ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO. : SC 43/12
DATE : 20121210

B E T W E E N:

HER MAJESTY THE QUEEN - and - JOHN MCDOWELL

David A. Mitchell for the Crown, respondent
Peter Thorning for the accused, appellant

HEARD: October 10, 2012

[Reasons for Judgment on summary conviction appeal against the conviction of the accused, entered by Mr. Justice L.M. Budzinski of the Ontario Court of Justice on March 27, 2012, for the offence of driving a motor vehicle with a blood alcohol level over 80 mgs.]

Mr. Justice Kenneth L. Campbell:

I

Introduction

[ 1 ] The appellant, John McDowell, was tried by the Honourable Mr. Justice L.M. Budzinski of the Ontario Court of Justice on charges of impaired driving and driving with a blood alcohol level over 80 mgs. On October 8, 2010, the appellant was arrested for these offences, and the two breath samples he provided into the Intoxilyzer shortly thereafter revealed his blood-alcohol level to be 150 mgs.

[ 2 ] The trial took place on November 28, 2011 and February 7, 2012. The trial was a blended proceeding. The appellant sought to exclude the Intoxilyzer results of his breath samples on the basis that the police officer did not have the required reasonable and probable grounds to demand the samples, in violation of s. 8 of the Charter of Rights. The Crown contended that the evidence of the Intoxilyzer readings concerning the blood-alcohol level of the appellant’s breath samples were admissible, and clearly proved the guilt of the accused beyond a reasonable doubt in relation to the “over 80” charge. The Crown did not seek a conviction with respect to the “impaired driving” charge, on the basis that the evidence did not establish that offence beyond a reasonable doubt.

[ 3 ] Subsequently, on March 27, 2012, Budzinski J. delivered his Reasons for Judgment in this matter. The trial judge dismissed the appellant’s Charter application, concluding that the investigating police officer did have the necessary reasonable and probable grounds to arrest the appellant and make a demand for samples of his breath. The trial judge also concluded that the evidence satisfied him beyond a reasonable doubt that the appellant was guilty of driving his vehicle with a blood alcohol level “over 80 mgs.” At the request of the Crown, the charge of impaired driving was stayed. During closing argument, the Crown had indicated that, while the evidence demonstrated the officer had reasonable and probable grounds to believe the appellant’s ability to operate a motor vehicle was impaired by alcohol, the evidence was insufficient to prove the commission of the offence of impaired driving beyond a reasonable doubt. In the final result, the appellant was sentenced to the minimum fine of $1,000 and placed on probation for two years on terms that required him to obey all highway traffic laws and complete a “safety driving course.”

[ 4 ] On appeal, the primary argument advanced by the appellant is that the trial judge erred in concluding that there were reasonable and probable grounds justifying his arrest and the police demand for his breath samples.

II

The Evidence

A. The Testimony of Constable Jeffrey Kell

[ 5 ] Constable Jeffrey Kell of the Toronto Police Service is an experienced Traffic Services officer. He has worked on the Traffic Services Unit for a number of years, has arrested approximately 100 individuals for “drinking and driving” offences, and is trained and qualified breath technician who has administered approximately 350 breath testing sequences to subjects.

[ 6 ] At approximately 10:04 p.m. on the evening of October 8, 2010, Constable Kell observed the appellant travelling westbound on the Gardiner Expressway near the “bullnose” split to the Queen Elizabeth Way and Highway 427, at a high rate of speed. More particularly, the appellant was detected, on the mobile tracking radar unit in the police car, traveling at 138 km/hr. As this was a posted 100 km/hr zone, the appellant was traveling at 38 km/hr over the posted speed limit.

[ 7 ] Constable Kell caught up to the appellant and followed him. He observed the appellant take the ramp onto Highway 427 in the right hand lane without signaling, braking, or appearing to slow down. He was passing the traffic which was moving in the left-hand “fast” lane at a “fair pace.” At that point Constable Kell thought that the appellant might be “something more than just a speeder” as this was a dangerous manoeuver. As Constable Kell explained, the ramp could be safely and properly negotiated at the posted speed limit, but when travelling at 138 km/hr, the appellant should have been “slowing down,” as to take that ramp at such a “high rate of speed” puts the driver in a “dangerous position.”

[ 8 ] Once they were both off the ramp and heading northbound on Highway 427, Constable Kell activated his lights and pulled over the appellant. When he activated his vehicle lights, this automatically activated the camera system in the police car. This camera system faces out the front windshield and is designed to capture what the driver of the vehicle is seeing out the front windshield. The system is also designed to record, through a microphone attached to the officer, interactions between the officer and any citizens who may be stopped. When Constable Kell activated his vehicle lights, the appellant quickly pulled over onto the right shoulder of the highway.

[ 9 ] Constable Kell approached the appellant’s vehicle on the passenger side. When the appellant lowered the passenger side window, Constable Kell asked the appellant to produce his license, ownership, and insurance. The appellant had some difficulty finding and producing these documents. The officer suggested the appellant turn on the interior light of the vehicle. While Constable Kell initially described the appellant as “fumbling” his documents, he later corrected himself and apologized, indicating that the appellant did not mishandle his documents, but rather was only somewhat slow in retrieving and producing the requested documents.

[ 10 ] During their roadside conversation, Constable Kell could clearly smell the odour of an alcoholic beverage on the appellant’s breath. There were no other occupants in the vehicle, and the officer could tell that the odour of alcohol was coming from the appellant’s mouth. According to the officer, while the appellant had a piece of candy or gum in his mouth, this did not mask the “strong odour” of alcohol on the appellant’s breath. The fact that the appellant had a piece of candy or gum in his mouth also made Constable Kell consider whether the appellant might have been trying to disguise the smell of alcohol on his breath.

[ 11 ] Early in their conversation, as the officer tried to speak to the appellant through the passenger window, Constable Kelll asked the appellant to raise his driver’s side window so that they could converse more easily. At that point, the appellant pressed the button that raised the passenger side window that Constable Kell was leaning into. The appellant caught this mistake and then raised his driver’s side window as requested. However, as Constable Kell explained, this “fumbling” with the window controls and “confusion” as to the workings of his vehicle, was a consideration that the officer took into account in leading him “down the path” to forming “reasonable grounds.”

[ 12 ] The officer also testified that the appellant’s speech was “slurred to a degree,” although just slightly, and his responses to questions seemed slow. Constable Kell also noticed that, when he asked the appellant to turn on the interior lights of his vehicle, the appellant’s eyes appeared bloodshot and glassy. When Constable Kell asked the appellant when he consumed his last drink, the appellant told him that it was “about an hour ago.”

[ 13 ] Shortly thereafter, at approximately 10:10 p.m., Constable Kell advised the appellant that he had reasonable grounds to believe that his ability to operate a motor vehicle was impaired by alcohol, and that the appellant was therefore being arrested for that offence. The officer then advised the appellant of his right to counsel, and made a demand for breath samples.

[ 14 ] The audiotape recording of the exchange between the officer and the appellant showed that, just before the arrest, and upon hearing the appellant admit that he had taken his last drink approximately an hour earlier, Constable Kell stated:

You’ve had too much to drink. I can tell looking at your eyes. I can smell the booze off your breath. Your eyes are all glassy and bloodshot. I asked you to do up your window and you do up mine. You’re slurring. You’ve got the candy jammed in your mouth trying to hide the booze smell. And you’re at 138 kilometers an hour accelerating towards a ramp to a highway that you should be slowing down for. So, you have a history of speeding sir. But, I have reasonable grounds to believe that your ability to operate a motor vehicle is impaired by alcohol at this point in time.

[ 15 ] In cross-examination Constable Kell agreed that, in the area he was patrolling, people often travelled in excess of the posted speed limit. Accordingly, he was looking for vehicles that “stand out” by travelling at a speed much greater than the regular flow of traffic. He testified that the appellant had “distinguished himself” and “set himself apart from most cars” by travelling at 138 km/hr. The officer agreed, however, that he did not have difficulty finding people travelling at those kinds of speeds.

[ 16 ] In cross-examination, Constable Kell also agreed that, prior to speaking with the appellant, he had accessed the police computer system and had seen the appellant’s driving history over the previous three years. This computer record showed that the appellant had a history of speeding. More particularly, it showed that the appellant was convicted of various speeding offences on the following dates: (1) in August of 2010, he was convicted of speeding 30 km/hr over the limit; (2) in June of 2010, he was convicted of speeding 29 km/hr over the limit; (3) in September of 2009, he was convicted of speeding 10 km/hr over the limit; and (4) in June of 2007, he was convicted of speeding 10 km/hr over the limit. Constable Kell agreed that, he had no idea how fast the appellant had actually been travelling in each instance, as it was possible that the appellant might have pled guilty to “some reduced number.” The officer admitted that, at one point in his interaction with the appellant, he told the appellant that he had a “history of speeding.”

B. The Testimony of the Appellant – John McDowell

[ 17 ] At trial, the Appellant, John McDowell, was 46 years of age. He worked selling advertising, and had no criminal record. He testified as to the circumstances surrounding his arrest on the evening of October 8, 2010. The appellant agreed with much of the testimony of Constable Kell. More particularly:

• The appellant agreed that his eyes were glassy and bloodshot. The appellant explained, however, that he gets up at 4:30 a.m. every day, wears hard contact lenses each day, and that after 14 hours of wearing his contact lenses, his eyes get bloodshot, tired, and sore.

• The appellant admitted consuming alcohol that evening and telling the officer that he had consumed his last drink one hour earlier. The appellant elaborated that he had spent the evening with friends at a downtown bar and, between approximately 5:30 p.m. and 9:45 p.m., he had consumed four pints of beer. The appellant denied feeling any effects at all from this alcohol consumption. However, the appellant had no explanation as to why his breath samples revealed a blood alcohol content of .150 mgs.

• The appellant said that his driving that night was “normal.” He explained that he has been driving for 30 years, and spends three or four hours a day in his car. Accordingly, he is an “expert” and experienced driver. He agreed that he had been travelling 138 km/hr, but testified that he had slowed down to probably 110 km/hr on the ramp. He agreed that he did not employ his brakes, but just permitted the car to slow naturally, although he was still passing cars that were travelling in the fast lane and exceeding the speed limit for the ramp. The appellant candidly agreed that driving nearly 40 km/hr over the posted speed limit was unsafe, illegal, irresponsible, and displayed an exercise of poor judgment.

• The appellant admitted his mistake in hitting the wrong button when asked to close his driver’s window, and accidentally starting to close the passenger’s window where the officer was speaking to him. He explained that the buttons were very close together.

• The appellant admitted that he was chewing Excel gum when the police officer pulled him over on the highway. He explained that he chewed gum all the time. The appellant admitted, however, that he was concerned that Constable Kell would smell the alcohol on his breath.

[ 18 ] The appellant disagreed with officer’s testimony on two points. First, the appellant disagreed with Constable Kell that he was slow in providing his documentation to the officer. He recalled that he produced his driver’s license from his wallet “right away.” He estimated that it may have taken him seven or eight seconds. He explained that it took him longer to produce his ownership and insurance documents as it was dark and they were located in the glove box of his vehicle, which was cluttered with other papers. Initially, he estimated that it might have taken him between 20-30 seconds to produce these other documents, but when he watched the police video he suggested that it was “maybe ten seconds.” He denied fumbling for the documents. Second, the appellant denied that he was slurring his words even slightly that night. The appellant explained that he naturally just speaks “very softly.”

C. The Testimony of Sergeant Gallant

[ 19 ] Sergeant Tim Gallant of the Toronto Police Service was called as a witness by defence counsel. The appellant is probably his best friend. Sergeant Gallant testified that, on the evening of October 8, 2010, he met the appellant and some other friends at a downtown Toronto bar. He testified that the appellant arrived at the bar at approximately 6:00 p.m. and left between 9:15 and 9:30 p.m. Sergeant Gallant testified that, during his stay at the bar, the appellant consumed four pints of beer. As far as the officer was concerned, he saw no signs of impairment on the part of the appellant, who appeared “totally sober.”

III

The Decision of the Trial Judge

[ 20 ] In his Reasons for Judgment, the trial judge accepted the testimony of Constable Kell. Indeed, Budzinski J. stated that he had “no doubt as to the officer’s belief and integrity.”

[ 21 ] The trial judge also concluded that, taking into account all of the circumstances of this case, he was satisfied that Constable Kell had the necessary reasonable and probable grounds to make the breath samples demand to the appellant.

[ 22 ] In reaching this conclusion, Budzinski J. expressly considered: (1) the appellant’s admission to drinking earlier in the evening and having his last drink just an hour earlier; (2) the odour of alcohol on the appellant’s breath; (3) the duration and extent of the appellant’s speeding, both on the Gardiner Expressway and on the ramp to Highway 427, where he “distinguished himself” from the other drivers by speeding well “beyond the norm;” (4) the appellant’s red and glassy eyes and slurred speech, which the trial judge viewed as “weak indicators” of alcohol impairment; and (5) mention by the police officer that the appellant had fumbled for papers and had showed some confusion regarding the window buttons, which the officer admitted were only minor deviations, and which the trial judge found to be “insignificant in the totality of events.”

[ 23 ] The trial judge noted that the police officer was obliged to consider all of the information available to him in determining whether or not there were reasonable and probable grounds to believe that the appellant’s ability to operate a motor vehicle was impaired by alcohol, including the aspects of the case that would tend to “exonerate” the appellant.

[ 24 ] In this regard, the trial judge noted: (1) that the appellant pulled his vehicle over onto the shoulder of the road as soon as the officer activated his lights; (2) that the appellant had a long driving record that suggested he was a chronic fast driver; (3) that the officer had agreed that there were many drivers who speed; and (4) that the police officer friend of the appellant testified that, when he saw the appellant, he observed no indicia of impairment.

[ 25 ] In concluding that Constable Kell had reasonable and probable grounds to demand samples of the appellant’s breath, Budzinski J. noted that the items of real relevance were the appellant’s driving and speed, the odour of alcohol on his breath, and his bloodshot eyes. The trial judge commented that the difference in the perspective of the parties related to their perceived value of these pieces of evidence. Of these particularly relevant items, the trial judge emphasized the duration and extent of the unlawful driving by the appellant and how the appellant’s driving was such a “departure” from the normal traffic pattern. He noted that it was not just the sheer speed of the appellant’s vehicle, but its “departure from the [normal] traffic pattern” of the other vehicles. More particularly, in drawing his final conclusion, Budzinski J. stated:

I find that the speeding and driving here is sufficiently extreme especially in conjuncture with the ramp that it represents a marked departure or erratic driving coupled with the admission of alcohol consumption, the odour and the [supportive] evidence regarding the eyes to raise reasonable and probable grounds for impairment and gave effect to the demand for the breath sample.

[ 26 ] In light of his conclusion that there was no violation of s. 8 of the Charter, the trial judge found it unnecessary to consider the admissibility of the evidence under s. 24(2) of the Charter. Once the evidence of the Intoxilyzer results was admitted, the appellant was convicted of the “over 80” charge. The impaired driving charge was stayed, at the request of the Crown.

IV

The Governing Standard of Appellate Review

[ 27 ] Whether there are the necessary reasonable and probable grounds in any given case is largely a fact-based exercise that is dependent on all the circumstances of the individual case. Moreover, in drawing any conclusion in relation to the issue, the totality of the circumstances must be taken into account. Accordingly, on any appeal challenging the conclusion reached by the trial judge, the appellate court must approach a trial judge’s findings of fact with deference. Beyond that, however, when appellate courts are called on to review a trial judge’s conclusion as to whether or not a police officer objectively had the necessary reasonable and probable grounds to effect an arrest or make a breath demand, that decision is reviewable on a standard of correctness, as it is effectively a conclusion on a question of law. See: R. v. Wang (2010), 2010 ONCA 435, 256 C.C.C. (3d) 225 (Ont.C.A.) at para. 18; R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20; R. v. Rhyason, 2007 SCC 39, [2007] 3 S.C.R. 108; R. v. Elvikis, [1997] O.J. No. 234 (C.J.) at para. 26; R. v. Censoni, [2001] O.J. No. 5189 (S.C.J.) at para. 47; R. v. Bush (2010), 2010 ONCA 554, 101 O.R. (3d) 641 (C.A.) at para. 48, 54; R. v. Usher (2011), 13 M.V.R. (6th) 195 (B.C.C.A.) at para. 25-33; R. v. Gunn, 2012 SKCA 80, [2012] S.J. No. 503 (C.A.) at para. 7-10; R. v. Suntharalingam, 2012 ONSC 6207, at para. 19.

V

Reasonable and Probable Grounds

A. Introduction

[ 28 ] The appellant argues that the trial judge erred in concluding that there were reasonable and probable grounds justifying the police demand for his breath samples. I disagree. In my view, the evidence before the trial judge supports his conclusion that Constable Kell had he necessary reasonable and probable grounds to make the demand.

B. The Legal Standard – Reasonable and Probable Grounds

[ 29 ] To establish the “reasonable and probable grounds” necessary to justify the arrest of an accused or the demand for breath samples, a police officer must have subjectively had an “honest belief” which was objectively based on reasonable and probable grounds. There is no question that Constable Kell subjectively thought that he had the necessary reasonable and probable grounds. He clearly testified as to his personal belief in this regard and the trial judge accepted his evidence. Accordingly, the s. 8 Charter issue in the present case turns on the question of whether, on the basis of the record before the court, a reasonable person placed in the circumstances of Constable Kell could conclude that there were reasonable and probable grounds to believe that the appellant’s ability to operate a motor vehicle was impaired by alcohol on the evening in question. See: R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, at p. 250; R. v. Bernshaw, 1995 150 (SCC), [1995] 1 S.C.R. 254, at para. 51; R. v. Shepherd, at para. 17; R. v. Berlinski, 2001 24171 (ON CA), [2001] O.J. No. 377 (C.A.) at para. 3. Moreover, in answering this critical inquiry, all relevant information known to the police officer must be considered, including information that might exonerate the accused as well as information that might incriminate the accused. See: R. v. Cooper, [1993] O.J. No. 501 (C.J.); Chartier v. Quebec (Attorney General), 1979 17 (SCC), [1979] 2 S.C.R. 474.

[ 30 ] In R. v. Bush, Durno J., in delivering the unanimous decision of the Court of Appeal, summarized the proper approach to be taken in assessing the question of whether the necessary reasonable and probable grounds exist in this type of “drinking and driving” context. In R. v. Suntharalingam, at para. 21, I summarized six of his key conclusions as follows:

(1) The standard of reasonable and probable grounds lies somewhere between “reasonable suspicion” and “proof beyond a reasonable doubt.” Accordingly, the requirement of reasonable and probable grounds does not require proof beyond a reasonable doubt or even the establishment of a prima facie case. See: R. v. Bush, at para. 36-37. See also: R. v. Censoni, at para. 30-31; R. v. Shepherd, at para. 23; R v. Baron (1993), 1993 154 (SCC), 78 C.C.C. (3d) 510 (S.C.C.) at pp. 531-532.

(2) In the context of a demand for breath samples, the requirement of reasonable and probable grounds standard is “not an onerous test.” It must not be “inflated to the context of testing trial evidence,” but neither must it be “so diluted as to threaten individual freedom.” See: R. v. Bush, at para. 46. See also: R. v. Wang, at para. 17; R. v. Censoni, at para. 43.

(3) There is no necessity that the accused be in a state of “extreme intoxication” before a police officer will have reasonable and probable grounds to effect an arrest. Indeed, impairment may be established where the Crown proves “any degree of impairment from slight to great.” Slight impairment to drive a motor vehicle relates to a reduced ability to perform a complex motor function, whether impacting upon perception or field of vision, reaction or response time, judgment, and regard for the rules of the road. Accordingly, to justify an arrest or breath demand, the police officer need only have objectively based reasonable and probable grounds to believe that the accused’s ability to drive was “slightly impaired” by alcohol. See: R. v. Bush, at para. 47-48. See also: R. v. Stellato (1993), 1993 3375 (ON CA), 12 O.R. (3d) 90 (C.A.); Affirmed: 1994 94 (SCC), [1994] 2 S.C.R. 478; R. v. Deighan, [1999] O.J. No. 2413 (C.A.) at para. 1; R. v. Censoni, at para. 47; R. v. Wang, at para. 17.

(4) In assessing whether or not there are reasonable and probable grounds in any given case, trial judges are often improperly asked to engage in a “dissection” of the officer’s grounds by looking at each ground in isolation, and without appreciating that the opinions of the officer were developed at the scene “without the luxury of judicial reflection.” Yet it is “neither necessary nor desirable” to conduct an impaired driving trial as if it were a “threshold exercise in determining whether the officer’s belief was reasonable.” See: R. v. Bush, at para. 55. See also: R. v. McClelland ([1995), 1995 ABCA 199, 165 A.R. 332 (C.A.); R. v. Jacques, 1996 174 (SCC), [1996] 3 S.C.R. 312, at para. 23; R. v. Censoni, at para. 43.

(5) An assessment of whether the police officer objectively possessed reasonable and probable grounds does not involve the equivalent of an “impaired driver scorecard,” with a list of all the “usual indicia of impairment” and counsel conducting an inventory as to which indicia are present and which are absent as part of the essential assessment. Indeed, there is “no mathematical formula” whereby the police officer must have a certain minimum number of indicia of impairment before it can be said, as a matter of law, that the necessary reasonable and probable grounds are objectively present. The absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding that there are reasonable and probable grounds to believe the accused is impaired based upon all of the circumstances of the case. See: R. v. Bush, at para. 56. See also: R. v. Censoni, at para. 46; R. v. Costello (2002), 22 M.V.R. (4th) 165 (Ont. C.A.) at para. 2; R. v. Wang, at para. 21.

(6) A trained and seasoned police officer is entitled to draw inferences and make deductions drawing on his or her years of experience. A trial judge is entitled to take into consideration the experience and training of the police officer in assessing whether or not he or she objectively possessed the necessary reasonable and probable grounds. See: R. v. Bush, at para. 61. See also: R. v. Censoni, at para. 36-37.

C. Analysis of the Present Case

[ 31 ] In my opinion, the trial judge correctly concluded that Constable Kell had the necessary reasonable and probable grounds to arrest the appellant and demand samples of his breath. In reaching this conclusion, I rely upon all of the following considerations, viewed collectively and against the background of all of the other factual circumstances of this case:

• The Initial Speeding : When Constable Kell first observed the appellant travelling westbound on the Gardiner Expressway, the mobile tracking radar unit in the police car showed that the appellant was travelling at 138 km/hr in a posted 100 km/hr zone. Accordingly, at this point the appellant was travelling at 38 km/hr over the limit. According to Constable Kell, at this high rate of speed, the appellant “distinguished himself” and “set himself apart from most cars.” The fact that the appellant had been previously convicted of a number of speeding offences in recent years does not serve to effectively remove the appellant’s excessive speeding on this occasion from the totality of considerations that must be taken into account in the “reasonable and probable grounds” analysis. Indeed, the appellant himself admitted that driving at that excessive speed was unsafe, illegal, irresponsible, and an example of poor judgment.

• The Dangerous Speeding on the Ramp : As Constable Kell followed the appellant, he observed him take the ramp onto Highway 427 in the right hand lane without signaling, braking, or appearing to slow down. He was seen passing vehicles in the “fast” lane at a “fair pace.” Constable Kell, an experienced traffic services officer, thought that this manoeuver put the appellant in a “dangerous position,” and caused him to believe that the appellant might be “something more than just a speeder.” The fact that the appellant executed a dangerous ramp manoeuver at a rate of speed greater than the posted ramp speed limit is clearly a factor to be considered in the overall analysis of whether Constable Kell had the necessary reasonable and probable grounds.

• The Strong Odour of Alcohol on His Breath : During the course of their interaction at the roadside, Constable Kell could “clearly smell” the “strong odour” of an alcoholic beverage on the appellant’s breath. There were no other occupants in the vehicle, and the gum in the appellant’s mouth did not mask the odour. With this key evidence there was no gainsaying the reality that the appellant had been consuming alcohol that evening.

• The Appellant Admitted Drinking : During their road side exchange, the appellant admitted that he had been drinking earlier in the evening and told Constable Kell that he had consumed his last drink approximately one hour earlier.

• Fumbling With the Window Controls : Early in their road-side exchange, as Constable Kell spoke to appellant through the passenger window, he asked the appellant to raise his driver’s side window. The appellant then mistakenly pressed the button raising the passenger side window. As Constable Kell explained, this “fumbling” with the window controls and “confusion” as to the workings of his vehicle was one consideration in his conclusion that he had reasonable and probable grounds to believe that the appellant was impaired.

• Slightly Slurred Speech : Constable Kell testified that, in his exchanges with the appellant, it appeared that the appellant’s speech was “slurred to a degree,” although just slightly, and that his responses to questions seemed slow. If, indeed, the appellant was slurring his speech as Constable Kell testified, there is no neutral or innocuous explanation for this reality other than that the appellant was suffering the effects of alcohol impairment.

• His Eyes Were Bloodshot and Glossy : According to Constable Kell, when the appellant turned on the interior lights of his vehicle, he noticed that the appellant’s eyes appeared bloodshot and glassy. While there may be another explanation for the appellant’s bloodshot and glassy eyes, such an observation is one of the classic indicia or alcohol impairment.

• Experienced Police Officer – Totality of Circumstances : Constable Kell, an experienced traffic services officer, who has a wealth of experience in dealing with individuals involved in “drinking and driving” offences, and who is a trained and qualified breath technician, testified that he believed that, based on the totality of the observations he made in relation to the appellant, he had reasonable and probable grounds to place the appellant under arrest and demand samples of his breath.

VII

Conclusion

[ 61 ] In the result, the appeal must be dismissed. An order shall issue accordingly.

Kenneth L. Campbell J.

RELEASED: December 10, 2012

COURT FILE NO. : SC 43/12
DATE : 20121210

ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN - and - JOHN MCDOWELL

REASONS FOR JUDGMENT
Kenneth L. Campbell J.

Released: December 10, 2012