COURT FILE NO.: 35/12

DATE: 20130625

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Her Majesty The Queen v. Jose Melo

BEFORE: Mr. Justice K.L. Campbell

COUNSEL:
Rick Nathanson, for the Crown, respondent

Stephen Price, for the accused, appellant

HEARD: June 21, 2013

ENDORSEMENT

[Summary Conviction Appeal]

A. Overview

1The appellant, Jose Melo, was tried by the Honourable Madam Justice L. Pringle of the Ontario Court of Justice on charges of impaired driving and operating a motor vehicle with over 80 mgs. of alcohol per 100 mls. of blood in his system. The offences were alleged to have taken place in Toronto during the morning rush hour on October 12, 2010. The trial took place over a number of days and unfolded as a blended proceeding, with the parties leading their evidence simultaneously on the issues of liability and the alleged violations of the Charter of Rights. In the result, when the Intoxilyzer results of the appellant’s breath samples were excluded, the appellant was acquitted of the “over 80” charge. The appellant was, however, convicted of the impaired driving charge. The appellant now appeals against this impaired driving conviction, advancing essentially two grounds of appeal, namely: (1) that the verdict of guilty on the impaired driving charge was an unreasonable one; and (2) that the trial judge erred in failing to stay the proceedings as a result of the Charter violation that took place when the appellant was strip searched by the police before being placed in a jail cell after he had provided his breath samples.

B. The Background Facts

1. The Appellant’s Erratic Highway Driving

2The offences first came to light when a concerned citizen, Margherita Iacovone, on her way to work, observed the appellant’s white, half-ton truck “drastically swerving” on Highway 401, heading eastbound, in heavy traffic, around the intersection of Highway 427. He was almost hitting other cars, who were forced to quickly take evasive action to avoid collisions. She thought the appellant was either asleep or drunk, and she immediately called 911 to report her concerns. Thereafter, she followed the appellant for a distance of some 17 kms. As Ms. Iacovone continued to follow the appellant, she watched him “roaming” the lanes without signaling, abruptly speeding up and braking, and swerving.

2. The Road-Side Stops by the Police

3Eventually, after he turned northbound on Allen Road and then eastbound on Sheppard Avenue, the appellant was pulled over to the side of the road by the police – twice. These two road-side stops were made by Cst. Andrew Parkin of the Toronto Police Service (TPS), who recognized the licence plate of the appellant’s vehicle as the same licence plate number that had been broadcast over the police radio regarding his erratic driving along Highway 401.

4When the appellant was first stopped by the investigating officer, gas was “gushing” out of the bed of his truck. Cst. Parkin had the appellant turn off his ignition, and he quickly secured the top of the gas container that had fallen over and was spilling the gas. Due to the pool of gasoline that had formed on the roadway, and the overpowering smell of the gas that had collected, the officer summoned the fire department to try to safely neutralize this spillage. As this was happening, the appellant exited his truck and just stood staring at the gas can in the back of his truck. The appellant and the police officer had a brief conversation as they waited for the fire department by the back of the truck. The appellant explained that he was on his way to a landscaping job. While the appellant seemed to understand the officer, the appellant’s speech was slow. The officer also noticed that the appellant’s physical movements were slow.

5Cst. Parkin then had the appellant return to the cab of his truck and provide him with his driver’s licence, vehicle ownership and insurance documents. The appellant complied with this request. The officer then told the appellant to wait in his truck as he was going to issue him a ticket for driving with an insecure load in his truck. The appellant appeared to understand. Cst. Parkin agreed that, at that point in time, he did not have sufficient grounds to believe that the appellant was impaired by alcohol, and he communicated this opinion to the police dispatcher.

6After the officer had returned to his police cruiser, communicated with the dispatcher, and began to write the ticket, the appellant started his truck and drove away. Cst. Parkin was “quite surprised” by this. Only a short time had passed since he had spoken to the appellant, obtained his documentation, and told him to wait in his truck. As Cst. Parkin explained: “I’ve stopped thousands of vehicles and … I’ve never had anyone do that, give me all their information and then just drive away.”

7When Cst. Parkin managed to catch up to the appellant and motion him to pull over again, the appellant stopped in a nearby gas station parking lot. When the officer asked him what he was doing, the appellant tapped himself on the forehead and said: “I’m sorry, I forgot.” At that point, the officer could smell alcohol on the appellant’s breath. The appellant also admitted that he had consumed a couple of glasses of wine at around 1:00 a.m.

8At that point, the officer demanded that the appellant provide a breath sample into an approved screening device, and the appellant accompanied the officer back to his police cruiser to provide this sample. Cst. Parkin plugged the approved screening device into his car adaptor with a cord, and demonstrated to the appellant how to use the device. The officer then provided the appellant with a sealed mouthpiece, and asked him to unseal it and connect it to the device. The appellant appeared to understand these instructions.

9During this time, Cst. Parkin noticed that the appellant seemed a little unsteady on his feet, and was swaying back and forth, even though he was wearing good running shoes and was standing on flat pavement. The officer also noticed that the appellant’s eyes were “very glossy.”

10The appellant unwrapped the mouthpiece and connected it to the screening device, which he held in both hands. However, before he could provide a breath sample into the device, the appellant stumbled backwards. In so doing, he pulled the device’s cord out of the adaptor in the police vehicle. This required the officer to plug the cord back into the adaptor. However, by the time Cst. Parkin was able to re-connect the cord to the adaptor and turn back toward the appellant, the appellant had removed the mouthpiece from the device. Cst. Parkin then watched as the appellant blew into the mouthpiece he was holding in his right hand, while still holding the approved screening device in his left hand. After he finished blowing into the mouthpiece, the appellant examined the device, as if he were looking for a reading. The appellant was apparently oblivious to the fact that the mouthpiece into which he had been blowing was not connected to the device that would analyze his breath sample.

3. The Arrest

11At that point, the investigating officer formed the opinion that the appellant’s ability to operate a motor vehicle was impaired by alcohol. Cst. Parkin testified that he based that opinion on all the circumstances including: (1) the original 911 call from the civilian motorist who had called in reporting an impaired motorist; (2) the fact that the appellant had been driving along spilling gas out of the back of his truck; (3) the conduct of the appellant, which the officer perceived as “very lethargic,” with the appellant “speaking very slowly;” (4) the appellant’s glossy eyes; (5) how the appellant just stood staring at the gas can when he was standing at the back of his truck during the first stop; (6) the fact that the appellant just drove away without his vehicle documentation just after having been advised that he was going to be issued a ticket; (7) his admission of alcohol consumption, confirmed by the odour of alcohol smelled by the officer; (8) the appellant’s backward stumble at the police cruiser without any apparent cause; and (9) the appellant’s blowing into the disconnected mouthpiece and expecting his breath to be analyzed by the approved screening device.

12As a result of the formation of this opinion, Cst. Parkin placed the appellant under arrest and advised him of his right to counsel pursuant to s. 10(b) of the Charter of Rights. The appellant confirmed that he understood, and said that he wanted to call his lawyer. The officer then told the appellant that he would be charged with impaired driving and cautioned him about the making of any statements. Cst. Parkin then demanded that the appellant provide suitable samples of his breath for analysis.

4. The Breath Samples at the Police Station

13The appellant was taken to the 32 Division police station. After their arrival at the station, it took some time to contact duty counsel, but the appellant was eventually able to consult privately with a lawyer. While the appellant’s first language is Portuguese, a translator was not provided in order to permit the appellant to exercise his s. 10(b) Charter rights more fully and easily. However, the appellant conversed with the police in English, did not express any difficulty with the English language, and did not request an interpreter. At trial, however, the appellant testified that he did not understand “very much” or “very well” what defence counsel had said to him during their consultation.

14Ultimately, the appellant provided samples of his breath into an Intoxilyzer 8000C, an approved instrument, which revealed that at 11:51 a.m. and 12:18 p.m. respectively, the appellant had 240 and 250 mgs. of alcohol per 100 mls. of his blood. In short, these breath samples revealed that the appellant had three times the legal limit of alcohol in his blood stream.

5. The Strip Search

15Given the appellant’s state of intoxication, and out of concern for his safety and that of the public, it was determined that the appellant would be held in custody until he was sober. Before the appellant was placed into one of the cells in the station, however, Det.Sgt. Dianne Wood, the booking-parading sergeant at 32 Division that day, and the officer who determined that the appellant would be kept in custody until he “sobered-up,” ordered that the 67-year-old appellant be strip searched. He had earlier been given a “pat-down” search at the road-side when he was arrested by Cst. Parkin, and no weapons, contraband or other items of concern were discovered. Det.Sgt. Wood ordered the strip search nonetheless.

16In her evidence at trial, Det.Sgt. Wood testified that she was aware of the TPS policy that strip searches not be conducted without reasonable grounds to believe that such an intrusive search was necessary. When asked for her reasonable grounds justifying the strip search of the appellant, Det.Sgt. Wood explained that, as the 32 Division station is a “central lock-up” facility holding prisoners from a number of divisions, there were people coming and going from the cells regularly. Moreover, the physical layout of the cells in 32 Division was such that contraband and weapons could be passed between prisoners. Accordingly, it was her “personal policy” to “err on the side of safety” and caution and have such searches conducted as a matter of course whenever individuals were placed in the cells. As Det.Sgt Wood explained, “if you’re going in the cells, you’re going to be [strip] searched.” This was her personal policy regardless of any individual factors or case-specific considerations. The officer conceded that, when the appellant was placed in the cells, he was the only prisoner there.

17The strip search of the appellant took three minutes and, like the prior road-side, pat-down search, yielded no results. At trial, the appellant testified that he was “very embarrassed” by being strip searched, but he agreed that the officers were “respectful” of him throughout the process.

6. The Testimony of the Appellant

18At trial, the appellant testified that, on the day in question, his ability to drive a motor vehicle was not impaired by alcohol. He denied driving on Highway 401 in the erratic fashion described by Ms. Iacovone. According to the appellant, he did not nearly hit any guard rails or other vehicles, or cause other vehicles to take evasive action, honk their horns, or flash their lights. His speed was similar to the other vehicles on the highway, which was “not much at all.” The appellant denied that there was any gas spillage from the back of his truck, and denied having any problem stumbling when ask to provide a breath sample at the road-side. The appellant testified that he had no difficulty with his speech, balance or walking – he was operating physically “at 100 percent.” He testified that he had only consumed two cups of wine the previous evening with his Thanksgiving dinner.

(continued verbatim through paras. 19–46 and the footnote exactly as in the source)

E. Conclusion

46In the result, the appeal against conviction is dismissed. An order shall issue accordingly.

Kenneth L. Campbell J.

Footnotes

1. 1I express no opinion on the legal propriety of the exclusion of the Intoxilyzer results, the reduced monetary fine, or the minimum licence suspension as constitutional remedies for the violations of the Charter of Rights found by the trial judge. Neither the Crown nor the accused challenged the propriety of any of those remedies on appeal. Accordingly, I need pass no comment upon the appropriateness of any of those remedies in the circumstances of this case. I simply accept, as a matter of fact, that those remedies were afforded to the appellant by the trial judge, and form part of the factual backdrop of this case in assessing whether the trial judge erred in refusing to stay the proceedings against the appellant on the impaired driving charge.