COURT FILE NO.: CR-12-40000078-00AP

DATE: 20130122

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HER MAJESTY the QUEEN, Respondent

AND:

MEIR COFFER, Appellant

BEFORE: MacDonnell, J.

COUNSEL: James Frost, for the Appellant

Lori Hamilton, for the Respondent

HEARD: January 21, 2013

On appeal from the conviction entered on June 15, 2012 by Justice Leslie Pringle of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1] The appellant was charged that on February 6, 2011 at the City of Toronto he operated a motor vehicle while his ability to do so was impaired by alcohol. Arising out of the same incident, he was also charged with operating a motor vehicle having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood.

[2] The sole issue at trial was whether the officer who investigated the appellant had reasonable grounds to arrest him for impaired driving and to make an Intoxilyzer demand under s. 254(3) of the Criminal Code. The position of the defence was that the officer did not have those grounds, that the arrest of the appellant and the subsequent obtaining of samples of his breath infringed his rights under ss. 9 and 8 of the Charter, and that the results of the breath tests should be excluded under s. 24(2) of the Charter.

[3] The trial judge rejected that position. In her view, the officer had reasonable grounds at the point of arrest to believe that the appellant’s ability to drive was impaired by alcohol. In the circumstances of this case, that finding was dispositive of both charges and findings of guilt were made with respect to both. The trial judge entered a conviction on the ‘over eighty’ count and a judicial stay on the impaired driving count.

[4] The appellant submits that, at most, the officer had a reasonable basis for a suspicion that his ability to drive was impaired by alcohol. While that suspicion could have justified further investigation, or perhaps a roadside screening demand, the officer leapt unreasonably to a conclusion of impairment. The appellant further argues that the trial judge conflated the inquiry as to whether the officer subjectively believed that he had reasonable grounds with the inquiry as to whether those grounds were objectively reasonable. Accordingly, the appellant submits, the trial judge erred in holding that his rights under ss. 8 and 9 of the Charter were not infringed.

[5] There is no dispute with respect to the standard to be applied to a review of the trial judge’s reasons. In the absence of palpable and overriding error, the findings of fact that underlie her assessment of the officer’s grounds for arrest are entitled to deference. Whether, based on those facts, the officer had the requisite reasonable grounds is a question of law. The trial judge’s answer to that question of law is reviewable on a standard of correctness: R. v. Shepherd, 2009 SCC 35, at paragraph 20.

[6] In my view, the appellant has not established any error on the part of the trial judge in relation to her findings of fact, her appreciation of the law, or her application of the law to the facts.

[7] The trial judge was alive to the position of the defence in relation to the speed with which the arresting officer formed his opinion that the appellant’s ability to drive was impaired by alcohol. She stated that defence counsel’s submission “that the arrest was overly hasty and amounted to a ‘rush to judgment’ deserves serious consideration”. She acknowledged that “it’s fair to say that there were alternatives available to the officer, including further conversation or calling for an approved screening device.” Her reasons make clear, however, that she also recognized that the question was not whether the officer could have done more prior to arresting the appellant but whether, at the point of arrest, he had reasonable grounds to believe that the appellant’s ability to drive was impaired. In that respect, the case bears some similarities to R. v. Bush, 2010 ONCA 554. Writing for the court in that case, Durno J. (sitting ad hoc) stated at paragraph 69:

The issue is not whether the officer could have conducted a more thorough investigation. The issue is whether, when the officer made the breath demand, he subjectively and objectively had reasonable and probable grounds to do so. That the belief was formed in less than one minute is not determinative. That an opinion of impairment of the ability to operate a motor vehicle can be made in under a minute is neither surprising nor unusual.

[8] I do not agree that the trial judge conflated the question of the arresting officer’s subjective belief with the issue of whether the belief was based on reasonable grounds. She stated:

The law requires that not only must an officer have a subjective belief that there are reasonable and probable grounds for arrest, but that in addition, the grounds must be objectively reasonable. This is an important protection for the individual rights and freedoms of the citizen, and a safeguard against an abuse of power by a police officer. Therefore, an officer must not only personally believe in the grounds for arrest, there must also be an objective basis upon which to conclude that his or her belief was reasonable… This requires an assessment of the totality of the circumstances. It is not a search for only those circumstances known to the officer that offer support for the officer’s subjective conclusion.

[9] The trial judge then conducted a careful review of the evidence of the arresting officer, testing it against the other evidence in the case and in particular against the contents of the in-car video. She found that the officer was mistaken in relation to certain of his observations. Setting those observations aside, she turned to the central issue in the trial:

Was the officers’ conclusion objectively reasonable? I accept Sgt. Musah’s evidence that Mr. Coffer was driving too quickly for the weather and he was straddling the hash marks in the road; these factors suggested a lack of care and poor judgement on the part of the driver. I also accept Sgt. Musah’s evidence that Mr. Coffer was aware of his presence when he pulled into 120 Shelburne and heard his instructions yet continued to ignore them; these factors suggested that Mr. Coffer was either again exercising poor judgement or was actively ignoring the officer. Finally, Mr. Coffer smelled strongly of alcohol and had red glassy eyes, suggesting that the driving concerns, the lack of judgement, and/or the desire to avoid the police were related to alcohol consumption. While the grounds were not overwhelming, I find that they were objectively reasonable and supported the conclusion that Mr. Coffer’s ability to drive his motor vehicle was impaired by alcohol that night.

[10] It is not disputed that it was open to the trial judge to accept the officer’s evidence with respect to the manner in which the appellant was driving, his behaviour when the officer attempted to speak to him, and the physical symptoms that the officer observed. Like the trial judge, I accept that those facts do not constitute an overwhelming case for a belief in the impairment of the appellant’s ability to drive, but they are not required to do so. The question is whether they provided a basis upon which a reasonable person could conclude that there were reasonable grounds to believe that the appellant’s ability to drive “was even slightly impaired by the consumption of alcohol”: R. v. Bush, supra, at paragraph 48. Considered as a whole, I agree with the trial judge that they did provide such a basis.

[11] Notwithstanding the able submissions of Mr. Frost, the appeal must be dismissed.

MacDonnell, J.

Released: January 22, 2013