ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: DR(P) 177/13
DATE: 2013 03 22

B E T W E E N:

HER MAJESTY THE QUEEN

B. Moodie, for the Respondent

Respondent

• and -

ADELMO MARTINEZ

E. Willschick, for the Applicant

Applicant

HEARD: March 22, 2013

ENDORSEMENT

Hill J.

INTRODUCTION

1The applicant is charged with impaired operation of a motor vehicle, driving “over 80” and driving while disqualified from doing so.

2At a Criminal Code section 515 Show Cause Hearing, Mr. Martinez was denied bail on March 8, 2013 on the secondary grounds (section 515(10(b)) that there existed a substantial likelihood that, if released, he would commit further criminal offences.

3In this application, Mr. Martinez does not submit that the Reasons of the Justice of the Peace presiding at the show cause hearing reflect any error of law or principle. What is argued is that there has been a material change in circumstances in terms of the release plan advanced before this Court.

THE ALLEGATIONS

4On Thursday, March 7, 2013, a 911 call was received by the police from a civilian motorist who had made observations of the applicant’s vehicle as it travelled westbound on Highway #401 from Toronto into Mississauga.

5The civilian informant observed Mr. Martinez’s vehicle swerving outside his lane of traffic on at least twenty occasions. The applicant, it is further alleged, nearly struck the guardrail. Several other vehicles were required to take protective action to avoid being hit.

6With the 1:50 p.m. 911 call information including the licence plate number for the applicant’s vehicle, police cruisers were dispatched to locate the car. Police officers observed Mr. Martinez’s vehicle swerving and to nearly strike a tractor trailer at one point. At a different point, Mr. Martinez nearly side-swiped a parked police vehicle.

7Once the police stopped the applicant’s vehicle, a pickup truck registered in his wife’s name, a very strong odour of alcohol was detected on his breath. His speech was slurred and he admitted consuming alcohol earlier that day. Asked to exit his vehicle, Mr. Martinez was observed to be unsteady on his feet.

8At 2:00 p.m., the applicant was arrested and transported to a police facility for intoxylzer breath testing. Prior to the test, the applicant stated, “I know it’s going to be high”. The breath test results were, respectively, 324 and 334 milligrams of alcohol per 100 millilitres of blood.

THE APPLICANT’S BACKGROUND

9Mr. Martinez was born on July 30, 1976. He is 37 years of age. He is the father of four daughters.

10The applicant’s prior criminal records is:

August 8 2001 • refuse breath sample $700 fine

July 5, 2011 • impaired operation of $2000 fine

a motor vehicle 18 months’ probation

3-year driving prohibition

11Since February 6, 2010, the applicant has been on release in Toronto on a promise to appear on charges of operating a motor vehicle with a blood alcohol level exceeding 80 milligrams of alcohol in 100 millilitres of blood and a charge of failing to stop at the scene of an accident.

THE SHOW CAUSE HEARING

12The hearing was a reverse onus proceeding pursuant to section 515(6)(a)(i) of the Code as Mr. Martinez had the outstanding Toronto charges when arrested in the Region of Peel.

13Before the Justice of the Peace, the applicant advanced his spouse, Melesia Rosales, as a prospective surety. In her testimony, Ms. Rosales stated that the applicant’s mother, who was not working and resided with them, was prepared to assist with any release order.

14Ms. Rosales testified that she was employed on a full-time basis during the week and on Saturday on occasion. The witness informed the court that the applicant worked in construction during the week and some weekends.

15On Ms. Rosales’ evidence, she usually drove her husband to work although, on occasion, he would have a friend do so. The witness was asked why her husband was not driving himself:

Q. Did you ever wonder why it was that your husband had not been driving for the past few years?

A. Well, you know, the thing is I just didn’t realize about that because in the past he had been using the truck from work and then they changed the driver and I didn’t really pay attention to that.

16Ms. Rosales testified at the show cause hearing that she was unaware that the applicant was driving her truck on March 7, 2013. The family has two vehicles both registered in her name. The applicant is not insured to drive either vehicle.

17While Ms. Rosales was aware that her husband had attended court in the past, she never asked him why and she professed to have no knowledge that he had a criminal record. The witness gave this evidence:

Q. Why was it before you weren’t interested why he was coming to court?

A. He’s, he’s told me that he was dealing with a problem that he was facing, but I didn’t really pay that much attention, he has told me that information.

18Ms. Rosales did not know that the applicant was subject to a three-year driving prohibition. She was unaware of the outstanding charges in Toronto.

On Ms. Rosales’ evidence, she had not previously had any “deep discussion” with the applicant about treatment for alcoholism although she is of the view that he has a problem with alcohol.

19The Justice of the Peace concluded on the basis of the totality of the evidence that:

(1) the applicant’s driving risked death to others

(2) the applicant breached a court’s driving prohibition order

(3) the criminal driving record is instructive in predicting his further behaviour

(4) because of Mr. Martinez’s unaddressed alcohol problem, the public is not safe

(5) the “court is not satisfied that [the applicant] would not drink and drive again” – “there’s a high probability … when he drinks he’ll likely drive”.

20The court also expressed concern regarding Ms. Rosales’ lack of knowledge about the applicant’s involvement over time before the courts. Further, the court expressed its suspicions regarding the credibility of that witness’ responses as to the real reason she was driving her husband. The court considered the plan of supervision inadequate to overcome the public safety concerns.

THE CURRENT APPLICATION

21The applicant filed an affidavit pledging that he would abide by a release order of house arrest except for employment, court attendance and substance abuse counselling. Beyond that, the affidavit says nothing about the existence or recognition of an alcohol problem.

22The applicant’s wife is again advanced as a prospective surety. In her affidavit, she states that the truck impounded by the police will be sold and that the applicant will not find himself at home with access to a vehicle. Ms. Rosales states that she has made inquiries about an alcohol counselling program in Brampton.

23The affidavit of the applicant’s mother presents that she is also prepared to act as a surety. She resides with the applicant’s family and is home throughout the day. She knows that her son “has issues with alcohol”.

24The applicant’s cousin, Rigoberto Peraza, is a foreman of the construction company which employed the applicant. The prospective surety states that he can supervise the applicant all day at work. He is “aware that [the applicant] has issues with alcohol”.

25In total, the three prospective sureties are prepared to pledge $27,000.00.

POSITIONS OF THE PARTIES

26On behalf of the applicant, Mr. Willschick submitted that the new plan advanced on this detention review is materially different than that advanced at the show cause hearing. There are three sureties with around-the-clock supervisory coverage. The applicant would be driven to and from work and enrolled in counselling related to alcohol abuse. The plan is argued to be equal to neutralizing public safety concerns.

27Mr. Moodie submitted that there is no material change in circumstances. It was proposed at the show cause hearing that the applicant’s wife and very likely his mother would act as sureties. He was to return to work where Mr. Peraza was employed. There is no fundamentally new plan. In any event, the Justice of the Peace was correct as to the public safety concerns which the current proposed release plan cannot overcome.

ANALYSIS

28The applicant has not met the onus of demonstrating on a balance of probabilities that the detention order should be vacated. Put differently, Mr. Martinez has failed to show that were he to be released, it could no longer be said that he would again drink and drive.

29The “new” release plan, in my view, is not a material change in circumstances. Its substance is the plan proposed at the show cause hearing with few meaningful modifications.

30The applicant’s wife as one of the principal sureties remains unsatisfactory given the show cause hearing evidence and the reasonable conclusions of the Justice of the Peace regarding her testimony and lack of suitability as a surety.

31In the alternative and in any event, it is evident that Mr. Martinez constitutes a high risk to reoffend. His history eloquently establishes that he is a menace to public safety and incorrigible in terms of his apparent determination to drink and drive. With serious motor vehicle charges outstanding, and not even halfway through his driving prohibition term, it is alleged, on highly compelling evidence, that he consumed a significant quantity of alcohol and then endangered the lives of others by driving on a high-speed 400-series highway. It is a miracle, given his BAC level, that no one was killed or injured.

32The applicant has failed to voluntarily control his drinking despite being on notice for some time of its consequences. He was apparently undeterred by the 2011 driving prohibition order.

CONCLUSION

33The application is dismissed.

34Mr. Willschick said everything that could be said on behalf of the applicant on this record.

Hill J.