ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-13-31
DATE: 2013-09-11
BETWEEN:
HER MAJESTY THE QUEEN
– and –
WILLIAM PATRICK JOSEPH MCGILL
Defendant
Harutyun Apel, for the Crown
Robert Brooks, for the Defendant
HEARD: September 10, 2013
REASONS FOR JUDGMENT
CONLAN J.
Introduction
[1] William McGill stands charged in a five-count Indictment which includes offences of impaired operation of a motor vehicle contrary to subsection 253(1)(a) of the Criminal Code of Canada (“CCC”) – count 1, over 80 operation of a motor vehicle contrary to subsection 253(1)(b) CCC – count 2, and breach of recognizance for failing without lawful excuse to obey a condition that he not operate or have care or control of a motor vehicle contrary to subsection 145(3) CCC – count 5.
[2] Mr. McGill has entered pleas of not guilty to those three charges. The Crown did not proceed on the other two counts.
[3] This one-half day blended hearing, trial and Charter Application voir dire, took place in Milton on September 10, 2013. There were two police witnesses called by the Crown. The Defence called no evidence. I reserved my Judgment until this morning.
The Facts
[4] In a nutshell, the police were patrolling through a privately owned commercial parking lot in Milton on September 5, 2012.
[5] The police were conducting random queries of licence plates. One of those queries revealed that a vehicle in the parking lot was owned by Mr. McGill; that Mr. McGill was out on bail for other charges; and that one of his release conditions was that he not operate or have care or control of a motor vehicle.
[6] The police stopped Mr. McGill’s motor vehicle as it was about to exit the parking lot.
[7] Mr. McGill was arrested for breach of recognizance and later for impaired operation of a motor vehicle. He provided two breath samples which recorded 150 milligrams of alcohol in 100 millilitres of blood.
The Charter Application
[8] The Defence asserts that Mr. McGill’s section 8 Charter right to be free from unreasonable search or seizure was violated when the police queried his licence plate; that the said unreasonable search then led to an arbitrary detention of Mr. McGill under section 9 of the Charter; and that all evidence obtained by the police after the said search ought to be excluded from the trial pursuant to subsection 24(2) of the Charter.
Analysis
The Charter Application
[9] The Defence bears the burden of proving a Charter violation. The standard is on a balance of probabilities.
[10] For the reasons that follow, the Charter Application is dismissed.
[11] I find that Mr. McGill had no reasonable expectation of privacy in his licence plate or in the information that the police received following the query of the licence plate. There is no evidence before me that Mr. McGill had a subjective expectation of privacy. There is no cause for me to conclude that an objectively reasonable person would have an expectation of privacy.
[12] The licence plate is affixed to the vehicle for all persons to plainly see.
[13] Regarding the information revealed by the query, all that I know from the evidence adduced before me is that it was limited to who owned the vehicle as well as Mr. McGill’s outstanding charges and bail conditions. Mr. McGill has no control over that information. He has no authority or ability to restrict other person’s access to that information.
[14] Absent a reasonable expectation of privacy, Mr. McGill’s section 8 Charter right is not engaged.
[15] The Defence conceded that its position regarding section 9 of the Charter depends upon a finding of an unreasonable search. I make no such finding.
The Trial Proper
[16] The Defence made no submissions regarding count 5. The Recognizance of Bail and the condition at issue are admitted. Clearly, Mr. McGill was operating a motor vehicle. I am not aware of any lawful excuse for him doing so.
[17] Count 5 has been proven by the Crown beyond a reasonable doubt. A finding of guilt is made.
[18] Regarding the impaired operation of a motor vehicle, the Defence argues simply that the indicia of impairment are too weak so as to constitute proof beyond a reasonable doubt.
[19] I disagree. Even slight impairment is enough.
[20] I accept the evidence of Constable Osgood at the Preliminary Inquiry (which evidence was filed as an Exhibit at trial, on consent) as to her observations of Mr. McGill’s impairment by alcohol at the time of his operation of the motor vehicle. Those observations included an odour of alcohol on Mr. McGill’s breath, his delayed reactions, his unsteadiness on his feet, his “heavy tongue” while speaking, him being dishevelled, his bloodshot eyes, the open beer cans in the vehicle and his unusually slow driving prior to the stop.
[21] On count 1, I find Mr. McGill guilty. The Crown has proven that charge beyond a reasonable doubt, even without any reference to the breath sample results.
[22] Regarding the over 80 operation charge, the Defence argues that subsection 258(1)(f) CCC has not been complied with.
[23] I disagree. Exhibit 2 at trial, the Certificate of a Qualified Technician, contains a clause which satisfies the said subsection – “That an analysis was made of each of the samples by means of the said instrument which was operated by me and which I ascertained to be in proper working condition by means of an alcohol standard that was suitable for use with the said instrument and identified as Manufacturer Calwave, Lot Number 20716”.
[24] The Crown has proven count 2 beyond a reasonable doubt. A finding of guilt is made on that charge.
[25] Conclusion
[26] I find Mr. McGill guilty of counts 1, 2 and 5 on the Indictment.
[27] I will hear submissions as to which finding of guilt ought to be conditionally stayed and submissions regarding sentence.
Conlan J.
Released: September 11, 2013
COURT FILE NO.: CR-13-31
DATE: 2013-09-11
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
WILLIAM PATRICK JOSEPH MCGILL
Defendant
REASONS FOR JUDGMENT
Conlan J.
Released: September 11, 2013