ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-C1968
DATE: 2014/03/11
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
– and –
Stephanie Poirier
Respondent
I. Blanchard for the Appellant
M. Davies for the Respondent
HEARD: January 14, 2014
REASONS FOR JUDGMENT
CHARBONNEAU, Michel Z.
[1] The Crown appeals the acquittal of the Respondent on the charge of drinking and driving contrary to section 253 (a) and (b) of the Criminal Code of Canada by Justice Giamberardino of the Ontario Court of Justice.
[2] The Crown puts forward two grounds of appeal:
a) It is respectfully submitted that the Honourable Justice Giamberardino erred in his analysis of the evidence on the issue of reasonable and probably grounds. The evidence of erratic driving, failing to stop for police, odour of alcohol on the Respondent’s breath and her glossy eyes were more the sufficient for the officers to form their grounds for impaired operation of a motor vehicle.
b) It is also respectfully submitted that the Honourable Justice Giamberardino erred in his analysis under section 24 (2) of the Canadian Charter of Rights and Freedoms by concluding the officers by passed a major step of the investigation by not administering the roadside or approved screening device demand. The approved screening device demand under section 254(2) of the Criminal Code is simply an investigative took and the officers need not cascade through it before make a demand under section 254(3) of the Criminal Code.
[3] There were only two real issues at trial:
a) Did Officer Robert Lamarche have reasonable and probably grounds to arrest the Respondent and make a demand for a breath sample pursuant to section 254(3) of the Criminal Code .
b) If the answer to the question was no, should the intoxilyzer breath samples results obtained by the breath samples be excluded pursuant to section 24(2) of the Charter of Rights because they were acquired in violation of section 8 of the Charter.
[4] The trial judge decided that the officer did not have reasonable and probably grounds to arrest the respondent and that the intoxilyzer results had to be excluded as evidence.
FACTS
[5] The relevant facts on which the arresting officer, Constable Lamarche, formed his subjective belief that the respondent was driving while her ability to drive was impaired are not an issue. The trial judge accepted the evidence of Constable Lamarche. The trial judge described his evidence as follows: “ Constable Lamarche set out his involvement with Ms. Poirier in, what I would characterize as a straight forward and clear fashion.
It is helpful to fully set out the evidence of Constable Lamarche as to what lead him to believe he had reasonable and probable grounds to arrest the respondent and make a demand for samples of her breath. After having indicated that when the incoming vehicle passed his police cruiser it was travelling at 90 kilometer an hour in a 50 kilometer an hour zone Constable Lamarche testified:
A. So again, I do a fair bit of traffic enforcement so I always have
the radar – the vehicle I was travelling with had a radar equipped in
the vehicle. So after noting, making my visual observations, I activated
the front antenna on the – on the radar and obtained a reading of 90
kilometres per hour.
Q. What happened?
A. So that obviously got my attention because it’s 40 over in a 50 zone,
which is quite – quite – quite fast. So generally when I obtain a radar
reading I’m usually within two to 300 meters of the vehicle, so …
Q. M’humm.
A. … quickly the vehicle passes my location, I then proceeded to do a
u-turn and as I was doing that I always check my rear-view mirror because oftentimes, even at night time, the cruiser lights, especially on a Crown
Victoria, are pretty distinct. Most people recognize the cruiser when they
pass the cruiser, even at night time, and typically their reaction is to hit the brakes, even if they’re not speeding, it’s must a human nature thing. So I
noticed when I passed the vehicle, there was no – no brakes illuminated,
so I didn’t see any reaction from the driver. So I committed - completed
a u-turn and proceeded to try and catch up to the vehicle. I did catch up
to the vehicle just – just north of the – the Beaudette River….
Q. M’humm.
A. …which is, again, a few hundred meters south of Green Valley. I got
in position behind the vehicle and then observed it to be a silver Chrysler
Sebring. And I also noted that it had a burnt out plate light at the back.
I was able to see the marker, the rear licence plate.
Q. Which was?
A. Which was an Ontario place of AEWK 563, and like normal business
practice, we can – ran the plate through my provincial communications centre
and the response came back as it being a 2003 Chrysler, silver in colour, with
a registered owner of Laurel Cote Poirier. While this is going on, I’m monitoring the vehicle’s speed and, again, it was about the same that I originally clocked
it at. The speeds varied between 90 and 100 kilometres per hour. I continued to follow the vehicle…
Q. M’humm.
A. …between the bridge, again, of the Beaudette River and Concession 7,
which is the top of a hill, you know, several hundred metres to the south
of that river, and twice during that – that distance, the vehicle – the motor vehicle swerved across the centre line a good half a car width. And again,
luckily there was no – there was no other traffic on the roadway at the time.
And then right at the base of the hill which climbs up to the top of where Concession 7 is, the vehicle actually swerved over completely into the
opposite lane, so into the northbound lane, and remained in that lane as the vehicle proceeded up the hill….
Q. Sorry, I just – it was completely in the opposite?
A. Completely in the opposite lane, yeah, the car was completely in the northbound lane, which obviously created some anxiety because again it’s
a bad hill and, you know, it’s impossible to see the traffic on the other side.
Once I crested the hill, I acti (sic) - or activated the emergency lights in the cruiser, which is now in proximity to Concession 7 where Concession 7
inter (sic) – intersects County Road 34, and immediately noticed that
there was no reaction whatsoever from the driver. And when I say no reaction, typically as soon as you hit emergency lighting, especially at night with our
LED blue, red and white lights being so bright, typically you’d see the
bright lights come on right away.
Q. M’humm.
A. There is no such reaction.
Q. So no reaction from?
A. From the vehicle, from - ...
Q. From the....
A. …from the driver.
Q. Okay.
A. So that being said, the vehicle didn’t’ slow down, it just - …
Q. Okay.
A.… It was unresponsive.
Q. So the vehicle did not slow down?
A. Did not slow down, did not brake. So subsequent to that, we
immediately activated the – the siren, and upon activating the siren there
was still no reaction from the driver. So again, no – no change in speed,
no brake lights illuminating. And in our training we’re told if someone’s
not reacting to a certain pitch or a certain type of siren, we have several that we can cycle through.
Q. M’humm.
A. And so we did that next, …
Q. Okay.
A. …cycle through the different sounds and again to no avail, there is
still no reaction from the driver. So at this point, so now we’re at the
bottom of the hill passed Concession 7, the vehicle is now back in its lane
in the southbound lane.
Q. So when you say weaving, what do you mean?
A. So between the fog line and the dividing centre line…
Q. Okay.
A. …or double centre line. So - …
Q. So it’s …
A. … so basically it’s sort of drifting between the fog line and the –
the – the middle – the middle line if it’s – whether it’s a…
Q. M’humm.
A. …solid line or dashed passing line. So now we’re – we’re following.
Q. M’humm.
A. … solid line or dashed passing line. So now we’re – we’re following.
Q. M’humm.
A. Lights and siren activated and the vehicle’s weaving within its lane
and at- and this goes on for a little while, until we reach south of Concession
7, you pass Beaupre Road on the fight, you continue on and then there’s
another hill, a slight – a smaller hill. So just before that hill. The vehicle did
cross over into the oncoming lane about a quarter of the way, so a quarter
of the vehicle crossed over into that oncoming lane at the bottom of that
second hill, and then returned to its lane, and then slowly dropped its speed
from 80 to 90 kilometres per hour to between 60 and 70. This went on again
for several meters and then once over the hill – so now we’re getting close
to County Road 18, or the intersection of County Road 18, the vehicle
continued to slow, signaled, and then pulled over to the shoulder of the
highway, stopping with the wheels on the driver’s side resting on the fog
line, which is, again, not ideal. The shoulders are quite wide on Country
Road 34, even part of it being paved beyond the fog line and – but it stopped basically the wheels right on the fog line. The vehicle came to a stop at 2:02 a.m.
Q. 2:02 a.m.?
A. That’s correct.
Q. What happened once the vehicle was stopped?
A. So by – certainly by this point, given the – all my observations from
the beginning when I first noted the vehicle speeding at a high rate of speed
in a 50 kilometer zone, to the behavior of the driver, of the weaving and to
the point where it was in completely in the oncoming lane, I’m starting to suspect that the driver is impaired. So immediately stopping- and once the car stopped,
I immediately approached the – the driver’s door. In looking inside, I could see there was a lone occupant, a single – a single female driver seated behind the wheel. So I observed the female seated with a seatbelt on and I – I noted that her – her hands are at the positions at ten and two on the steering wheel. Again, this is all happening basically at the same time, so I come up and make the observations, I immediately opened the door, the driver’s side door.
MS. BLANCHARD: Q… So you open the door?
A. Yeah.
Q. M’humm?
A. And upon doing so, I immediately detect a – an odour of alcohol coming
both from within the vehicle, and subsequent to that, I notice it coming off of
the driver’s breath.
Q. And how did you know if it was coming from her breath?
A. Basically when she turned, I mean I’m standing inside the door, you know, literally inches away from her when she turned to engage, engage me, I said I could detect off of her breath.
Q. Okay.
A. In my observations, aside from the alcohol, I also noticed when she –
the driver looked up at me, and again I always stand with my – on my hand
with a flashlight, when I do my driver’s stop or vehicle stops at night,
I could see that her eyes were very glossy as she looked up at me. So at
that point, given all my observations, the driving behaviour, the fact that
the vehicle did not react when passing a cruiser, the – the swerving, the
weaving within its lane into the oncoming lane, the fail to stop once we
activated lights or reacting to lights, failing to act – or react to the siren in combination with the lights, and the subsequent, I don’t want to call it a
pursuit, but it’s a fail to stop, she wasn’t trying to evade, however she was
not stopping, which is very out of the norm, in totality with the odour of
alcohol, the glossy eyes, I formed the grounds to believe that she was impaired by alcohol.
[7] The trial judge found that Constable Lamarche “clearly believed he had reasonable grounds”. He then proceeded to determine whether Constable Lamarche’s conclusion was supported by objective facts. He set out the test to be applied in determining the issue by reference to the decision of the Supreme Court of Canada in R.v. Storrey 1990 125 (SCC), [1990] 1S.C.R. 241 AT P.250: “The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were reasonable and probable grounds for the arrest.”
[8] The trial judge then proceeded to find that the additional fact of the presence of an odour of alcohol on the respondent could not elevate mere suspicion to reasonable and probable grounds.
[9] He explained this as follows:
“I’m struck by two features in the evidence. The first, is that in his
evidence, Cst. Lamarche states that just prior to opening the door of
Ms. Poirier’s vehicle he indicates that he is, “staring to suspect the driver
is impaired”. As well, Cst. Falle stated, his intention was to arrest
Ms. Poirier for failing to stop for police.
My question, somewhat rhetorically I suppose, would be this. What happens in
this situation if Ms. Poirier does not have an odour of alcohol? Based on
the evidence I’ve heard, she would have been charged with a series of
infractions under the Highway Traffic Act.
The suspicion of impairment would take a serious hit without some or at least
more indicia of impairment. There were no field sobriety tests. Constable
Lamarche fairly indicated, this was not a situation of flight from police. Constables Lamarche and Falle did not note a flushed or red face, no red or glassy eyes, no bloodshot or watery eyes, no fumbling of documents, no slurred speech, no
difficulty with Mr. Poirier’s motor movements, no difficulty with balance and no difficulty following direction.
So can the odour of alcohol by itself at this point in time objectively move
Cst. Lamarche from a suspicion of impairment by alcohol to reasonable and
probable grounds to believe an impairment by alcohol?
I find that in this case I cannot objectively be satisfied, based on the manner in
which the evidence unfolded before me, that Cst. Lamarche could objectively believe there were reasonable and probable grounds to justify the demand under s. 254(3) for a breath test on an Approved Instrument. In my view, the facts as they unfolded would have called for a demand on an A.S.D., or an Approved Screening Device.
The odour alone and the absence of other physical indicia renders, in my view,
no substance or weight to the amount or the effects of alcohol on Mrs. Poirier”.
ANALYSIS
[9] It is well recognized that the issue whether the facts found by a trial judge amount at law to reasonable and probable grounds is a question of law.
[10] In R.v. Shepherd [2009] S.C.C. 35 at para 20, the Court clearly indicates the standard of review is correctness:
“ However, this Court has repeatedly affirmed that the application of a
legal standard to the facts of the case is a question of law: see R.v. Araujo,
2000 SCC 65, [2000] 2 S.C.R. 992, at para. 18; R.v. Biniaris, 2000 SCC 15, [2000] 1 S.CR. 381, at para. 23. In our view, the summary conviction
appeal judge erred in failing to distinguish between the trial judge’s findings of fact and his ultimate ruling that those facts were insufficient, at law, to
constitute reasonable and probable grounds. Although the trial judge’s factual findings are entitled to deference, the trial judge’s ultimate ruling is subject to review for correctness”.
[11] With all due respect to the trial judge, I find he committed an error of law when he ruled that Cst. Lamarche did not have an objective basis for his belief. The error arises out of his reliance on absence of certain physical indicia of impairment. That was not the issue. Rather he had to determine whether the totality of the observations made by the constable afforded him an objective basis for his belief. His rhetorical question, what if there had not been an odour of alcohol, misapplies the legal analysis. The legal test required that he determine the issue on the totality of the evidence and not look at the presence or absence of various factors in isolation.
[12] Here the officer had observed the following factors which lead him to his ultimate conclusion:
• The driver failed to react when passing the cruiser at high speed.
• The Respondent crossed the middle centre line with her vehicle on more than one occasions, including at a point where her vehicle was going up a hill thereby creating a serious traffic hazard.
• The Respondent was weaving between the middle centre lane and the fog lane.
• The Respondent failed to stop for 2.1 kilometers after the lights and sirens on the police vehicle were activated.
• Immediately upon opening the door of the vehicle in which the respondent was the sole occupant, he noted an odour of alcohol coming from her breath and then noticed that she had glossy eyes.
[13] Those facts were sufficient to meet the low threshold of establishing a reasonably grounded belief that the respondent’s ability to drive was at least slightly impaired. There is no requirement at law for the arresting officer in such circumstances to proceed to analyse the presence or absence of all potential indicia of impairment before he makes his determination of reasonable and probable grounds. To require such an analysis is an error of law.
[14] For all these reasons, the respondent’s acquittal is set aside. Crown counsel concedes that the only fair disposition is to order a new trial.
[15] In the circumstances, I see no need to proceed with the second ground of appeal relating to the exclusion of the intoxilyser results.
[16] The appeal is allowed and the acquittal is set aside and a new trial is ordered.
Charbonneau J.
Released: March 11, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Appellant
– and –
Stephanie Poirier
Respondent
REASONS FOR JUDGMENT
Charbonneau, J.
Released: March 11, 2014