ONTARIO COURT OF JUSTICE
DATE: 2024 11 18 COURT FILE: Toronto 23-48107733
BETWEEN:
HIS MAJESTY THE KING
— AND —
MICHAEL KEFLE
JUDGMENT
Before: Justice Brock Jones
Heard on: September 9, 10, and November 6, 2024 Written Reasons Provided on: November 18, 2024
Counsel: A. Singh, counsel for the Crown R. McCartney, counsel for M. Kefle
Jones J.:
Introduction
[1] Michael Kefle is charged with one count of operating a motor vehicle while his ability to do so was impaired by alcohol (Criminal Code section 320.14(1)(a)) and one count of operating a motor vehicle while his blood alcohol concentration exceeded 80 mg of alcohol in 100 ml of blood (Criminal Code section 320.14(1)(b)).
Overview of the Crown’s Case
(i) Testimony of Brian Noseworthy
[2] Brian Noseworthy was employed as a private security officer at Michael Garron Hospital on June 11, 2023. Walking to a nearby subway station, he found Mr. Kefle’s motor vehicle at 7:14 a.m. near Springdale Boulevard and Coxwell Avenue. He described the vehicle as a silver or grey two-door coupe, likely a Hyundai Sonata. The windows were tinted, and he had difficulty seeing inside the vehicle.
[3] The car was parked across the curbside and centre lanes. The car's back end was in the centre lane, a live traffic lane. He noticed that the driver appeared to be unconscious. He was slumped over the steering wheel. His hands were on his lap. His head was down into his chest. There was no one else inside the vehicle.
[4] He knocked on the driver’s side window and received no response. He raised his voice to get the driver’s attention unsuccessfully. He was concerned the driver might be having a medical incident. While the car was not moving, it was only being held in place by the driver’s foot remaining on the brake.
[5] He called 911, provided a vehicle description, including the licence plate number, and relayed his concerns.
[6] Mr. Noseworthy was eventually able to communicate with the driver. He heard slurred, incoherent speech. The driver’s eyes looked glazed, drowsy and half-shut. He did not seem to be reacting normally. He had difficulty walking in a straight line.
[7] The driver said he was “fine” and exited the vehicle. He staggered around the sidewalk and walked to the back end of a house nearby. The Crown played a portion of video surveillance from a camera located at this address. This video footage confirmed many, but not all, of Mr. Noseworthy’s observations. [1]
[8] The driver was a black male with some facial hair, a short haircut, and a medium to slender build, wearing blue jeans, a black t-shirt with a distinctive “splash” pattern depicted on it in white colour, and white Nike running shoes. He was somewhere between 6’2” and 6’5” tall.
[9] Toronto Fire Personnel arrived on the scene and interacted with the driver. The driver re-entered his vehicle despite the fire crew yelling at him to stop. The driver lurched forward, pulled into the centre lane, and signalled right and left. He weaved across another vehicle and turned left onto Sammon Avenue. He was driving at 10-15 km/hr.
[10] Mr. Noseworthy called 911 again to communicate where the suspect driver had travelled.
(ii) Testimony of Jeffrey Bryan
[11] Acting Fire Captain Jeffrey Bryan and his crew attended at approximately 7:15 a.m. after the first 911 call. He noticed the vehicle was on an angle, on a busy road.
[12] The driver was walking around when he arrived. He asked the driver if he was ok, and the man just pushed past him. He described the driver as a black male in his mid-20s to early 30s, of “average height,” with a thin build. He insisted on getting into his car.
[13] After the driver left the scene, he and his crew began to return to the fire station. On their way back, they noticed the same car and followed it to 1498 Gerrard Street East. There, they waited with the driver until the police arrived. Mr. Bryan was sure it was the same man with the vehicle at this second location.
(iii) Testimony of PCs Niezen and Cabral
[14] PC Niezen received a call for a possible impaired driver around 7 am. He was provided with a description of the male and the vehicle. He checked the licence plate on a police database and learned it was registered to Michael Kefle. He called a cellphone number on file for him. A male person answered, who responded affirmatively to the name Michael. The male’s speech was slurred. PC Niezen told him to pull over and stop driving, but the male kept answering, “Where are you?”. PC Niezen heard a turn signal over the phone, which led him to believe the driver did not pull over as requested and continued driving.
[15] He attended at 1498 Gerrard Street East and located Mr. Kefle around 7:48 a.m. He observed Mr. Kefle to be unsteady on his feet and slow to respond to questions. The hood of his car was warm to the touch, suggesting he had just been driving. He placed handcuffs on Mr. Kefle at 7:51 am and told him he would have to do a breath test. PC Niezen provided inconsistent answers about whether he noticed a smell of alcohol. During cross-examination, he agreed he could not confirm this factor before Mr. Kefle was arrested. At a later point, he insisted he did know it was an odour of alcohol before Mr. Kefle was arrested.
[16] In his body-worn camera footage, PC Niezen is heard asking PC Cabral if they should make a demand for an approved screening device breath sample or not.
[17] PC Cabral attended shortly after PC Niezen. He immediately noticed an odour of alcohol on Mr. Kefle’s breath. He had slurred speech and kept repeating himself. PC Cabral arrested Mr. Kefle at 7:52 a.m. and read him his rights to counsel and a breath demand. Mr. Kefle indicated he wanted to speak to counsel.
[18] Once Mr. Kefle was placed inside the squad car, a strong smell of alcohol was noticeable in the contained environment. Mr. Kefle was transported to the Traffic Services Division (“TSV”), and they arrived at 11:23 a.m. Mr. Kefle was provided with his right to counsel again. The booking sergeant informed him he would be allowed to leave when he “sobered up.”
[19] Mr. Kefle was able to speak to duty counsel at 9:10 a.m. He provided two breath samples afterwards and was returned to an interview room. Those samples were measured to be 190 and 170 mgs of alcohol / 100 ml of blood. He was then charged with the offence of “over 80” and re-read his rights to counsel. At 9:57 a.m., he told PC Cabral he wanted to speak to a lawyer again.
[20] He was then transported to 55 Division, where he would be released once the officers deemed it safe. He arrived at 11:08 a.m. and was paraded before the on-duty sergeant.
[21] PC Cabral agreed in cross-examination that Mr. Kefle was cooperative while in custody. It was a “normal practice” to hold someone intoxicated until they were sober before being released into the community. Once he was at 55 Division, his responsibility for Mr. Kefle ended, and he did not know if anyone checked on him regularly there.
[22] Mr. Kefle was released from 55 Division at approximately 3:05 p.m.
Defence Evidence
(i) Testimony of Mr. Kefle
[23] Mr. Kefle testified on the Charter voir dire. He was given access to duty counsel when he arrived as TSV after requesting a lawyer. After taking the breath samples, he again requested a lawyer and expected the officers to allow him to speak with one at 55 Division, just as they had when he first arrived at TSV. Yet that never occurred.
[24] The police officers never asked him if they could contact someone to pick him up. He knew his roommate would have done so if they contacted him.
Positions of the Parties
[25] On behalf of his client, Mr. McCartney submits that three Charter breaches occurred. First, the police lacked reasonable and probable grounds to arrest Mr. Kefle and make a demand for a breath sample, violating sections 8 and 9 of the Charter; second, that his client should have been given an opportunity to re-consult with counsel after providing his breath samples, violating section 10(b); and third, that he was subject to unlawful “overholding” violating section 9.
[26] Regarding the decision to arrest his client, Mr. McCartney submits the officer’s testimony was exaggerated and inconsistent with what can be seen on the body-worn camera footage. Mr. Kefle did not have trouble standing or walking. He was able to speak clearly and answer the officer’s questions. Only PC Cabral noticed an odour of alcohol on his client’s breath. The officers jumped too quickly to arrest Mr. Kefle for impaired driving and did not have objectively reasonable grounds to do so.
[27] After he provided his breath samples at TSV, he requested a second opportunity to speak to counsel. Even though he promised to do so, PC Cabral never took steps to implement that right. His client faced a change in jeopardy. Therefore, this was a violation of his right to re-consult counsel.
[28] Third, the officers did not have a lawful basis to hold him for many hours after he provided breath samples. They were speculating about his proposed danger to the community. He was coherent and alert, and the booking video at 55 Division demonstrates he was not nearly as intoxicated as the officers suggested. They failed to consider reasonable alternatives to detaining him at this time.
[29] If I find a violation of Mr. Kefle’s Charter rights, he seeks a stay of proceedings under Charter section 24(1) for both charges or the exclusion of evidence under Charter section 24(2), including the breath samples and all observations made of his client while in police custody.
[30] Ms. Singh submits that Mr. Kefle’s Charter rights were not violated. The officers had reasonable and probable grounds to arrest Mr. Kefle for impaired driving and make a breath demand. He was not entitled to re-consult with counsel in these circumstances. The decision to hold him in custody for several hours until he sobered up was fair and reasonable, given his high readings and the concerns articulated by the officers about public safety should he have been released, intoxicated, in Liberty Village.
Charter Applications
(i) Charter Sections 8 and 9 – Grounds for Arrest and Breath Demand
[61] The Crown bears the onus of justifying the grounds for an arrest and subsequent warrantless search where both are challenged under sections 8 and 9 of the Charter: see R. v. Gerson-Foster, 2019 ONCA 405, at para. 75.
[62] An officer must have reasonable and probable grounds to arrest a person without a warrant for a criminal offence: Criminal Code section 495(1)(a). The officer must subjectively believe the person committed the offence, and objectively, reasonable grounds for this belief must exist: R. v. Rhyason, 2007 SCC 39 at para. 12. This is not an onerous test in the context of impaired driving investigations: R. v. Bush, 2010 ONCA 554, at para. 46. The officer is only required to have reasonable grounds to believe that the motorist’s ability to operate a conveyance was impaired “to a slight degree”: see R. v. Wang, 2010 ONCA 435 at para. 17.
[63] The fact that other possible explanations exist for what appear to be indicia of impairment does not detract from the existence of reasonable and probable grounds: Shepherd, supra at para. 23; Bush, *supra* at para. 57. An officer is not required to rule out all other possibilities, such as fatigue.
[31] Furthermore, as the Court of Appeal held in Bush, a “trained police officer is entitled to draw inferences and make deductions drawing on experience”: see para. 61. Hearsay may be considered: R. v. Lewis, 1998 7116 (ONCA), at paras. 15-16. While often cited in support of the grounds for an arrest for impaired driving, there is no absolute requirement that an officer have directly observed the suspect’s poor driving or handling of the conveyance: see, for example, R. v. Grant, 2014 ONSC 1479, at para. 61 and R. v. Leppanen, 2015 ONSC 2973.
[32] In this case, PC Niezen and PC Cabral testified that the decision to arrest Mr. Kefle was jointly made. PC Niezen placed handcuffs on Mr. Kefle at 7:51 am but did not formally advise him he was under arrest. Nor did he explain the criminal charge he was now facing. He told him, "You’re going to have to do a breath test,” but did not specify what test. When pushed on his understanding of the distinction between an ASD demand and a demand for samples to be provided to a qualified technician, PC Niezen deflected. He replied that “we knew we had enough to take him in for impaired operation,” and he “meant a standard breath sample.”
[33] PC Niezen was an inexperienced officer. He had only investigated “a few” impaired driving cases before. This was his first time testifying in court. He relied upon the observations about the suspect’s driving and behaviour that he had received over the radio, which included that the suspect was passed out when first located. He also relied upon his conversations over the phone with Mr. Kefle before their in-person interactions. During this conversation, PC Niezen described his speech as slurred, and it sounded like he was impaired.
[34] Yet when he first saw Mr. Kefle face to face, he was inconsistent about whether he smelled an odour of an alcoholic beverage on his breath. He admitted he was “not sure” and “could not confirm if he was smelling alcohol.” On the second day of his testimony, he attempted to shore up this belief but did not deny his underlying uncertainty at the time. His testimony was inconsistent in this respect.
[35] I find that PC Niezen did not subjectively believe he had reasonable and probable grounds to arrest Mr. Kefle and make a breath demand despite his testimony. He did have a reasonable suspicion that Mr. Kefle had consumed alcohol and could have made a demand for an ASD sample (indeed, had an ASD been present at the scene, no grounds were required at all: see Criminal Code section 320.27(2)). This explains the discussion captured on his body-worn camera footage between himself and PC Cabral about whether they had access to an ASD. He would not have asked those questions if he was truly satisfied he had grounds to make an arrest for impaired driving and make a breath demand under Criminal Code section 320.28(1)(i).
[36] I do not accept PC Niezen’s testimony that he observed alcohol on Mr. Kefle’s breath before the time he was formally detained and handcuffs were placed on him. Even accepting the balance of the information available to PC Niezen at the time, he did not have objectively reasonable grounds to arrest for impaired driving. The absence of evidence of alcohol on a motorist’s breath is a significant factor in determining if reasonable and probable grounds exist for such an arrest: see R. v. Bilokrely, 2009 498 (S.C.J.) at paras. 35-44; R. v. White, 2015 ABPC 77, at paras. 42-45.
[37] However, PC Cabral testified that he did notice a strong odour of an alcoholic beverage on Mr. Kefle’s breath immediately when he spoke to him alongside PC Niezen. PC Cabral was far more experienced in investigating impaired driving. He explained that this odour, combined with the information he received over the radio and the firefighter’s statement that Mr. Kefle was the same person they had witnessed outside the vehicle earlier that day, provided him with sufficient grounds to make an arrest. The information he received included that the driver had been slumped over the wheel of the car, unconscious, and staggered around before leaving the scene where he was first located. This type of information is recognized as highly probative when determining whether reasonable and probable grounds exist: see R. v. Singh, 2021 ONSC 1382, at para. 35.
[38] PC Cabral added that he observed Mr. Kefle's slurred speech and glossy eyes, that he heard Mr. Kefle repeat himself several times, and that Mr. Kefle swayed when speaking to him. During cross-examination, he reviewed his body-worn camera footage and agreed with Mr. McCartney that Mr. Kefle’s speech did not sound slurred and that the swaying was not perceptible. His willingness to reconsider his observations during cross-examination speaks to his honesty and integrity. I found PC Cabral to be a credible and reliable witness. He provided detailed answers, and I accept his testimony.
[39] Even without relying upon the observation of slurred speech or glossy eyes, and considering any swaying Mr. Kefle displayed may have been minor, I find PC Cabral did have reasonable and probable grounds to make an arrest and a breath demand considering the rest of the evidence available to him. That information included reports from a civilian witness that the driver was unconscious in the vehicle, which was parked at an angle across two lanes of a busy road. He then regained consciousness and drove away until he was located by Toronto Fire Personnel, who were sufficiently concerned with his condition that they felt the need to contact the police. Combined with the smell of an alcoholic beverage emanating from Mr. Kefle’s breath and his speech demonstrating nervousness and unnecessary repetition, this was enough.
[40] It is also noteworthy that while PC Niezen placed Mr. Kefle in handcuffs at 7:51 am, he did not say he was “under arrest.” Instead, PC Cabral, at 7:52, formally read the words of arrest for impaired driving, provided Mr. Kefle with his right to counsel, a caution, and then made a breath demand.
[41] Thus, even if PC Niezen did violate Mr. Kefle’s Charter rights by placing handcuffs on him and effectively making an arrest without sufficient grounds, it was of little to no moment, as only a minute later, PC Cabral made a lawful arrest.
(ii) Charter Section 9 – Overholding
[42] Sections 498(1) and (1.1) of the Criminal Code require that police officers release a detainee “as soon as practicable” unless the detainee is brought before a justice. As soon as practicable does not mean as soon as possible, but within a reasonable time in the circumstances. The police must release a detainee unless it is “necessary in the public interest that the person be detained… having regard to all the circumstances including the need to:
(i) Establish the identity of the person; (ii) Secure or preserve evidence of or relating to the offence; (iii) Prevent the continuation or repetition of the offence or the commission of another offence; (iv) Ensure the safety and security of any victim of or witness to the offence.
[43] Section 493.1 further states that in making any decision regarding the detainee's release, a police officer “shall give the primary consideration to the release of an accused at the earliest reasonable opportunity.”
[44] Mr. McCartney submits that keeping Mr. Kefle in police custody until 3:05 p.m. violated his rights under section 9 of the Charter. It was done arbitrarily and in violation of these provisions of the Criminal Code. He provided his last sample at 9:53 a.m. and was held for another six hours.
[45] The burden of proving a violation of section 9 of the Charter, such as overholding, falls on the applicant.
[46] Whether the police decision to continue to detain Mr. Kefle was reasonable regarding all the circumstances is the central question on an overholding claim: see R. v. Babulal, 2021 ONSC 3531, at para. 34. A police decision to hold the accused in custody must be based on reasonable grounds. An individualized assessment of the accused’s case is required, and the police cannot rely solely on general practices or policy: see R. v. Polusmiak, 2022 PECA 8, at para. 59.
[47] I agree with the Crown that when dealing with highly intoxicated accused persons, the police must be aware of the concern that such a person may cause harm to themselves or others if released back into the community in that state: see Babulal at para. 35.
[48] Mr. Kefle’s readings were truncated to 190 and 170 mg of alcohol in 100 ml of blood. These are extremely high readings that are over twice the legal limit. PCs Niezen and Cabral testified that while Mr. Kefle was still as TSV, they had concerns about releasing him given his state of sobriety, high readings and apparent inability to understand the documents he had been served with. Those concerns were reasonable.
[49] In R. v. Price, 2010 ONSC 1898, at para. 93, Durno J. held that the factors to consider when determining whether the police could lawfully keep an accused in custody in this context included the accused’s blood alcohol level, the availability of another person to pick up the accused, whether the accused was charged with impaired operation before, their level of comprehension, whether the accused has a related criminal record, whether the accused had outstanding charges, and their attitude at the time.
[50] Throughout his time in police custody, Mr. Kefle demonstrated visible signs of impairment. He had difficulty answering the officers’ questions directly. He repeated himself. His level of comprehension was not always consistent, as demonstrated by both the body-worn camera footage and the booking hall video. At times, he appeared to understand what was happening, and other times, he seemed confused and at least somewhat defiant of the officers.
[51] While Mr. Kefle did not have a prior criminal record or outstanding charges, it was reasonable for the officers to have been genuinely concerned about releasing him from their custody immediately following the provision of his breath samples. Both his safety and the safety of other members of the public could have been placed in jeopardy. PC Cabral explained that if he were released from TSV in that state, he would be near Liberty Village, which has a large population, many motor vehicles, and regular traffic. He might have interacted with another person when he could not properly maintain his composure or have wandered into imminent danger.
[52] Mr. McCartney further argued that the police could have contacted someone to assist him, such as his wife, to facilitate his release from custody sooner. I agree that this is a relevant consideration: see Babulal in para. 35. I accept Mr. Kefle’s testimony that he had a friend available, in theory, to pick him up. He never requested to make a phone call to this person, so it is unknown if they could assist him. [2] Nor did this friend testify to explain he was available and would have attended if called.
[53] Yet this is not necessarily determinative of the issue of “overholding.” In R. v. Kavanagh, 2017 ONSC 637, at para. 41, Heeney R.S.J. held:
[T]he suggestion that an accused with a high blood alcohol content can simply be off-loaded by the police to a civilian is open to valid debate. …If an accused with a high blood alcohol content were released to a friend or family member, and then fell and seriously injured himself due to his alcohol consumption, the police should have a valid concern as to whether they might be held liable for his injuries. Even worse would be the situation where the accused chose to get behind the wheel of a different vehicle after his release, notwithstanding the efforts of his chaperone.
[54] Given Mr. Kefle’s extreme level of intoxication, it was well within the officers’ discretion to decide against releasing him at TSV. 55 Division was much closer to his home address. He was released at 3:05 p.m. Mr. Kefle’s detention during this period was reasonable based on an objective review of all the circumstances. He represented a danger to himself and others. His release back into the community could have resulted in another offence being committed, or he may have harmed himself (such as by slipping or falling), or he may have otherwise put his safety in danger. The officers' decision to wait for him to sober up and calm down before releasing him constituted a safe and reasonable approach to the totality of the circumstances: R. v. Kim, 2022 ONCJ 49, at para. 43. They must be afforded some degree of latitude in making what is fundamentally a difficult judgment call, balancing the liberty interests of the accused against their obligation to ensure the safety of the accused and members of the public.
[55] While the amount of time the police hold a detainee might raise constitutional concerns if they do not consider his specific circumstances (see, for example, R. v. Iseler, 2004 34583 (Ont. C.A.) at para. 25), I note that the time of release by itself is generally insufficient to establish a violation of section 9 of the Charter in the context of a claim of overholding: see R. v. Garrido-Hernandez, 2017 ONSC 2552 at para. 40; R. v. Ruscica, 2019 ONSC 2442, at para. 55; R. v. Kaur, 2021 ONCJ 683 at para. 180. The issue is whether the police acted reasonably based on the information available at the time.
[56] I find no breach of section 9 of the Charter.
(iii) Charter Section 10(b) – Change Of Jeopardy
[57] Mr. McCartney argued that even if the decision to hold Mr. Kefle in custody at 55 Division was justified, a serious violation of Mr. Kefle’s right to counsel nevertheless occurred. At 9:57 a.m., while he was still at TSV, he was re-arrested by PC Cabral for the “over 80” charge and given his right to counsel again. PC Cabral acknowledged that Mr. Kefle was facing a change in his jeopardy. Due to this new charge, Mr. Kefle wanted to speak to a lawyer.
[58] Unfortunately, he was never provided with that opportunity. PC Cabral did not inform any other officers of Mr. Kefle’s decision to exercise his right to counsel. When Mr. Kefle was transported before the booking sergeant at 55 Division, a discussion arose about placing him in contact with counsel. PC Cabral did not inform the sergeant about Mr. Kefle’s prior request and stated that Mr. Kefle had spoken to duty counsel, leaving the sergeant with the impression he was not required to do anything more. Mr. Kefle was held at 55 Division for three and a half more hours and was never assisted with contacting a private lawyer or duty counsel again.
[59] Mr. Kefle testified on the Charter voir dire that he expected the police to provide him with access to counsel. He had never been arrested before and trusted the officers. I accept his testimony. It struck me as sincere and was not contradicted by any other source of evidence.
[60] I do not find that PC Cabral intentionally denied Mr. Kefle his right to counsel, nor did he intend to mislead the booking sergeant. Indeed, what he said was technically accurate – Mr. Kefle did speak to duty counsel while at TSV. But that conversation occurred before he was re-arrested on the “over 80” charge.
[61] In R. v. Sinclair, 2010 SCC 35, the Supreme Court of Canada described the purpose of the right to counsel at para. 26 (my emphasis added):
The purpose of the right to counsel is “to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights”: R. v. Manninen, 1987 67 (SCC), [1987] 1 S.C.R. 1233, at pp. 1242-43. The emphasis, therefore, is on assuring that the detainee’s decision to cooperate with the investigation or decline to do so is free and informed.
[62] Section 10(b) normally only requires that a detainee be granted the opportunity to consult with a lawyer once. However, the Supreme Court recognized in Sinclair that in “some circumstances, a further opportunity to consult a lawyer may be constitutionally required”: see para. 43. This is contingent upon a material change in the detainee’s situation after the initial consultation. The detainee is entitled to a second opportunity to consult with counsel where it is “necessary in order for the detainee to have information relevant to choosing whether to cooperate with the police investigation or not”: see para. 48.
[63] Ms. Singh correctly noted that the police investigation was completed by the time Mr. Kefle requested a second opportunity to speak with counsel. In her submission, the purpose of section 10(b) did not require a second consultation with counsel, as there was no concern that Mr. Kefle required legal advice about whether to cooperate with a further police investigation. That is because none was occurring. The officers had completed their case and would ultimately release Mr. Kefle. There was not a meaningful change in jeopardy. The officer’s subjective view is not dispositive of this matter.
[64] In Sinclair, the Supreme Court commented that “[t]he police, of course, are at liberty to facilitate any number of further consultations with counsel”: see para. 49. But the categories of cases where they are constitutionally required to do so “should be developed only where necessary to ensure that s. 10(b) achieved its purpose.” While it would have been preferable for PC Cabral to take more diligent steps to ensure that Mr. Kefle’s request to speak to counsel a second time was provided to the booking sergeant at 55 Division, I cannot accept the argument that his rights under section 10(b) of the Charter were violated. He was not required to be allowed to re-consult with counsel.
Over 80 Charge
[65] Having dismissed the Charter application, and with no other arguments having been made about this count, I find Mr. Kefle guilty of count 2, the “over 80” charge.
Impaired Driving Charge
[66] As with the “over 80” charge, Mr. Kefle is presumed innocent of the impaired driving charge. The Crown must prove each essential element of the charge against him beyond a reasonable doubt.
[67] Any degree of impairment, from slight to great, is sufficient to make out the offence of impaired driving: R. v. Stellato, 1993 3375 (Ont. C.A.).
[68] Mr. Noseworthy testified calmly and dispassionately. He had a solid independent recollection of the events. He had the opportunity to make precise, direct observations of the driver and his vehicle, and some of his testimony was confirmed by the video surveillance footage taken from a nearby residence. He responded to questions fairly in cross-examination. While he could not remember every detail asked of him by Mr. McCarney in cross-examination, he was very detailed with those aspects he remembered. He readily conceded he did not smell alcohol on the driver, although he maintained he was not close enough to detect it. I find he was a credible and reliable witness, and I accept his testimony.
[69] He observed the driver slumped over the car's steering wheel while positioned at an angle in a live traffic lane. The car remained in place only because the driver’s foot was on the brake. The driver did not respond to his initial attempts to get his attention. When the driver finally exited the vehicle, he staggered and could not walk in a straight line. His speech was slurred. His eyes were “glazed, drowsy and half-shut.”
[70] Mr. Bryan subsequently attended this location, noticed the driver, and had concerns about his behaviour. His testimony was not meaningfully challenged, and I accept it. He testified in a very straightforward manner. After the driver left the scene, he and his crew located the driver and the exact vehicle only a short time later in the immediate vicinity.
[71] Officers Niezen and Cabral located Mr. Kefle in the presence of the fire crew and began questioning him around 7:48 a.m. He matched the description of the male driver provided by both witnesses, even if there may have been some disagreement over the driver’s height. The body-worn camera footage of both officers captured Mr. Kefle’s appearance, demeanour and clothing.
[72] I am satisfied beyond a reasonable doubt that Mr. Kefle was the motor vehicle driver that Mr. Noseworthy and Mr. Bryan witnessed during their first encounter at Springdale Boulevard and Coxwell Avenue. Indeed, Mr McCartney very reasonably did not attempt to argue otherwise during closing submissions.
[73] Officer Cabral smelled alcohol on Mr. Kefle’s breath. He was an experienced officer who was sure of this observation. I accept his testimony on this critical point. While PC Niezen was somewhat ambivalent about when he smelled alcohol on Mr. Kefle’s person, I accept his testimony that he did notice this shortly after Mr. Kefle’s arrest.
[74] In R. v. Edwards, 2024 ONCA 135, the trial judge convicted the appellant of impaired driving. The circumstances surrounding how the police located the driver were fundamental to this decision. The trial judge noted that the appellant was asleep in a running vehicle, in a live lane of traffic, and remained asleep even when officers knocked on his window. Officers immediately noticed a strong odour of alcohol when interacting with the driver; his eyes were glassy, and his words were slurred. This evidence, in totality, amounted to a “level of obliviousness to one’s circumstances consistent with a highly impaired state of judgment”: see paras. 7-9, and 54.
[75] The Court of Appeal upheld the conviction. The Court noted that describing a motorist in these circumstances as “asleep” does not necessarily offer an “innocent inference”: see paras. 55-6. As stated by the Court of Appeal:
A “reasonable innocent inference” would have to offer some “innocent” explanation for the respondent’s decision to stop his car in a live lane of traffic on an off-ramp from Highway 401, leave it running, put it in neutral, and go to sleep behind the wheel. Fatigue alone offers no “innocent inference” for such dangerous decision-making.
[76] I also do not find that fatigue alone explains Mr. Kefle’s behaviour. There is no reasonable conclusion to draw other than that Mr. Kefle’s lack of judgment is explained, at least in part, by his prior consumption of alcohol. I am satisfied the Crown has proven beyond a reasonable doubt that Mr. Kefle was still under the influence of alcohol when Mr. Noseworthy located him. I find, as a fact, that he fell asleep while driving his motor vehicle in a live lane of traffic on Coxwell Avenue, could not park it safely, and it only remained in place because his foot remained on the brake. His ability to operate his motor vehicle was impaired by alcohol.
[77] I find him guilty of count 1.
Released: November 18, 2024 Signed: Justice Brock Jones
Notes
[1] Mr. Noseworthy, a former qualified breath-technician, provided a lay-opinion that the driver seemed to be impaired. While a lay opinion regarding a person’s state of sobriety may be admissible, the Crown did not ask me to consider this evidence as proof of Mr. Kefle’s impairment, and I place no weight on it accordingly.
[2] Mr. Kefle was informed by the booking sergeant at 55 Division he would be entitled to reasonable use of the telephone.