Ontario Court of Justice

Date: January 13, 2022 Court File No.: Brampton 3111 998 21 2351

Between:

HER MAJESTY THE QUEEN

— AND —

ZACHARY MONTGOMERY

Before: Justice G.P. Renwick

Heard on: 10, 11, 12 January 2022 Reasons for Judgment released on: 13 January 2022

Counsel: I. Osowski, for the Crown V. Strugurescu, for the defendant Zachary Montgomery

RENWICK J.:

Introduction

[1] The Defendant is charged with operating a conveyance while impaired by alcohol or a drug, or both, and driving dangerously. At the start of the trial, a count of possessing stolen property and a provincial driving offence were withdrawn.

[2] The Defendant brought an Application to stay his charges on the basis of an alleged violation of ss. 7 and 12 of the Charter. The Defendant submits that during his arrest, the Defendant was subjected to excessive force during his apprehension and arrest. If this is not the “clearest of cases,” the Defendant seeks to exclude two pieces of evidence: an inculpatory statement and the results of his blood analysis, in lieu of a stay of proceedings.

[3] The parties agreed that the Charter Application would travel in the vehicle of trial evidence along the path of a “blended” voir dire. A voluntariness application also rode along. In an earlier ruling, I determined that the Defendant’s statement, “I will be coming down from fentanyl in a bit,” made before he was taken into custody, was voluntary and admissible as evidence in this trial.

[4] During the trial, the Defendant conceded that the dangerous driving count was proven beyond a reasonable doubt and invited the court to find him guilty of this offence.

Governing Legal Principles

[5] The onus during a criminal trial begins and ends with the prosecution to prove the guilt of a defendant beyond a reasonable doubt. Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the whole of the trial, unless and until the court is satisfied that the charge has been proven, by admissible evidence, beyond a reasonable doubt. The prosecution’s burden of proof never shifts during the trial. Proof beyond a reasonable doubt is a high threshold.

[6] A reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and it logically derives from the evidence or the lack of evidence adduced during the trial. While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is inapplicable and unrealistic. The Supreme Court of Canada has cautioned that there is no mathematical precision to proof beyond a reasonable doubt but it lies much closer to absolute certainty than to proof on a balance of probabilities. [1]

[7] If after considering all of the admissible evidence I am sure that the Defendant committed an alleged offence I must convict him since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt. Likewise, if I am not sure, then I have a reasonable doubt and an acquittal must follow.

[8] This case involves various witnesses and credibility assessments. In assessing witness credibility and reliability I have taken into account the general capacity of the witness to make their observations, to remember what they perceived, and their ability to accurately testify to their recollections. It is also important to determine whether the witness was trying to tell the truth and whether or not the witness was sincere, candid, biased, reticent, and/or evasive.

[9] A trier of fact is entitled to accept some, none, or all of what a witness says while testifying. I have reminded myself to treat the evidence of all witnesses the same. Specifically, I am not to determine the value of a particular witness’ testimony because of her station in life or her role in the proceedings. That would be unfair and it would completely undermine the presumption of innocence and the duty of the court to act impartially.

[10] A valuable means of assessing the credibility of any witness is to examine the consistency between what the witness said while testifying and what the witness has said or written on other occasions. I must also assess what is testified to in the context of all of the evidence in the case and not on an isolated basis. This is true for any inconsistencies and whether these are inconsequential or significant to the case. If the inconsistency is significant, then I must pay careful attention to it when assessing the reliability of the witness' testimony.

[11] In this case there is circumstantial evidence. The evidence of impaired operation, for example, is circumstantial. As with all matters to be proven by circumstantial evidence, in order to be satisfied beyond a reasonable doubt that the Defendant’s ability to drive a motor vehicle was impaired by a drug, I must be satisfied that it is the only reasonable inference available on the evidence. [2] In assessing the case, I must consider the evidence cumulatively and as a whole. Given that each circumstantial piece of evidence may be insufficient on its own to support the required inference, I must consider all of the individual pieces of evidence together to determine whether the prosecution has met its high burden.

[12] Also, because the prosecutor seeks to adduce evidence obtained from a warrantless search (the blood analysis results), I must be satisfied on a balance of probabilities that the search was authorized by law, the law is reasonable, and the search was conducted reasonably: R. v. Collins, [1987] 1 S.C.R. 265 at para. 23.

[13] Here, the prosecutor relied upon the statutory regime for the collection of a blood sample during a drug-driving investigation, subs. 320.28(2)(b) of the Criminal Code. The Defendant raised no issue with any of the prerequisites or the constitutionality of this sub-section of the Code, nor was any concern expressed that this law is unreasonable or the seizure of the Defendant’s blood was unreasonable in the circumstances.

[14] Section 7 of the Charter protects “the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Section 12 says, “Everyone has the right not to be subjected to cruel and unusual treatment or punishment.” These are foundational rights that protect us from indiscriminate and excessive treatment or punishment at the hands of the state. These constitutional norms also protect Canadian residents from oppressive police conduct or on-going unfairness during a prosecution.

[15] Section 25 of the Criminal Code governs the police use of force during an arrest. The relevant provisions of s. 25 read:

Protection of persons acting under authority

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law (a) as a private person, (b) as a peace officer or public officer, (c) in aid of a peace officer or public officer, or (d) by virtue of his office, is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

When not protected

(3) Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservation of any one under that person’s protection from death or grievous bodily harm.

When protected

(4) A peace officer, and every person lawfully assisting the peace officer, is justified in using force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested, if (a) the peace officer is proceeding lawfully to arrest, with or without warrant, the person to be arrested; (b) the offence for which the person is to be arrested is one for which that person may be arrested without warrant; (c) the person to be arrested takes flight to avoid arrest; (d) the peace officer or other person using the force believes on reasonable grounds that the force is necessary for the purpose of protecting the peace officer, the person lawfully assisting the peace officer or any other person from imminent or future death or grievous bodily harm; and (e) the flight cannot be prevented by reasonable means in a less violent manner.

[16] Police officers are authorized to use such force as may be necessary to make an arrest. [3] As well, it stands to reason that police are equally entitled to use force to prevent a suspect they seek to arrest from fleeing. However, the authority to use force is not without constraint:

In the passage from Therens quoted earlier, Le Dain J. made the point that the assessment of the seriousness of a constitutional violation must take into account the reasons for the conduct. He gave the example of a situation of urgency, where rapid action is necessary to prevent the loss or destruction of evidence. To this I would add another factor that can be considered, whether the circumstances of the case show a real threat of violent behaviour, whether directed at the police or third parties. Obviously, the police will use a different approach when the suspect is known to be armed and dangerous than they will in arresting someone for outstanding traffic tickets. The consideration of the possibility of violence must, however, be carefully limited. It should not amount to a carte blanche for the police to ignore completely all restrictions on police behaviour. The greater the departure from the standards of behaviour required by the common law and the Charter, the heavier the onus on the police to show why they thought it necessary to use force in the process of an arrest or a search. The evidence to justify such behaviour must be apparent in the record, and must have been available to the police at the time they chose their course of conduct. The Crown cannot rely on ex post facto justifications. [4]

[17] The Ontario Court of Appeal has recently affirmed that although the burden lies on an applicant to demonstrate that a Charter remedy should be granted:

…once an accused shows that the police used deadly force, a prima facie breach of s. 7 exists, and the evidentiary burden shifts to the Crown to prove the force used was justified. This requires a subjective-objective analysis. The court has to be satisfied that the police officer subjectively believed that the use of force was necessary in the circumstances to protect the officer or others from death or grievous bodily harm, and the belief must have been objectively reasonable: Davis, at paras. 76-78. [5]

[18] In the next part, I will outline some of the evidence taken during this trial and the findings I have reached. I do not propose to reiterate all of the evidence taken. It is sufficient to note that during and subsequent to the trial I have taken several opportunities to review the evidence from my notes and the digital recording of the proceedings. As well, I had come to no conclusions on the evidence until all of the submissions were received and the law was considered.

The Evidence and Findings

[19] Six witnesses testified during this trial: Constables Karanveer Singh, Ryan Barnhart, Donald Malott, Murray Wood, Livern Webley, and forensic toxicologist Rachelle Wallage. On consent, Ms. Wallage was qualified to give opinion evidence respecting the pharmacological and toxicological effects of drugs, alcohol, and poisons on the human body and the absorption, distribution, and elimination of drugs, alcohol, and poisons on the human body. Beyond the witnesses called by the prosecutor at large, the Defendant led no additional evidence on the Charter Application or the trial.

Constable Karanveer Singh

[20] During his examination in chief, Cst. Singh testified that he was given information over his police radio of a vehicle that was reported stolen, that had fled from police earlier in the day. The description of the vehicle included the make, the colour, and the Quebec licence plate number. Within three minutes, at 10:55 p.m., Cst. Singh saw the stolen vehicle and began to follow it. Constable Singh testified that initially he did not illuminate his emergency lights to attempt to stop the vehicle, as he awaited the arrival of another police vehicle in the area to assist.

[21] Eventually, with the assistance of an unmarked police sport utility vehicle, Cst. Singh moved his police car in front of the stolen Infinity vehicle and together the police boxed-in the Defendant and forced his car to stop.

[22] Constable Singh testified in cross-examination that within one minute of stopping the Infinity, he had approached the driver, demanded him to exit the vehicle, he heard the sound of the vehicle engine revving, he feared that the vehicle would maneuver away from the police vehicles, he was aware that there were two occupants in the Infinity, he smashed the window of the Infinity to get a better look at the driver and to prevent the driver from fleeing, at this point he could see that the driver looked confused and he had small pupils, which alerted Cst. Singh that the driver may be intoxicated by something, and given the driver’s failure to show his hands or to exit the car, he decided to taser the Defendant to prevent any further attempt to escape or endanger any officer or member of the public.

[23] When asked by the prosecutor what his intention was as he approached the Infinity, Cst. Singh testified, “to apprehend him safely without causing harm to me, the public, or [the Defendant].”

[24] The officer re-iterated several times in his evidence that he made the decision to taser the Defendant as a means to prevent his flight from police only after the Defendant refused to show his hands and obey the police commands to leave the car, all while the engine of the Infinity continued to rev.

[25] I believe Cst. Singh’s testimony that he truly feared that the Defendant would continue to try to evade arrest and if he did so, others, including Cst. Singh, other police officers, and members of the public in the area, including the female passenger, would be at a significant risk of bodily harm.

[26] Given the information that Cst. Singh had (a stolen vehicle had fled earlier from the police, the same vehicle had tried to flee from Cst. Singh, it had driven into oncoming traffic at approximately 85 kms/hr, the vehicle continued at a high speed when the driver appeared to have become aware of Cst. Singh’s presence, the vehicle had poor traction as it was driving on a rim with sparks flying, the fact that nothing short of boxing in the car had worked to stop it, the driver refused to come out of the car despite police commands after he was forcibly stopped, the driver refused to show his hands, and the driver continued to ignore the police rather than leave his car, even after Cst. Singh had smashed the driver’s window), I am satisfied that Cst. Singh’s fears were not unfounded. Rather, in all the circumstances, I find that Cst. Singh’s fears that the Defendant was attempting to continue his flight from police were genuine and reasonable.

[27] I believed Cst. Singh during his evidence. When asked in submissions whether the Defendant took issue with the credibility of the officer’s stated fears, the Defendant did not suggest that the officer was untruthful, but the Defendant took issue with the reasonableness of the police perception and behaviour.

[28] In terms of reliability, Cst. Singh was not a perfect historian. There were issues with his memorialisation of the events he recounted. His notes were not an exemplar of comprehensive exactitude.

[29] However, the Defendant also conceded, on the basis of Cst. Barnhart’s testimony, that Cst. Singh’s omission in his notes respecting the revving of the engine was not dispositive. There was no doubt that this actually occurred. The Defendant accepts that Cst. Barnhart had to manually turn off the vehicle to prevent the engine from red-lining. The Defendant did not suggest that Cst. Singh could not have heard the engine sound. In the end, I accept the officer’s evidence that he simply omitted to note the engine revving although he had made the observation and it concerned him greatly at the time. The manner of accepting his error and Cst. Singh’s candour while testifying satisfy me that he was not misleading the court during his testimony.

[30] I have also noted the balance with which Cst. Singh testified. He readily admitted that it was less than one minute from the time he approached the Defendant’s car until he attempted to taser the Defendant. Cst. Singh was also candid that after he unsuccessfully attempted to use the taser upon the driver, the Defendant voluntarily came out of his car and immediately went to the ground without police prompting or assistance.

[31] I find that Cst. Singh was a careful witness. He was careful not to overstate his observations, he listened carefully to the questions he was asked, [6] and he agreed with his cross-examiner when it was appropriate to do so. His testimony was also consistent throughout the examination in chief and cross examination.

[32] In summary, I accept Cst. Singh’s testimony as truthful and accurate. There were no internal inconsistencies, it was not contradicted by other evidence, [7] Cst. Singh appeared earnest and conscientious, [8] and the content of his testimony was plausible at all times.

Constable Ryan Barnhart

[33] I will repeat the findings I expressed respecting this testimony during the voluntariness ruling.

[34] Cst. Barnhart’s testimony was more detailed than Cst. Singh’s with respect to how it was that the Defendant came to be stopped by police. Constable Barnhart had no dealings with the Defendant and very little observations of the Defendant. He testified credibly, consistently, and apparently accurately. Constable Barnhart was balanced: for example, he testified that although the Infinity was revving after it was stopped, he could not see the Defendant’s foot and could not say whether the Defendant was pressing the car’s accelerator. As well, he agreed that it would be difficult for the Infinity to escape from the police vehicles given its poor traction on one wheel.

[35] I heard no evidence that directly contradicted Cst. Barnhart’s testimony and it aligned in several respects with Cst. Singh’s evidence (for example, the unsafe manner of the Defendant’s driving, the plan and conduct of the tandem stop, the condition of one of the Defendant’s wheels, the driver’s appearance, and the female passenger held what appeared to be a pipe). The Defendant expressed no concerns that Cst. Barnhart was anything less than truthful and accurate in his evidence.

[36] I have reminded myself that portions of Cst. Barnhart’s testimony were unique. He was aware of information and made observations that were not learned or made by Cst. Singh:

i. The Infinity vehicle had significant front end damage; ii. Cst. Barnhart believed it was not safe to operate the Infinity in its condition; iii. The Infinity had earlier been investigated as an impaired driving call; iv. The Infinity had rammed 12 Division police cruisers; and v. The Infinity tried to swerve into Cst. Singh’s cruiser as he was passing the vehicle to conduct the tandem stop.

[37] Nonetheless, and in light of the lack of any significant challenge to Cst. Barnhart’s evidence, I accept this officer’s testimony as credible and reliable.

Constable Donald Malott

[38] This officer attended at the hospital to see if he could assist. He acknowledged that he is not qualified as a Drug Recognition Expert, however, he made observations of the Defendant which were not challenged. Essentially, this witness testified that the Defendant continually dosed off at various points and he was alert at other points. The officer did not believe that fatigue accounted for the Defendant’s behaviour because regardless of the early hour (around 1:30 a.m.), he found it unusual that someone could not wake up and “maintain a conversation.” The officer gave the example that the Defendant began to give his name and then he trailed off and “he was nodding off.” It was Cst. Malott’s evidence that what he saw was 100% indicative of drug use rather than fatigue.

[39] I have some reservations accepting this testimony. The officer did not provide any basis for his conclusion. I know not his level of experience with people and drug consumption. In the end, I give this officer’s lay opinion evidence that the Defendant was suffering the effects of drug use no weight because:

i. There is no evidence that Cst. Malott has any training to determine the effects of various drugs upon humans; ii. There is no evidence what experiences Cst. Malott has with recognizing the effects of drug use; iii. There is no evidence what drug(s) Cst. Malott believed could account for the Defendant’s presentation; and iv. There was a level of imprecision to the number of times Cst. Malott tried to interact with the Defendant, the period of time over which they interacted, and whether anyone was interacting with the Defendant or he was simply sitting for approximately 90 minutes, after midnight, before Cst. Malott’s observations began. [9]

[40] That said, I accept as fact the unchallenged evidence that the Defendant appeared to be sleepy and he fell asleep, at least once, while actually speaking with Cst. Malott.

[41] The Defendant took no issue with the blood demand made by Cst. Malott or the seizure of his blood by the nurse, or the eventual transport of the Defendant’s blood samples by this officer to the Centre of Forensic Sciences. All of these matters are accepted by me as proven.

Constable Murray Wood

[42] This witness had limited observations of the Defendant at the hospital. Although he is qualified as a Drug Recognition Expert, because Cst. Malott was already dealing with the Defendant, this officer decided not to get involved. He did not speak with the Defendant, nor did he make efforts to determine if the Defendant could complete a drug evaluation, or whether there was a suitable room in the hospital for that purpose.

[43] This witness observed that the Defendant “didn’t appear to be fully lucid or awake.” Again, without any attempts to quantify the precision of this observation, this evidence has limited weight and plays no significant part in the analysis.

Constable Livern Webley

[44] By far, this rookie officer was the most impressive police witness. Constable Webley had a keen memory (most of his evidence was delivered without reference to his notes), ample, helpful notes, precision respecting his actions and observations, and the apparent neutrality and deportment of a professional police witness.

[45] Constable Webley testified several times that he observed the Defendant swaying when walking, the Defendant was initially resistant to go into the police cruiser, but eventually he complied, and then he was in and out of sleep, within minutes of his arrest, as he sat in the police cruiser. Also, he had observed that the Defendant was belligerent with the paramedics, by refusing to answer some of their questions. Constable Webley clarified that he had observed the Defendant swaying while walking to the police cruiser, and then again, when the Defendant walked to the ambulance. In terms of indicators of impairment, he testified that the Defendant was “sleepy,” “swaying while walking,” “his pupils were small,” and “his face was pale.” These observations were detailed, unembellished, and remained unchallenged by other evidence or cross-examination.

[46] The cross examination of this officer was essentially exploratory. The Defendant raised one issue with respect to some hearsay the officer had received from his coach officer, Cst. Delgado. Constable Webley had been told that the Defendant had made an utterance to police when he was “pulled out” of his car.

[47] I have no evidence with respect to the genesis of the characterization that the Defendant was “pulled out” of the Infinity vehicle. I do not know if that was something Cst. Singh actually said or something Cst. Delgado inferred when he repeated that hearsay statement to Cst. Webley. Though Cst. Singh was cross examined about how the Defendant alighted from his vehicle and whether police had pulled him out, the attribution of this apparent characterization was never put to him. Accordingly, I give this inadmissible hearsay no weight.

[48] In summary, the testimony of Cst. Webley’s observations was balanced, [10] plausible, consistent, well-documented, uncontradicted, and left largely unchallenged. For these reasons, I accept this evidence as entirely accurate and reliable.

Forensic Toxicologist Rachelle Wallage

[49] With the consent of the Defendant, there was no voir dire to determine the admissibility of opinion evidence from a forensic toxicologist. The Defendant conceded that Ms. Wallage could be qualified to give opinion evidence respecting the pharmacological and toxicological effects of drugs on humans.

[50] After hearing some evidence on the point and in light of the lack of submissions on the issue, I concluded that it would be appropriate to qualify the proposed expert to provide opinion evidence in this case.

[51] During the presentation of this evidence, I had many questions for the witness in order to clarify the limitations of Ms. Wallage’s opinions. The opinion evidence was helpful to understand the process of blood analysis and what concentrations of drugs in blood can (or cannot) indicate. The evidence was helpful to know the general pharmacological effects of various drugs/substances on humans.

[52] Ms. Wallage testified that she performed various analyses on one of the containers of the Defendant’s blood she received. Her tests either screen for drugs and substances or determine the concentrations of the drug/substances in the blood. After the analyses, she reviewed the results and summarized her findings in a report.

[53] In the end, the blood analysis evidence established the following:

i. The blood taken by a nurse from the Defendant was analyzed by forensic toxicologist Rachelle Wallage, at the Centre of Forensic Sciences; [11] ii. Fentanyl, a schedule I substance within the Controlled Drugs and Substances Act (S.C. 1996, c. 19), was present in the Defendant’s blood in a concentration of 18 nanograms/millilitres of blood (“18 ng/mL”); iii. In the field of forensic toxicology, it is accepted that Fentanyl is a “stable” drug: i.e., the concentration of fentanyl in blood does not change or degrade after blood sampling, before analysis; a particular concentration found in blood reflects the concentration of that drug in the blood at the time of sampling; iv. Etizolam, an unregulated substance that is not lawful for therapeutic use in Canada, was present in the Defendant’s blood in a concentration of 17 ng/mL; v. While there are some studies indicating that etizolam is a relatively stable drug (its concentration in blood does not degrade from the sampling until its analysis), these are preliminary and the toxicologist could not say conclusively that the concentration of etizolam in blood does not deteriorate in the interim between collection and analysis; vi. There were traces or metabolic markers of other drugs or substances in the Defendant’s blood, but due to their limited concentrations and several variables about which there was no information, not much can be concluded about the negligible presence of these other substances. [12]

[54] The expert testimony made it clear there were limitations to its extrapolation:

i. Little, if anything, could be said about the effects of different drugs upon the Defendant despite their presence in his blood; ii. The forensic toxicologist could not offer an opinion on the Defendant’s level of impairment in his ability to drive, if any, as a result of the drugs found in his blood; iii. The forensic toxicologist could not comment on the Defendant’s use of fentanyl – whether it was therapeutic or recreational; iv. The forensic toxicologist could not comment on the Defendant’s tolerance or prior exposure to fentanyl; v. The forensic toxicologist could not comment on the timing of the Defendant’s use of fentanyl or other substances found in his blood; vi. The forensic toxicologist could not comment on the route of administration (consumption, inhalation, injection, absorption, etc.) of the Defendant’s use of fentanyl or other substances found in his blood; and vii. The drugs found in the Defendant’s blood are not like alcohol, about which there is an abundance of scientific literature and knowledge and from which it is acceptable to draw general conclusions about vehicular operability impairment based on blood concentrations.

[55] With the limitations in mind, I draw the following conclusions from the opinion evidence:

i. The concentration of fentanyl and etizolam found in blood is administrative-route dependent; one cannot assume that the concentration of these drugs was the same at the time of driving as at the time of blood sampling (although given what is known about their stability it is likely that the concentration at the time of sampling was the same as at the time of analysis); [13] ii. Fentanyl is a central nervous system (“CNS”) depressant; it reduces pain and when used recreationally, has a euphoric effect; it slows brain function, which affects concentration and stimulus response; it reduces consciousness; it reduces pupil dilation; it has a sedative effect; passing out or sleepiness can result; a loss of respiration is also an associated effect of fentanyl; it can be toxic to individuals with no/low tolerance at blood concentrations of 3 ng/mL and higher; repeated exposure to fentanyl increases tolerance and reduces toxicity and the likelihood of death; blood concentrations of fentanyl at 18 ng/mL are generally toxic to a large majority of the population; the effects of fentanyl can take minutes or hours to develop and can last for up to three days if taken epidermally by a patch; iii. Etizolam is a recreational drug, not approved for therapeutic use in Canada; it is a CNS depressant; it can affect the reception, processing of, and response to information/stimulus; it can cause sedation and decreased levels of consciousness; it can affect muscle use and interfere with coordination; therapeutic blood concentrations can range from single digits to low 20’s (ng/mL); it can cause impairment while driving at these levels, depending on tolerance; and iv. The drugs found in the Defendant’s blood can affect risk-assessment and the ability to control a motor vehicle.

Analysis

Dangerous Operation

[56] Dangerous operation of a motor vehicle involves more than mere carelessness or a lack of consideration for other users of a highway. I must be satisfied that the Defendant’s conduct represents a marked departure from the driving of a reasonably prudent motorist in the same circumstances. I must be satisfied beyond a reasonable doubt that a reasonable driver in similar circumstances would have been aware of the risk and the danger involved in the manner of driving exhibited by the Defendant.

[57] I also remind myself that it is the manner of driving rather than the consequences that must be my focus. The consequences of the Defendant’s driving may assist me to decide whether the Defendant’s operation of his motor vehicle was a marked departure from what a reasonable, prudent driver would exhibit in the circumstances, but standing alone, the consequences do not prove that the Defendant’s driving was a marked departure from how a reasonable, prudent driver would operate his car in similar circumstances. [14]

[58] Anyone who commits that actus reus with the requisite mens rea is guilty of dangerous driving. The mens rea can be established in two ways. In some cases, the prosecution will be able to establish that the defendant deliberately drove in a dangerous manner. A driver's decision to drive in a dangerous manner within the meaning of s. 320.13(1) amounts to subjective mens rea.

[59] The mens rea can also be established by demonstrating that the defendant failed to meet the objective standard of a reasonable, prudent driver in the circumstances. In such cases, the fault element is not the marked departure from the conduct of a reasonably prudent driver, but the fact that a reasonably prudent driver in the defendant's circumstances would have been aware of the risk of that conduct and would have acted in a manner that was markedly more prudent. The mens rea may only be inferred where the impugned conduct represents a marked departure from the norm, and it is not inferred from the simple fact that the defendant operated the motor vehicle in a dangerous manner. [15]

[60] The Defendant concedes that he operated a conveyance in a manner that was a marked departure from the standard of care owed by a reasonably prudent driver in the circumstances. No issue was taken with respect to either the mens rea or the actus reus.

[61] The Defendant’s concession is a reasonable one. The evidence clearly established a significant, dangerous marked departure from the manner of driving expected of a reasonably prudent driver. The Defendant deliberately drove for a significant period of time to evade apprehension by the police with a badly damaged motor vehicle, missing one tire, in a manner that put other users of the highway at significant risk. This was evidenced by driving into oncoming lanes to pass vehicles to evade the police and the active attempt to maneuver his vehicle to prevent a marked police car from passing him during his apprehension. Either of these activities in addition to driving a vehicle with poor traction (due to the missing tire), could have resulted in calamitous results. It is simply by good fortune that the Defendant did not collide with any other vehicle or property that night.

[62] I am satisfied that both the mental and physical elements of the offence of dangerous operation are proven beyond a reasonable doubt. I accept the Defendant’s concession and I find the Defendant guilty of this offence.

Impaired Operation by Drug

[63] Driving requires attention, decision-making (judgment), physical coordination, and reception/processing/response to external stimuli and information.

[64] The poor driving, which the Defendant concedes, is also indicative of his level of intoxication and the significance of his impaired ability. The Defendant chose to drive a badly damaged vehicle, with poor traction, while attempting to flee from police. He drove erratically, endangering himself, his passenger, and the public.

[65] The Defendant’s inability to keep awake moments after his arrest is entirely consistent with the known physiological effects of fentanyl and is otherwise inexplicable. The Defendant submits that his confused state and lack of initial response to the police commands were directly attributable to the police chase and forced containment, having a firearm pointed at him, [16] having had his window broken by the police with a baton, and having been almost tased, while surrounded by police. It is unimaginable that this level of excitation would result in constricted pupils, an appearance of swaying when walking, and the reduced consciousness observed by Cst. Webley, within minutes of the Defendant’s arrest, in the back of the police cruiser.

[66] I have considered time of day, surprise, fear of the police, and general fatigue as possible explanations for the Defendant’s driving, decision-making, appearance, coordination, admission, and the presence of significant amounts of CNS depressant drugs in his body, and I have rejected all of these independent circumstances as completely unresponsive to the overall circumstantial context created by the totality of evidence. When I evaluate all of the evidence as a whole, including the Defendant’s admission that he was experiencing the effects of fentanyl upon arrest, the only conclusion that I can come to is that the Defendant was significantly impaired in his ability to operate a motor vehicle by the prior consumption and presence of drugs in his body.

[67] I conclude that in addition to the significant cognitive, neurological, and physical impairment caused by the prior consumption of fentanyl, the Defendant’s judgment was also significantly impaired by drug intoxication. As a result of all of the evidence, I am satisfied beyond a reasonable doubt that the multiple functions and faculties required to drive were significantly depressed or affected by the presence of drugs in the Defendant’s system causing him to be impaired in his ability to operate a motor vehicle.

The Charter Application

[68] I have left this analysis to the end given the potential for mootness if I had not been satisfied that the Defendant had operated a motor vehicle while impaired by drugs.

[69] In the Defendant’s written Application, the Defendant singularly challenged Cst. Singh’s use of his taser upon the Defendant. During submissions, the Defendant agreed with my suggestion that the forced vehicle stop, Cst. Singh’s use of a baton to smash the Defendant’s window, and Cst. Barnhart’s use of his firearm were other examples of force used by the police which provided background and context to the taser deployment. I will discuss each use of force and the totality of force used to determine if the police violated the Defendant’s s. 7 or 12 Charter rights.

[70] At least one court has attempted to outline various considerations to determine the reasonableness of the use of force:

In assessing the reasonableness or necessity of the force used in any particular situation a court must take into account all the circumstances, including whether:

i. The suspect was acting in a hostile manner towards the police, resisting arrest or failing to comply with an officer’s arrest procedure; ii. The relative sizes and weights of the officer and the suspect; iii. The officer was at risk of harm; iv. The police knew the suspect had a history which might represent a threat to them; or v. The police understood that weapons might be on the premises. [17]

[71] To this list above, I would add the following as appropriate considerations:

vi. Whether the police believed that the suspect may be under the influence of an intoxicant; vii. Whether prior attempts had been made to apprehend or arrest the suspect; and viii. Whether alternatives to the use of force, or lesser uses of force, had been tried and failed.

The Use of Force to Stop the Defendant’s Flight From Police

[72] It is beyond contention that the Defendant drove dangerously when he attempted to evade police apprehension for possession of an allegedly stolen motor vehicle. [18] The Defendant’s driving endangered himself, his female passenger, the police and members of the public.

[73] There was no evidence of the distance covered or time spent to try to get the Defendant’s vehicle to stop. Constable Singh indicated that he did not initially use his police lights/equipment to stop the Defendant while he awaited backup to assist with the vehicle stop. It is unknown how long or the distance it took, while the Defendant actively continued to drive dangerously, to avoid stopping for the police. This driving conduct involved some high speeds and the Defendant having imperilled other motorists. His vehicle was in poor condition and it was operated erratically. This was an urgent situation which required police action.

[74] With every passing moment the runaway Infinity created a greater risk of harm to the public using our roads that night. The Decision to pass the Defendant with one police vehicle and box in the Defendant’s vehicle with a second police vehicle was entirely necessary in the circumstances. The Defendant would undoubtedly have continued to attempt to evade apprehension but for this use of force.

[75] This use of force was responsive, proportional, tactically sound, and reasonable. I find that no lesser use of force would have been appropriate, nor likely to succeed to end the considerable threat posed by the Defendant’s driving.

[76] I accept the evidence of Cst. Singh that he wanted to stop the Defendant safely. The method employed was successful. I find that neither occupant of the Infinity was injured by the tandem stop. Accordingly, on all the evidence, I am satisfied that the force employed was appropriate in every way.

Constable Barnhart’s Use of Force

[77] Constable Barnhart got out of the passenger side of the unmarked SUV and immediately unholstered his sidearm and pointed it at the Defendant’s vehicle. This is deadly force. The fact that he never fired his weapon or that there is no evidence that the occupants saw the firearm pointed in their direction does little to mitigate the use of force. This officer testified that he believed they “may have been in a situation where I wanted the cover of a firearm. As soon as I believed we weren’t in that situation anymore, I holstered it.”

[78] There is no issue taken with Cst. Barnhart’s credibility or the veracity of his claimed beliefs. Was it objectively reasonable to point a loaded firearm at a vehicle with two occupants in the circumstances?

[79] I conclude on a balance of probabilities that it was an objectively reasonable use of force to point a firearm in the direction of the occupants of the Infinity for the following reasons:

i. The police had no knowledge of the occupants of the vehicle – other than Cst. Barnhart’s awareness that there were two occupants, he knew not their identity, whether they had criminal records, whether they had weapons, or whether they may be violent toward police; ii. The driver had purposefully put other motorists and the police in a dangerous situation over an unknown distance over several minutes after allegedly ramming two police cruisers earlier in the day; iii. Cst. Barnhart had witnessed the Infinity attempt to cut off Cst. Singh’s marked police cruiser while it was tactically passing the Infinity; iv. The occupants did not immediately exit the vehicle as they were instructed by police; v. The engine of the Infinity continued to rev – indicating [19] that the driver may be trying to force his way out of the police blockade; vi. There was a risk that the vehicle could push the police vehicles and escape; [20] vii. Until he got close to the vehicle, he could not see what the occupants were doing; viii. There is no evidence that the officer ever considered firing his weapon; ix. There is no evidence that the officer ever pointed the firearm at the vehicle’s occupants as opposed to the vehicle; [21] and x. Once the officer ascertained that there was no longer a threat from the occupants of the vehicle he immediately holstered his firearm.

[80] In terms of s. 25 of the Code, I make the following findings:

i. The driver’s actions up until Cst. Barnhart drew his weapon were dangerous to many people along the route of the police chase and in the area where the Infinity was stopped; ii. From the entirety of information known about the Infinity driver, his actions were consistently resistant to police authority, violent, dangerous, and aggressive toward the police; iii. By the revving of the engine, it appeared that the driver was actively resisting being apprehended by the police; iv. It was known by Cst. Barnhart that the earlier investigation of the driver involved an allegation of impaired driving; the driver’s current state was unknown; v. The Infinity was in a compromised condition which Cst. Barnhart determined was unsafe to drive; vi. It was unknown whether the female occupant was in any danger or had voluntarily accompanied the driver; regardless, if the Infinity employed force to escape, she and other members of the public, could become seriously imperilled; and vii. As pedestrians in close proximity to the Infinity, all of the officers were extremely vulnerable to grievous injury or death if that vehicle even slightly moved and came into contact with them.

[81] I am satisfied that the prosecution has proven on a balance of probabilities that the deadly use of force employed by Cst. Barnhart was objectively reasonable, appropriate, proportionate, and successful. As an aside, I note that the force used did not injure or harm anyone and I find that it was not in any way excessive in the circumstances faced by the police at that time.

Constable Singh’s Use of Force

[82] Constable Singh used his police baton to smash the driver’s window before he attempted to use his taser upon the Defendant. Each use of force by Cst. Singh will be considered in turn.

[83] Constable Singh had less information than Cst. Barnhart:

i. There is no evidence that Cst. Singh was aware that the driver of the Infinity had rammed police cars earlier; ii. There is no evidence that Cst. Singh was aware that the driver of the Infinity may be impaired; and iii. There is no evidence that Cst. Singh was aware that the driver of the Infinity attempted to cut him off when he passed the vehicle before blocking it in.

[84] Constable Singh justified the use of his baton because he thought the driver was attempting to flee (given the engine sounds), and he wanted to stop that from happening. He also testified that he could not see clearly inside the vehicle and that also posed a risk to him and the police. I accept his rationale and his evidence respecting his subjective beliefs.

[85] I find that the use of the baton to smash the window was used as an intermediate tool of force. It is not a deadly weapon, however, I have no doubt that if the baton is used improperly or excessively, it can cause grievous bodily harm or death.

[86] I will not repeat what I have already said about the risks the Defendant posed to Cst. Singh and others. Most of the analysis respecting Cst. Barnhart’s restrained/defensive use of the firearm applies to the use of the baton by Cst. Singh.

[87] At the point when Cst. Singh decided to use his baton, he was much closer to the Infinity and the driver. I find that he was in a compromised environment. Constable Singh was very close to the driver and the vehicle. At that point, his fears were genuine and objectively reasonable. If the driver had moved the vehicle even slightly, it could have been fatal to Cst. Singh.

[88] Moreover, in light of the possibility that the driver had animus toward the police, [22] if he were in possession of any kind of weapon, Cst. Singh’s decision to use less than lethal force in approaching the driver was potentially calamitous. I find that given the proximity of Cst. Singh to the driver, he would be very unlikely to have been in a position to defensively respond if the driver had a bladed weapon or worse. The decision to use a baton when the engine was revving, the driver appeared to be resistant to police apprehension over an extended period of time, and the driver was in possession of a deadly weapon (the vehicle), was restrained in the circumstances.

[89] Police officers are entrusted to make difficult, nuanced, tactical decisions about the use of force in rapidly evolving circumstances. They are not required to needlessly put themselves in harm’s way or take unacceptable risks with their safety or that of others.

[90] The situation facing Cst. Singh was certainly rapidly evolving and dangerous. I find that this officer did not have the luxury of deliberation, discussion, or second thoughts.

[91] I find that Constable Singh was doing his best. I do not find that he was acting in a heavy-handed manner or without regard for the safety of the driver when he used his baton. The evidence suggests that he struck the driver’s window and it broke. He did not use the baton to threaten or strike the driver; instead, he continued to make observations and issue demands of the driver. This was reasonable and responsive to the situation he encountered as it unfolded in real-time.

[92] I am satisfied well beyond a balance of probabilities that Cst. Singh’s use of the baton was an objectively reasonable use of force.

[93] I will not repeat the circumstances facing Cst. Singh when he deployed the taser. He aimed it and fired it within about 3’ of the Defendant. One of its barbed probes struck the Defendant and it was later seen to dangle from the Defendant’s clothing during his arrest. Again, it matters not that the taser was ineffective. What is critical is why it was used and whether the belief in its requirement was objectively reasonable.

[94] Once he’d broken the driver’s window, Cst. Singh could see the dishevelled appearance of the driver, his small pupils, and a confused look. It was apparent to Cst. Singh that the Defendant could be under the influence of an intoxicant. These observations did not reduce the officer’s concerns.

[95] I find that the Defendant was a continuous danger to the police and the public in his state and in control of his vehicle until he voluntarily submitted to his arrest.

[96] Constable Singh testified that the Defendant did not respond when he was demanded to leave the Infinity. Moreover, the officer could not see the Defendant’s hands. These circumstances added to the officer’s legitimate safety concerns. Those concerns are objectively reasonable for the following reasons:

i. More time had elapsed and the driver was not complying with police demands to exit the car; ii. The driver was a stranger to Cst. Singh; the officer would have no way of knowing if the driver’s possibly compromised mental state (due to intoxication) would make him less or more aggressive; iii. The engine continued to rev despite the use of force in blocking in the driver and the smashing of his window; it appeared that the driver still wanted to flee from police; iv. The driver had obviously moved his hands from an area where they would normally be seen (on the steering wheel), before the window was smashed; v. Without the ability to see the driver’s hands, it was possible that he had a weapon and he was considering its use; and vi. The driver did not respond to the police; he was motionless; though this was described in the Defendant’s argument as passive resistance, when coupled with the movement of the driver’s hands, the failure to exit the car, and the sound of the engine revving, I find this behaviour was active resistance.

[97] The Defendant argued that it is possible given the engine noise that the driver did not hear or understand the police commands. There is no evidence of this. This theoretical possibility bears no relation to reality. After the attempted use of the taser, the Defendant immediately volunteered that he would come out and he did so, without any further demands or use of force. He knew and complied with the police demands that he allegedly did not hear or understand several seconds earlier.

[98] I do not accept that there was any confusion or inability to hear the police directions. The Defendant was in control of the car. He could easily have opened his window, opened his door, or shut off the engine if he wanted to better understand what was required of him. Instead, he gave every indication that he would not follow police directions and he was continuing to attempt to make good an escape.

[99] The Defendant did not suggest nor is there any evidence that Cst. Singh had other options available to prevent the Defendant’s possible escape or gain his compliance. I find that there were no lesser options available to Cst. Singh.

[100] The results also support my findings. Constable Singh immediately stopped all use of force once the Defendant indicated his willingness to comply. The officer did not even touch the Defendant until he was sprawled on the pavement, and even then, the officer merely patted him down for weapons, handcuffed him, and immediately assisted the Defendant to his feet. This shows restraint and humanity not aggression, loss of control, or a desire to punish.

Conclusions

[101] In all of the circumstances, I am satisfied on a balance of probabilities that all of the requirements of s. 25 of the Code have been met in each case where force was used upon the Defendant. The prosecutor has established with positive evidence that all uses of force in this case were warranted, appropriate, responsive to the circumstances, even-handed, and objectively justified. At each stage, no lesser use of force was appropriate or successful to end the Defendant’s objective dangerousness. While the end results do not prove the point, they certainly do little to contradict my findings. [23]

[102] If I am mistaken about the use of force in this case, I am satisfied on a balance of probabilities that the police actions were undertaken in good faith to end a dangerous and rapidly evolving situation created by the dangerous drug-induced actions of the Defendant. I would not have found that this is the “clearest of cases” requiring a stay of proceedings. If the police use of force was inappropriate, it was only marginally so.

[103] The evidence of driving and the Defendant’s behaviour, even in the absence of his admission and the blood analysis results would have satisfied me beyond a reasonable doubt that the Defendant was impaired by some type of drug. The presence of a pipe, being used by the female, would have assisted me in this conclusion. In the end, had I found any Charter violation and granted any relief, it would not have changed the outcome of this trial.

[104] Zachary Montgomery is guilty of both impaired operation and dangerous operation.

Revised and Re-Released: 13 January 2022 Justice G. Paul Renwick

[1] R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40 at para. 242. [2] R. v. Villaroman, 2016 SCC 33, [2016] S.C.J. No. 33 at paras. 17, 18, 22, 26, 27, 29, 30, 31, 32, 34, 35, 36, 41, 42, 55, and 56. [3] R. v. Whitfield, [1970] S.C.R. 46 at para. 9. [4] R. v. Genest, [1989] 1 S.C.R. 59 at para. 50. [5] R. v. Jarrett, 2021 ONCA 758 at para. 61. In Jarrett, the police used “knee strikes,” and tasered the Appellant to effect an arrest. So, despite the lack of evidence in this case respecting the lethality of a taser, I accept that a taser is a potentially lethal weapon and its use amounts to deadly force. [6] For example, when it was suggested in cross-examination that the Defendant made his utterance “after he was shocked,” Cst. Singh noted that the Defendant had not been “shocked” because both prongs of the taser did not attach to the Defendant, and it was not until the Defendant was getting onto the ground that he made the admission, he “will be coming down from fentanyl in a bit.” [7] I have considered that Cst. Barnhart testified that the Defendant drove at approximately 50 km/hr prior to the police stop, but the imprecision of when this occurred did not cause me to find that this evidence contradicted that of Cst. Singh’s observations of the Defendant’s speed. [8] I have cautioned myself not to give inordinate weight to witness demeanor, which is an inappropriate proxy for truthfulness: see R. v. Rhayel, 2015 ONCA 377, [2015] O.J. No. 2675 (C.A.) at para. 85. [9] I have cautioned myself that lay witnesses can offer opinions about sobriety, generally (R. v. Graat, [1982] 2 S.C.R. 819), but for the reasons given, I do not accept Cst. Malott’s ultimate conclusion. [10] Constable Webley agreed toward the end of his testimony that it was reasonable for someone to be tired around midnight, “depending on what they were doing prior,” and that sleepiness is not necessarily an indicator of impairment, because it could represent someone’s actual fatigue. [11] The Defendant raised no issues respecting the continuity of blood analysed by the forensic toxicologist. [12] Given the limited amount of information and the limitations of the opinion evidence, I have given the testimony of the presence of other drugs or metabolites at trace amounts no weight. [13] If anything, this assists the Defendant. Otherwise, one can assume that etizolam was in a higher concentration at the time of blood collection. [14] R. v. Roy, 2012 SCC 26, [2012] S.C.J. No. 26 at paras. 33-38. [15] Roy, supra, at paras. 39-42. [16] There is no evidence that the Defendant was ever aware that Constable Barnhart had used his firearm while approaching the Infinity. [17] R. v. Walcott, 2008 ONSC 11374, [2008] O.J. No. 1050 (S.C.J.) at para. 24. [18] There is no admissible evidence that the Infinity vehicle was actually stolen. To the contrary, the prosecutor withdrew the single count related to this allegation. [19] At this point, Cst. Barnhart would have no way to know if the driver was intentionally depressing the gas pedal or the accelerator was simply stuck due to the collision with the police vehicles. [20] Constable Barnhart was aware from his training that other suspects had successfully escaped similar blockades. [21] A strict reading of Cst. Barnhart’s testimony supports this finding. [22] The word “possibility” is warranted because Cst. Singh was not aware that the driver had rammed police vehicles and attempted to ram or cut off Cst. Singh. [23] Neither the Defendant nor any other person present was injured. I have no evidence whether or not the single taser barb even violated the Defendant’s bodily integrity, beyond its attachment to his clothing.