Court File and Parties

COURT FILE NO.: 757

DATE: 2013-04-10

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Siegmar Schmidt

BEFORE: Heeney J.

COUNSEL: Fraser Kelly, Counsel, for the Crown (Respondent) James Zegers, Counsel, for the Accused (Appellant)

HEARD: April 5, 2013 at London

Endorsement

[1] This is an appeal of the conviction of the Appellant, entered on January 4, 2012 by Justice Schnall in the Ontario Court of Justice, for the offences of having care and control of a motor vehicle while impaired, contrary to s. 253(1)(a) of the Criminal Code, and of failing to comply with a demand for a breath sample, contrary to s. 254(5).

[2] Mr. Zegers, for the Appellant, does not allege that the trial judge made any palpable and overriding error in her findings of fact. 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 arrest of the Appellant would have been unlawful, as would the breath demand. This would have entitled the Appellant to refuse to provide a breath sample, and would have constituted a breach of the s. 8 Charter rights of the Appellant, which arguably would have led to the exclusion of evidence of impairment that was obtained following his arrest.

[3] On the other hand, if the trial judge was not in error in concluding that reasonable grounds existed to support the breath demand, it is conceded that the appeal must fail, but for one additional issue that I will consider later.

[4] Mr. Zegers takes no issue with the finding that the investigating officer had an honestly held, subjective belief that the Appellant was committing an offence under s. 253. The sole question is whether that subjective belief was objectively reasonable.

[5] 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 3375 (ON CA), 12 O.R. (3d) 90 (C.A.), aff'd 1994 94 (SCC), [1994] 2 S.C.R. 478.

[6] At para. 18 he defined 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.

[7] A trial judge makes the assessment as to the objective reasonableness of the officer’s belief based upon those facts known by or available to the officer at the time she formed her belief. This is made clear by Hill J. in R. v. Censoni, [2001] O.J. No. 5189 (S.C.J.) at para. 35:

In reviewing the objective component of reasonable grounds, the question is whether the officer's opinion was supported by objective facts: Regina v. Berlinski, 2001 24171 (ON CA), [2001] O.J. No. 377 (C.A.) at para. 3 per curiam. The existence of a "constellation of objectively discernible facts", spoken of by Doherty J.A. in Regina v. Simpson (1993), 1993 3379 (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.) at 501 in discussing "articulable cause", is also a necessary feature of reasonable grounds: Regina v. Hall, supra at 74-75. In Storrey v. The Queen, supra at 324, Cory J. spoke of a reasonable person standing in the shoes of the police officer believing reasonable and probable grounds existed. This was the approach followed in Regina v. Hall, supra at 77 and to this end, in Regina v. Oduneye (1995), 1995 ABCA 295, 15 M.V.R. (3d) 161 (Alta. C.A.) at 168-9, the court accepted the existence of objective reasonable grounds must be based on facts known by or available to the peace officer at the time he or she formed the belief.

[8] The trial judge in the case at bar cited Censoni in her reasons for judgment, as she began her analysis as to whether the investigating officer had objectively reasonable grounds to make the arrest and the demand. She correctly described the court’s task at pg. 61 of the transcript:

One does not look at one individual factor and weigh that as against impairment or not impairment. The court must consider the cumulative effect of the constellation of all the factors to determine if the officer’s subjective belief is objectively supportable on the facts.

[9] The trial judge relied upon the following facts in concluding that the officer’s subjective belief was reasonable in the circumstances:

• The officer got a dispatch call of a male in a driver’s seat asleep or drunk;
• It was 3 o’clock in the morning when most people would not find themselves sleeping in their running car in the parking lot;
• The Appellant was found, either asleep or passed out, in the driver’s seat;
• The officer smelled the odour of alcohol when the door was opened;
• Beside the driver on the passenger’s seat was a bottle of Vodka, with one-quarter of it gone;
• The Appellant fumbled with his wallet when asked for his driver’s license;
• Instead of producing his driver’s license, he produced a German identity card, without explanation;
• He stumbled as he got out of the car;
• His eyes were red and glossy;
• He made a nonsensical comment when he saw the police and said “Are you here to arrest the hotel because they won’t give me a room when I have a reservation?”. The trial judge found this to be an absurd comment that reflected on the degree of his sobriety.

[10] There were additional factors, not mentioned by the trial judge in this part of her reasons, that were also known by the investigating officer and which could also support her subjective belief that the Appellant was impaired:

• The Appellant was slurring his words;
• The odour of alcohol was “very strong”;
• The Appellant had left his glasses on as he slept, which is consistent with him unexpectedly having fallen asleep, or having “passed out”, as opposed to making an intentional decision to go to sleep;
• The lights to the car were left on, which is again inconsistent with an intentional decision to park the car and go to sleep;
• When the Appellant handed over his German identity card, rather than the driver’s license he had been asked for, he continued to insist that it was a driver’s license, which is evidence of confusion that is consistent with impairment;
• As he stumbled when he walked from the car, he leaned up against the car in an apparent attempt to keep himself upright.

[11] Mr. Zegers, in argument, isolated each factor on its own, and pointed to explanations other than impairment that might account for the behaviour in question. For example, he suggested that the Appellant’s eyes might be red and glossy because it was 3 a.m. and he was tired, as opposed to being impaired. He might have fumbled with his wallet because he was nervous at having been stopped by the police, as opposed to displaying a difficulty with manual dexterity.

[12] However, it is not appropriate to analyze each factor individually to determine whether it supports a reasonable belief that the Appellant is impaired. Each of these factors is a piece of circumstantial evidence, which individually may well lead to inferences other than one of impairment. However, when they are looked at collectively, if all or most of the facts support an inference of impairment, then impairment can be said to be an objectively reasonable inference.

[13] That is the case here. Impairment is the common denominator that is consistent with all of the facts known or available to the investigating officer. I agree with the trial judge’s conclusion that the officer’s subjective belief that the Appellant was, to some degree at least, impaired, was objectively supportable on the facts.

[14] There is, therefore, no merit to this ground of appeal.

[15] There was another ground of appeal that was argued. During cross-examination, it was put to the officer that the Appellant’s unsteadiness on his feet, the odour of an alcoholic beverage coming from his mouth, and the fact that his eyes were red and glossy were “essentially” the grounds she formed to arrest the Appellant.

[16] On re-examination, the Crown was permitted to elicit further grounds upon which she based the arrest, which were that she observed the bottle of liquor on the passenger’s seat, which appeared to have been partially consumed; that the Appellant fumbled with his wallet; that he asked her very “different” questions when she started talking to him; and that he was laying down, sleeping, in his vehicle when she found him.

[17] Mr. Zegers, who was trial counsel as well, objected to this line of questioning. However, it was upheld on the basis that the list of grounds posed during cross-examination was incomplete, and the re-examination was necessary to complete the list.

[18] A trial judge is allowed a wide discretion as to when to permit re-examination, which is entitled to considerable deference. The list of grounds summarized in cross-examination were characterized by defence counsel as “essentially” the grounds she had in mind when making the arrest. The use of that word suggests that the list represents some, but not all of the grounds. The Crown was entitled to pursue that to ensure that the list was complete.

[19] There was, in any event, no prejudice to the Appellant in permitting these questions to be asked. The questions did not bring out any new evidence, since each of those factual points had been elicited earlier from the same witness. Furthermore, the Appellant, in his own testimony, confirmed the accuracy of those facts, except that he denied asking the peculiar question about arresting the hotel.

[20] Had defence counsel been of the view that new facts had been elicited in re-examination, he could have asked for leave to conduct further cross-examination on those points. He did not. This reaffirms the conclusion that the Appellant suffered no prejudice by reason of the re-examination.

[21] The appeal is, therefore, dismissed.

“Heeney R.S.J.”

Regional Senior Justice T. A. Heeney

Date: April 10, 2013