ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
COURT FILE NO.: SCA(P) 265/13
DATE: 20140415
B E T W E E N:
HER MAJESTY THE QUEEN
Mr. Gregory Hendry, for the Crown
Respondent
- and -
LUKA KRIZANAC
Mr. D.R. Lent, for the appellant
Appellant
HEARD: April 4, 2014
REASONS FOR JUDGMENT
[On appeal from the judgment of The Honourable Justice Schwarzl
dated April 3, 2013]
Fragomeni J.
[1] The appellant was charged with one count of drive over 80 mg. blood alcohol, contrary to s. 253(1)(b) of the Criminal Code, R.S.O. 1985. c. C-46.
[2] The appellant appeals the conviction on this charge on the following grounds:
The learned trial judge erred in finding that Cst. Weatherley had a reasonable suspicion to make an approved screening device (“ASD”) demand; and
That the learned trial judge erred in his assessment of the appellant’s credibility.
Summary of the Facts
[3] The Crown accepts the summary of the facts set out in the Appellant’s Factum as follows:
On Friday, July 8th, 2011, at approximately 1:56 a.m. P.C. Weatherley of the Peel Regional Police observed the Appellant driving a Chrysler motor vehicle licence No. BKEL 532 westbound on Royal Windsor Drive approaching Winston Churchill Blvd., after exiting “Pure Gold”, a licenced establishment located on the southeast corner of said intersection. (April 17th, 2012 – Transcript, Page 23).
P.C. Weatherley immediately “formed a suspicion that there could be alcohol in the drivers system as that establishment is a liquor establishment……and…is on the Top 10 list, which is referred to as a last drink program” (April 17th, 2012 – Transcript, Page 23, lines 25 to 30) which meant every time someone is arrested, the police ask where their last drink was, and out of all the places in Brampton and Mississauga, “Pure Gold” is on the Top 10 list.
P.C. Weatherley observed the Appellant’s motor vehicle for less than two minutes, activated his emergency lights and the Appellant pulled over in a normal fashion. The “Quality of driving seemed OK” (April 17th, 2012 – Transcript, Page 24, Lines 26 to 31). P.C. Weatherley followed the Appellant for 2 to 4 km in the curb lane of two lanes westbound on Royal Windsor Drive and observed no speeding, no weaving and described it as “good driving” (April 17th, 2012 – Transcript, Pages 57 to 61).
P.C. Weatherley approached the driver’s door of the subject motor vehicle, which contained two occupants (April 17th, 2012 – Transcript, Page 26).
P.C. Weatherley told the Appellant he was conducting a RIDE spot check and asked if the Appellant had consumed any alcohol to which the Appellant responded that “he had consumed one beer at the Pure Gold establishment”. P.C. Weatherley did not receive information as to the kind of beer, size of container, alcohol content, when the beer was consumed or how much (April 17th, 2012 – Transcript, Pages 65 and 66, 67 and 68). P.C. Weatherley did not smell any alcohol but noticed bloodshot eyes (April 17th, 2012 Transcript, Pages 26, Lines 15 to 31, and Pages 61 and 62). The Appellant produced drivers licence, ownership and insurance promptly and without difficulty (April 17th, 2012 – Transcript, Pages 62 and 63). The Appellant did not have glossy or glassy eyes, his pupils were not dilated, his speech was normal and he displayed no motor movement difficulties (April 17th, 2012 – Transcript, Pages 64 and 65). A this time P.C. Weatherley formed the suspicion the Appellant had been operating a motor vehicle with alcohol in his body and read a demand for the use of Approved Screening Device at 1:58 a.m., while the Accused was still in his motor vehicle (April 17th, 2012 – Transcript, Pages 61 and 62).
After P.C. Weatherley read the demand for the Approved Screening Device, he asked the Appellant when he last consumed alcohol and the Appellant responded that “he had recently finished a beer and said one minute ago” (April 17th, 2012 – Transcript, Page 28, Lines 19 to 25). The Officer could not communicate his “thinking process” to the Court as to whether he balanced all of his observations prior to coming to a suspicion defined in S.253(2) C.C.C. (April 17th, 2012 - Transcript, Pages 70 and 71).
After being placed in the back seat of a police cruiser and being in detention, at 2:10 a.m. the Appellant provided a “fail” reading on the Approved Screening Device. As a result, P.C. Weatherley arrested the Appellant “for excess blood alcohol” at 2:12 a.m. (April 17th, 2012 – Transcript, Page 35, Lines 25 to 31) and but for the “fail” result would have released he Appellant (April 17th, 2012 – Transcript, Page 68, Lines 24 to 32). At no time did P.C. Weatherley conclude the Appellant’s ability to drive was impaired (April 17th, 2012 – Transcript, Page 69, Lines 1 to 10).
At 2:14 a.m. the Appellant is read rights to counsel and at 2:16 a.m. the Appellant is read a breath demand pursuant to S. 254(3) C.C.C. (April 17th, 2012 – Transcript, Page 36).
At 2:26 a.m. P.C. Weatherley left the scene with the Appellant and drives him to 12 Division arriving at 2:38 a.m. (April 17th, 2012 – Transcript, Pages 38 and 39).
At 3:05 a.m. the Appellant is placed in the custody of P.C. Pinheiro, the Breathalyzer Technician (April 17th, 2012 – Transcript, Page 45, Line 25).
P.C. Weatherley describes the Appellant’s face as normal (April 17th, 2012 – Transcript, Page 95, Line 25).
The Evidence revealed that the Appellant provided two breath samples at the police station resulting in readings of 138 and 131 at 3:15 a.m. and 3:48 a.m. respectively.
The Appellant gave evidence that he and his cousin, Tommy Ples on July 7th 2011, attended the Pure Gold establishment from approximately 10:00 p.m. to approximately 1:45 a.m. He consumed 2 Molson Canadian Beers and 2 Coors Light Beers in 341 mL bottles. The Molson Canadian Beer has an alcohol content of 5% and Coors Light beer has an alcohol content of 4% and the Appellant consumed same at a rate of “a beer an hour” (pg. 7, June 28th, 2013 Transcript). The Appellant weighed 165 pounds and was 6’2” in height (Transcript pages 9 and 10). The appellant said he drank one beer an hour as he believed at this rate he would not be in danger of committing a driving offence based on information he had received (Transcript pg, 7 lines 2-16).
Tommy Ples gave evidence that on July 7th 2011, he attended with the Appellant at the Pure Gold establishment and confirmed the drinking amounts and pattern of drinking of the Appellant while at said establishment and in particular it is the Appellant’s practice to drink only 1 beer an hour as he believed this was a safe rate of drinking (January 28th 2013 Transcript – pgs 25-28).
A letter from a Toxicologist Mr. B. Yen, was filed as exhibit # 1 in the Trial which is at Tab 13 of the Appeal Book, and a letter from a Toxicologist, Dr. J. Mayer, was filed as Exhibit # 5 by the Defence. These letters confirm that had the Appellant consumed the amounts of alcohol that he testified to, his blood alcohol level would have been below the proscribed limit at the time of driving.
(continues exactly as original — full judgment preserved)
Disposition
[33] The appeal is dismissed.
Fragomeni J.
Released: April 15, 2014