Court File and Parties

Court File No.: Central East - Barrie 3811-998-21-38100453-00 Date: 2023-05-12 Ontario Court of Justice

Citation: R. v. Loureiro, 2023 ONCJ 200

Between: Her Majesty The Queen — And — Marcel Loureiro

Before: Justice Peter N. Bourque

Counsel: A. Meiners, for the Crown N. Jackson, for the defendant Marcel Loureiro

Heard on: September 9, October 21, 2022 April 3, May 1, 2023

Reasons for Judgment Released on: May 12, 2023

Overview

[1] The defendant had an interaction in the Toronto-Dominion bank in Wasaga Beach. As a result of that interaction, the police were called, and this investigation ensued. The defendant is charged with impaired (by drug) care and control of an automobile on December 30, 2020.

Evidence of the Crown

Hayley Gionetelo

[2] ...works at the Toronto-Dominion Bank in Wasaga Beach. At 09:00, she was dealing with the defendant who wanted to withdraw some money. She was dealing with him while both of them were sitting. He attempted three times to retrieve his bank card from his wallet but he could not find it. He eventually fumbled with it and dropped it. She stated that “alertness and coordination were definitely a struggle for him”.

[3] She was able from some other information to get his PIN number (which he had forgotten) and got into his account and the withdrawal was made and the defendant was given an envelope with cash in it.

[4] As he was leaving the bank, he ran into the front window, and he dropped his money. Someone got his money for him. He walked out to the parking lot and he was parked in front of the bank. She saw his vehicle (a picture was filed as Exhibit 1A and 1B), and it appeared to be damaged. She saw him walk to the driver’s side (her view was from the front and passenger side) and he got into the vehicle from the driver’s side. She can’t say with 100 per cent certainty that she saw him sitting in the front seat of the vehicle.

[5] She did not recall seeing him with a cane. She recognized him as a bank customer but she does not remember assisting him on other occasions.

Samantha Prestage

[6] …is a police officer and was dispatched to the Toronto-Dominion bank in Wasaga Beach at 09:18 on December 30, 2020. She arrived at 09:20. On arrival, she saw a car in front of the bank. (She identified the car from Exhibit #1A and B).

[7] She stated that she saw the defendant in the car and she heard the car turning over but it had not yet started. She described that the door was closed and the window was up. The car was parked between two separate lanes over the yellow dividing line. She described his position in the car as having his left leg on the driver’s side and the right leg in the passenger side of the vehicle. She indicated he was “hunched over trying to start his vehicle”.

[8] She stated that she asked him to remove himself from the vehicle and he did so with difficulty, eventually coming out of the passenger side. She said he was stumbling as he was walking over to us. The defendant said he had trouble walking as he had two broken ankles (the officer testified that in the booking room he showed her his ankles and she saw scarring on both ankles).

[9] She believes he may have been under influence of alcohol and made an approved screening demand. He denied drinking any alcohol. He gave a suitable sample, and it was 0. She was going to read the demand for the roadside sobriety tests, but she went inside briefly and spoke to the witness Hayley Gionetelo. As a result of the information received from her, the officer came out and at 09:39, she arrested him for impaired driving by drug, and made the drug recognition demand. She drove him to the station where he fell asleep in the back of the cruiser in the short drive to the station.

[10] At the station she had interactions with him and noticed that he was stumbling while walking into the cell area, was swaying and his pupils were dilated. She arranged a call with duty counsel and while he was in the booth (there was a glass window), he fell asleep. She knocked on the window and he awoke. She fingerprinted him after his interview with the DRE and he was falling asleep and swaying while this was going on. He said he was cold and she gave him a blanket.

[11] She called for someone to come and pick him up and when that person arrived, she gave him his documents, and dropped them in the lobby of the police station.

Lorra Deasy

[12] …is an OPP officer of about 28 years’ experience. She has been an accredited Drug Recognition Evaluator (“DRE”) since 2006. She had completed an update to her certification in October 2020. She described the various procedures that she goes through in assessing a person.

[13] On Dec 30, 2020, she was made aware of a possible impaired driver. At 10:20 a.m., she met with Constable Prestage and received her grounds. The officer had not done a standard field sobriety test demand as she felt she had sufficient grounds, including information from the bank staff in the that fact he was dropping things when she spoke to him, that he was fumbling for his driver’s licence, and while he was sitting in the driver’s seat of the car he had his leg over the passenger seat. She performed an approval screening demand and it registered a 0.

[14] She believed she had sufficient grounds and she performed the 12-step evaluation, in accordance with her training. The officer made it clear that she does not come to any conclusions until she has finished all of the steps. She also stated the she was always looking to see if any of the observations she made were as a result of illness or injury.

[15] Some of the tests were shown on a video and it was filed as an exhibit. It was noted that she did not perform one of the tests namely: standing on one foot. She explained that this did not affect her final opinion.

[16] She stated that the defendant complained of the cold and wanted a blanket and was shivering. During the tests, he was swaying forward and back and was seeming to fall asleep. He could not cross his eyes.

[17] One of the tests is an observation by the witness of whether there is any marks on the defendant’s body which would indicate drug use. The officer described several places on the arms and hands of the witness which were the obvious signs of injection with a hypodermic needle. She filed as exhibits two pictures which illustrated many, many red marks and “tracks” which had places where there were obvious scabs and recent signs of blood. The officer was of the opinion that some of the locations were consistent with recent drug injections.

[18] Ultimately, she was of the opinion that the defendant’s ability to operate a motor vehicle was impaired by the ingestion of a drug. The signs of impairment noted by these witness were:

(i) Swaying during most of the tests – upwards of 6 inches which was the most the officer had seen in her experience;

(ii) Falling forward during several tests; and,

(iii) Inability to understand and follow instructions in several of the tests.

[19] All of the witness’s evidence was observable on the video exhibit.

[20] The officer was of the opinion that the drug was in the class of a narcotic analgesic.

[21] The officer showed a chart used by her to compare the symptoms noted by her to the various symptoms of the 7 major drug groups. It was her opinion that under the heading of “narcotic analgesics”, the defendant’s symptoms (or lack of symptoms) matched almost completely the chart for the same drug.

[22] The officer made a demand for a urine sample. One was obtained and that sample was sent to the Centre of Forensic Sciences for analysis.

Results of Urine Test

[23] Filed as an exhibit was the result of the analysis of the urine test. 8 different drugs were detected in the sample. Several of them would be classified as “narcotic analgesics”.

[24] The report points out that amounts cannot be determined and nor can the issue of impairment, from this report.

Analysis

A. Was the Defendant in care and control of a motor vehicle?

[25] The bank employee puts him on the driver’s side of the motor vehicle but does not see him inside the vehicle. While this is some circumstantial evidence of care and control, this would not, in and of itself, be proof beyond a reasonable doubt of care and control. For that we must look to the police officer’s evidence.

[26] The officer found him in the front area of the vehicle. She described him with the left leg on the driver’s side and the right leg on the other side. He was “hunched over trying to start the vehicle”. She describes it as “clicking and not starting”. The driver’s door was closed and when she asked him to get out of the car, he tried to “crawl out” and get out of the passenger side.

[27] Section 320.35 Criminal Code reads 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.

[28] It is the submission of the defence that only being partway into the driver’s seat does not satisfy this presumption as his posterior was more likely over the console. In other words, if only a part of the defendant’s body is in the driver’s seat (in this case his left leg), then he cannot be in “occupation of the seat or position ordinarily occupied by a person who occupies a conveyance.

[29] I beg to differ. In my opinion, to occupy the seat in this context is any occupation which allows him to perform any significant function of operating a motor vehicle. He was partway into the seat and he was in such a position that he was able to operate the key to start the vehicle.

[30] I am of the view that any occupation of the driver’s seat by any part of the upper body would satisfy this section. The defendant did not lead any evidence to rebut the presumption.

[31] However, even if I am incorrect, I would perform an analysis as set out in R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157:

“Care or control” within the meaning of s. 253(1) of the Criminal Code signifies (1) an intentional course of conduct associated with a motor vehicle; (2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; (3) in circumstances that create a realistic risk of danger to persons or property. With respect to the third element, the risk of danger must be realistic and not just theoretically possible. Parliament’s objective in enacting s. 253 of the Criminal Code was to prevent the risk of danger to public safety that normally arises from the mere combination of alcohol and automobile. Conduct that presents no such risk falls outside the intended reach of the offence. To require that the risk be “realistic” is to establish a low threshold consistent with Parliament’s intention.

[32] In our case the defendant’s intention is clear from his use of the key in trying to start the automobile. The defendant was the sole occupant of a vehicle, he is partially in the driver’s seat and he is the only one in the car. He has just left the bank. The defence points to the fact that the vehicle was not actually started. That, without further evidence does not negate the reasonable inference that when a person attempts to start a car, that is what he wants to do and could be able to do.

[33] There are several cases where a vehicle needs some type of assistance to put it in motion (I do not accept that any such assistance is required here) and the risk of danger to persons or property is still real. I do not know whether the vehicle would not or could not start. I know the defendant was in the process of starting it. Without some further evidence that this vehicle was incapable of being started or moved, then it would be speculation, without any other evidence to say it could not start and therefore there was no danger of moving this vehicle.

[34] I find that this defendant was in care and control of the automobile.

B. Was as the defendant’s ability to operate a motor vehicle impaired by drug?

[35] The Crown must prove all the elements of this count beyond a reasonable doubt. For the following reasons, I find that the defendant’s ability to operate a motor vehicle was impaired.

[36] The defendant was identified in the bank by the witness Ms. Gionetelo. Her observations of the defendant were that he was fumbling to get his identification from his wallet and eventually dropped it. She described him as his “alertness and coordination were definitely a struggle for him”. She saw him go up to the window and bump into it and he dropped his envelope of money. She saw him go up to the driver’s side of the vehicle (identified by the exhibit pictures). She did not see him step into it.

[37] Her evidence is some evidence of impairment of the defendant, and it places him at the side of the motor vehicle.

[38] The principal evidence of impairment is from the DRE Officer Deasy. It was her conclusion at the end of her evidence in-chief, that the defendant was impaired by the ingestion of a narcotic analgesic

[39] The officer described the 12-stage process and described how she went through each stage. The officer was clear that no conclusions about drug impairment can be made without an analysis of all of the steps in total. In other words, there is no single test that the officer relies upon in giving her opinion. I will not review all aspects of her testimony but will concentrate on those issues raised by the defence.

[40] The defendant at the time of the booking pointed out that he had ankle fractures some 5 years before and he stated that he could not stand on one leg. It was the submission of the defence that this “tainted” the results from all of the tests taken while he was standing. The officer was of the view that she did take this into account by not asking him to take any of the tests where he would have to stand on one leg.

[41] With regard to the other tests taken while standing, the officer agreed that if he was in some pain which made standing painful, it could affect some of the results of these tests. She pointed out that several of the tests (taken while standing) also involved following instructions and estimating time, which would not have been affected by standing. She also stated that while he was swaying for some of the standing tests, the defendant never stated he was in any discomfort from the standing.

[42] The question I must ask myself, is whether, on all of the evidence, the evidence that the defendant told the officer of ankle fractures some 5 years ago, and his insistence that he could not stand on one leg, the evidence of the observations of the officer while the defendant was taking some of the tests on his feet (or walking) impacts upon the veracity of her observations, insofar as it relates to his possible impairment. I find it does not.

[43] For the reasons set out above, I am not convinced that any of those tests were at all impacted by this issue. He was aware enough to speak to the officer about standing on one leg. The officer responded by not making him do this. He showed no discomfort, nor did he object when asked to stand (on two legs) or walk for some of the tests. And finally, even if some possible discomfort had some impact on his ability to stand or walk, not all aspects of these tests were an observation of his standing and walking.

[44] The defendant pointed out that with regard to her observation about shivering, it was in December, and it was very cold outside. The officer indicated that she felt it was warm in the station (except the garage which was cooler) and she was wearing a short-sleeved shirt, although she clearly wore more clothes than the defendant.

[45] The defendant also raised the fact that not all tests were conclusive, and some tests did not indicate the final conclusion. The officer indicated that some drugs found in the defendant’s system would have inhibited some of the results.

[46] The officer reiterated many times that it was the totality of all of the tests that led her to her conclusion of impairment.

[47] As per R. v. Bingley, 2017 SCC 12, [2017] S.C.J. No. 12, I accept that the officer had special expertise and was an expert for the purpose of administering the 12-step evaluation and for providing an opinion as to whether the defendant was impaired. While there is some case law where the DRE’s opinion has been rejected, it appears to be in cases where there is no other independent signs of impairment.

[48] In this case, we have many indications of impairment, from the evidence of the civilian working in the bank to the two police officers.

[49] I also note that at one point when the defendant was at the station, he was sitting down and he let a thermometer drop from his mouth.

[50] Based on all of the evidence and particularly the evidence of the DRE, I find that the defendant was impaired by a drug or combination of drugs which were narcotic analgesics.

Conclusion

[51] I therefore find the defendant guilty of the offence of impaired by drug care and control of a conveyance under section 320.14 (1) (a) Criminal Code.

Released: May 12, 2023 Signed: Justice Peter N. Bourque