crown also relies on the presumption of operation as set out in section 320.35 of the Code.

[42] I will know turn to the issues at the trial.

The Issues at Trial:

Did Constable Ewan have reasonable and probable grounds to believe that Mr. Chevalier's ability to drive a motor vehicle was impaired at the time of his arrest and the demand for a breath sample?

[43] The onus is on the Crown to prove a warrantless seizure of breath is reasonable. See: R. v. Haas (2005), 200 C.C.C. (3d) 81 (Ont. C.A.), para. 38.

[44] Unlawfully taking a breath sample from a person constitutes a violation of a person's right to be free from unreasonable search and seizure under s. 8 of the Charter. Therefore, the requirement for an officer to have reasonable and probable grounds to make a breath demand is both a statutory and constitutional requirement: R. v. Bernshaw, at para. 51.

[45] Pursuant to section 320.28 of the Code a peace officer must have "reasonable grounds to believe that the person has operated a conveyance while the person’s ability to operate it was impaired to any degree by alcohol.”

[46] Reasonable and probable grounds is not proof beyond a reasonable doubt nor is it at the other end of the spectrum evidence of a prima facie case. See R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 (CA).

[47] Mr. Justice Durno writing for the panel stated at paragraph 38 the following: Reasonable and probable grounds have both a subjective and an objective component. The subjective component requires the officer to have an honest belief the suspect committed the offence: R. v. Bernshaw, [1995] 1 S.C.R. 254 at para. 51. The officer's belief must be supported by objective facts: R. v. Berlinski, [2001] O.J. No. 377 (C.A.) at para. 3. The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest: R. v. Storrey, [1990] 1 S.C.R. 241 at p. 250.

[48] The Court of Appeal has made it clear that the standard for reasonable and probable grounds in the context of a breath demand is not an onerous test: See Bush, at para. 46.

[49] Evidence of the consumption alcohol alone is not enough to give rise to reasonable grounds for a breath demand. Something more is required. However, minor signs of impairment can be sufficient. The courts have found that any degree of impairment, from slight to great, is sufficient to establish impaired operation: R. v. Stellato, 12 OR (3d) 90 and R. v. Kranz, (2021) OJ No 11, para. 21.

[50] The determination of whether reasonable and probable grounds exist is a fact-based exercise depending upon all the circumstances of the case. The totality of the circumstances must be considered. That an accident occurred is but one factor that must be taken into account, along with all the other factors considered by the officer in forming their reasonable and probable grounds: Bush at para. 54; R v Rajagopal, 2008 ONCJ 106, [2008] O.J. No 989, at para. 35 and Kranz, at para. 22.

[51] In reviewing reasonable and probable grounds, judges must also consider the context within which the officers operate, and in particular, their need to make quick decisions. In this context, the test for reasonable and probable grounds is not onerous.: R. v. Censoni, [2001] O.J. No. 5189 (S.C.J.), at para. 43. Officers are not required to make a prima facie case for conviction before a breath demand can be given. Shephard, at para 23; R v Bush, 2010 ONCA 554, at para 37., R. v Anand, 2015 ONCJ 375, at para. 14 and Kranz, at para. 23.

[52] The law requires that the officer consider the indicia of impairment collectively, and not individually: Rajagopal, at para. 31 and Kranz, at para. 25.

[53] Furthermore, the fact that there are other possible explanations for particular indicia of impairment does not necessarily take away from the existence of reasonable grounds: Rajagopal, at para. 34; R. v. Littler, at para. 18; Shepherd, at para. 23, and Kranz, at para. 24.

[54] In this case, no issue was taken with Constable Ewan’s reasonable grounds to suspect that Mr. Chevalier had alcohol in his body and his implementation of the FST within the preceding three hours that theoretically Mr. Chevalier had operated a vehicle.

[55] Constable Ewan observed the aftermath of an unexplained violent single vehicle collision that involved Mr. Chevalier. There was considerable property damage. At a minimum Constable Ewan smelled an odour of alcohol on Mr. Chevalier's breath. Whether the odour was strong or not, at this stage of the analysis was not as germane to this issue. This was an accident that occurred at approximately 2:17 a.m. In my view, those factors alone can be enough to meet the test. Evidence of consumption of alcohol and an unexplained accident may generate reasonable and probable grounds: See Bush, para. 54; R v. Zanat, [2015] O.J. No. 5073 (SCJ), paras. 16-18; and R. v. Mould, [1999] O.J. No. 5201 (SCJ), para. 23.

[56] Constable Ewan’s grounds were augmented by Mr. Chevalier’s poor performance on the FST. He also noted Mr. Chevalier’s bloodshot eyes, a stronger smell of alcohol, his swaying, his lack of coordination and cooperation.

[57] Although Mr. Chevalier was involved in serious collision, he did not have any obvious trauma aside some blood in or around his mouth. Perhaps some of the symptoms could have been caused by the trauma of the accident, a reasonable person could objectively conclude that the symptoms were as a result of being impaired even without the benefit of a roadside or field sobriety test. See: R. v. Pangowish, para. 25 and R. v. Duris, 2009 ONCA 740, [2009] O.J. No. 4403 (CA), para. 2.

[58] I have considered all observations and facts before Constable Ewan, in my view there was enough indicia of impairment when viewed objectively to support Constable Ewan's subjective belief that Mr. Chevalier had committed the offence of impaired operation of a vehicle that warranted the breath demand. The Charter application is dismissed.

Were the approved tests taken as soon as practicable?

[59] Whether the samples were obtained as soon as practicable is a question of fact.

• SEE: R. v. Vanderbruggen (2006), 206 C.C.C. (3d) 489 (Ont. C.A.), para. 14

[60] As soon as practicable means the samples were obtained within a reasonably prompt time under the circumstances.

• R. v. Vanderbruggen (2006), 206 C.C.C. (3d) 489 (Ont. C.A.), paras. 12 to 16
• R. v. Phillips (1988), 42 C.C.C. (3d) 150 (Ont. C.A.), p. 155 to 156
• R. v. Letford (2000), 150 C.C.C. (3d) 225 (Ont. C.A.), para. 17

[61] As soon as practicable is assessed by looking at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the first test. “The “as soon as practicable” requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that—in all the circumstances—the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody.”

• R. v. Vanderbruggen (2006), 206 C.C.C. (3d) 489 (Ont. C.A.), para. 13

[62] Some courts have held that the s. 320.28 demand section imposes not only an obligation on the officer to make a timely demand and the accused to comply with a timely response, but the section also implies a further requirement that the Crown must prove the approved tests were taken “as soon as practicable” to constitute a lawful search, as was required under the prior s. 258 regime. R. v. Tripp, [2021] O.J. No. 1316, at para. 96, 2021 ONCJ 153, R. v. Callfas, [2021] A.J. No. 280, at paras. 22-26, 2021 ABPC 71, R. v. Boukhari, [2021] J.Q. No. 2586, at para. 73, 2021 QCCM 27.

[63] Constable Ewan arrived on scene at 2:35 and left the scene at 3:05 to attend 11 division with Mr. Chevalier for breath testing. During that 30-minute period Constable Ewan did the following:

1. Assessed the accident scene.
2. Located Mr. Chevalier and was advised that he was the driver.
3. At 2:39 am he assessed Mr. Chevalier’s sobriety by conducting the FST after a proper demand under section 328.28 which consisted of the Horizontal Gaze Nystagmus test.
4. At 2:46 am he formed reasonable grounds to arrest Mr. Chevalier.
5. From 2:46 to 2:53 he provided the right to counsel, the cautions and breath demand. This took a slightly longer than normal as Constable Ewan had to repeat his questions to Mr. Chevalier.
6. The period from 2:53 until his departure at 3:05 was used to arrange tow and seizure of the vehicle. Constable Bertrand had arrived on scene.

[64] After they arrived at 11 division at 3:12, Constable Ewan asked safety questions during the booking.

[65] Constable Ewan called private counsel at 3:19. He offered duty counsel immediately afterward which was declined. I find that waiting for a call back from counsel was proper and prudent. Approximately 28 minutes later he placed a second call to private counsel. in my view, this delay in fulfilling Mr. Chevalier’s right to counsel of choice was appropriate. See: R v Wijesuriya 2020 ONSC 253, paras. 87-91. It may have delayed the testing procedure; however, that should not negatively impact the Crown’s case in this matter. Fairly there was no argument from counsel that duty counsel was foisted onto Mr. Chevalier and therefore caused a section 10(b) violation.

[66] I agree with Crown’s characterization that Constable Ewan exercised and acted with ‘over care’ in fulfilling the right to counsel on behalf of Mr. Chevalier.

[67] I accept the first sample was close to the end and perhaps a minute or two minutes beyond the two-hour window, however, that can be remedied by the Crown’s reliance on section 320.31(4) of the Code.

[68] Under the new regime, the Crown is no longer required to prove a driver's blood alcohol level at the time of driving. What the Crown must now prove is that the driver's blood alcohol level is equal to or over .08 within two hours of driving. This change made the presumption of identity redundant.

[69] The Crown can rely on section 320.31(4) if the first sample was taken more than two hours after the person has ceased to operate the vehicle. In order to rely upon this section, the time of driving has to be established. In the case here, the first sample was taken at 4:16 am. The call for service due to the 911 call from Mr. Yasein was at 2:28 am. From Mr. Yasein’s evidence he arrived at 2:23 a.m. but had driven by 4 or 5 minutes before through the same intersection and there was no observable accident. That would mean theoretically the collision occurred around 2:17 or 2:18. These calculations are based on estimations which may be inaccurate and subject to human frailties and unreliable time pieces.

[70] I have concluded based on the evidence that the accident or the cessation of the operation of the vehicle, I cannot be certain that the collision occurred within the two-hour limit. However, I am satisfied that the collision occurred just before or at approximately 2:17 give or take a minute or two on either side.

[71] Thus, the Crown can rely on the provision in section 320.31(4) which provides that where samples of breath or blood are taken more than two hours after the person ceased operating the conveyance, and the person's BAC was [greater than or equal to] 20mgs, the persons BAC is conclusively presumed to be that BAC plus an additional 5mg of alcohol per 100ml of blood for every interval of 30 minutes in excess of the two hours.

[72] Now turning to the issue of whether the Crown has established proof beyond a reasonable doubt that Mr. Chevalier was the driver.

Has the Crown proven beyond a reasonable doubt that Mr. Chevalier was the driver?

[73] In this case, there was no direct witness that the Crown called to testify that Mr. Chevalier was the driver of the vehicle that crashed into the utility pole. However, Mr. Yasein was a very credible witness. He did not see anyone else around the car. He testified that Mr. Chevalier was exiting from the driver side door as the vehicle’s engine was running and the vehicle was smoking. In my view, it is the only reasonable inference that Mr. Chevalier was the driver.

[74] Ms. Pennypacker asserted that the orientation of the vehicle according to Mr. Yasein and Constable Ewan’s evidence cannot be reconciled. Quite frankly there was not much difference in their evidence. Mr. Yasein stated that when he looked westward, he could see more of the driver’s side of the damaged car and that the car was angled. which can indicate that the car was pointed in a southerly direction. Constable Ewan testified that the car was facing south as he could see the taillights as he approached from south bound on Southdown Road.

[75] Ms. Pennypacker argued that since the car keys were located on Mr. Chevalier during the pat down search that was not indicative of possession as there was no evidence that was lead whether the car had a push button ignition or not. Furthermore, Constable Ewan testified the engine was still running when he arrived. However, I do not think very much turned on the location of the keys as Mr. Yasein testified that he turned off the engine after he assisted Mr. Chevalier from the car. Constable Ewan may have been wrong about the engine being on but that does not detract from the identity evidence that Mr. Yasein provided. The location of car keys was not dispositive of the issue. Therefore, I am satisfied that the Crown has proven beyond a reasonable doubt that he was the driver.

[76] If I am incorrect in my analysis that the Crown has proven beyond a reasonable doubt that Mr. Ewan was the driver, in the alternative, I am satisfied beyond a reasonable doubt that he was in care or control of the vehicle based on the observations that Mr. Yasein witnessed Mr. Chevalier’s “butt” was on the driver's seat as he tried to extricate himself from the severely damaged vehicle. Thus, I find that the presumption of operation is engaged.

[77] Section 320.35, sets out the presumption of operation as follows, In proceedings in respect of an offence under section 320.14 or 320.15, if it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a conveyance, the accused is presumed to have been operating the conveyance unless they establish that they did not occupy that seat or position for the purpose of setting the conveyance in motion.

[78] The presumption is engaged when the accused first occupies the driver's seat, not when the police arrive later. The mens rea and actus reus of the offence are complete at that time. The purpose of the legislation is to discourage intoxicated persons from even occupying the driver's seat. See: R. v. Szymanski, [2009] O.J. No. 3623, at paras. 35-42 (S.C.J.).

[79] I find that Mr. Chevelier has not rebutted the presumption.

Conclusion:

[80] In conclusion, Mr. Chevalier is guilty of count one and count two.

Released Orally: March 3, 2022 Signed: Justice P.T. O’Marra