COURT FILE NO.: 743
DATE: 2012-09-21
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Alaa Taiel
BEFORE: Heeney J.
COUNSEL: J. Perfetto, Counsel, for the Crown (Respondent)
R. Sheppard, Counsel, for the Accused (Appellant)
HEARD: September 21, 2012
ENDORSEMENT
[1] This is an appeal of the conviction of the accused, entered on September 7, 2011 by Pockele J., for the offence of operating a motor vehicle while his blood alcohol content exceeded 80 mg. of alcohol in 100 mg. of blood, contrary to s. 253(1)(b) of the Criminal Code. The accused was found guilty of the offence of impaired driving arising out of the same circumstances, but a stay was entered due to the rule against multiple convictions.
[2] The sole issue on this appeal is whether the trial judge erred in concluding that reasonable grounds existed to support the breath demand under s. 254(3) of the Code. If it did not, the subsequent breathalizer tests, which generated readings of 152 mg. and 140 mg. respectively, would have amounted to a Charter breach, as an illegal search and seizure.
[3] Mr. Sheppard, for the accused, takes no issue with the finding that the officer had an honestly held, subjective belief that the accused was committing an offence under s. 253. The sole question is whether that subjective belief was objectively reasonable.
[4] The applicable test is set out in R. v. Wang, 2010 ONCA 435, [2010] O.J. No. 2490 (C.A.), where Rouleau J. A., speaking for the court, said the following, at para. 17:
In short, Shepherd explains that where a court is satisfied that the officer had the requisite subjective belief, the sole remaining issue is whether that belief was reasonable in the circumstances. The test is not an overly onerous one. A prima facie case need not be established. Rather, when impaired driving is an issue, what is required is simply that the facts as found by the trial judge be sufficient objectively to support the officer's subjective belief that the motorist was driving while his or her ability to do so was impaired, even to a slight degree, by alcohol: see R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 12 O.R. (3d) 90 (C.A.), aff'd 1994 CanLII 94 (SCC), [1994] 2 S.C.R. 478.
[5] He went on at para. 18 to define the standard of review in an appeal of this kind:
As Shepherd makes clear, where appellate courts are called upon to review the trial judge's conclusion on the issue whether the officer had reasonable and probable grounds, the appellate court must show deference to the trial judge's findings of fact, but the trial judge's ultimate ruling is a question of law reviewable on a standard of correctness.
[6] The facts relied upon by the trial judge to support his finding that the officer’s subjective belief was reasonable in the circumstances were as follows:
The accused committed an “egregious act of bad driving”, whereby he cut across an intersection from the southbound lanes in which he was travelling to the northbound lanes, just in front of the concrete median that separates the lanes, narrowly missing the oncoming police cruiser who was travelling northbound, and entered a gas station that was only legally accessible from the northbound lanes. He continued through the gas station without stopping, re-entered the roadway and continued eastbound;
This bad driving was wholly unnecessary since, had the accused wished to turn east, he could have done so at the traffic light controlling the intersection;
The accused continued to drive for 2 or 3 blocks, despite the fact that the police cruiser was behind him, with roof lights activated, which would be clearly visible given that it was just after 2 a.m. and traffic was very light. The officer gave a quick burst on his siren and still the accused did not pull over, so he had to pull up beside the accused and manually and verbally signal him to stop before the accused finally pulled over;
When the accused wound his window down, there was a strong smell of alcohol, described as “reeking” by the officer;
The accused had glassy eyes;
The accused, when asked if he had had anything to drink of an alcoholic nature, admitted to having had “a couple”;
The accused took two or three minutes to find his driver’s license.
[7] In my view, these facts are more than sufficient, at law, to objectively support the officer’s subjective belief that the accused was operating his motor vehicle while impaired, to some degree at least, by alcohol. It follows that the breath demand was validly given, and that no Charter breach occurred from the breathalizer test that followed.
[8] In view of my ruling in this regard, Mr. Sheppard indicated that it would not be necessary to deal with his appeal relating to the charge of impaired driving.
[9] The appeal is dismissed.
“T. A. Heeney J.”
Mr. Justice T. A. Heeney
Date: September 21, 2012