ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 105/13
DATE: 20140929
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ADAM KELLY
Megan Petrie, for the Crown, Respondent
A. Martin Montes, for the Appellant, Adam Kelly
HEARD: Sept. 19, 2014
r.f. goldstein j.
REASONS FOR JUDGMENT
[1] On September 19, 2014 I dismissed the appeal from the bench and indicated that reasons would follow. These are those reasons.
[2] The Appellant was driving late at night in an erratic manner when he crashed into a barrier and was injured. The officers who attended on scene found him to be mumbling, incoherent, and reeking of alcohol. He was clearly drunk.
[3] The trial judge excluded the evidence of the Appellant’s breath samples (his blood alcohol content was well above the legal limit) as well as incriminating statements made to the officers. Those incriminating statements included an admission that he was the driver, confusion about whether he was strapped into his car or strapped into a hospital gurney, and asking the arresting officer for a date. The evidence that was left was, essentially, the observations of the civilian witness of erratic driving and the observations of the officers of an apparently drunk man.
[4] The officer who arrested the Appellant relied on his self-identification as the driver. The trial judge found that this amount to a violation of s. 8 of the Charter: R. v. Soules 2011 ONCA 429, [2011] O.J. No. 2500, 105 O.R. (3d) 561, 273 C.C.C. (3d) 496 (C.A.). Without the self-identification the officer said that she had no other grounds to arrest the appellant.
[5] I pause to note that the officer was clearly wrong about that. The Appellant was lying in an ambulance, the only injured party in a one-vehicle collision. There was nothing to suggest that anyone else was the driver. She was an inexperienced police officer who likely admitted to something that a more experienced officer would not have.
[6] Be that as it may, the trial judge found that there was an arbitrary detention. The trial judge also found a violation of s. 10(b) of the Charter. The trial judge conducted an analysis under s. 24(2) of the Charter and excluded the Appellant’s statements and the breath samples that were taken at the hospital.
[7] The trial judge did not purport to exclude the observations made by the police officers of the Appellant. Accordingly, he did not conduct an analysis under s. 24(2) of whether those observations should have been excluded.
[8] The Appellant argues that the trial judge erred by failing to exclude those observations because the entirety of the course of conduct of the police while the Appellant was in detention should, in effect, be excluded. This is because the trial judge found that the officer could not have had reasonable and probable grounds to arrest for impaired driving.
[9] I disagree. The Ontario Court of Appeal has rejected such an approach: R. v. Lutchmedial, 2011 ONCA 585, [2011] O.J. No. 3999 (C.A.). See also R. v. DeWitte, [2012] O.J. No. 976 (Sup.Ct.). There is no basis to conclude that because the arrest was made without reasonable grounds everything that followed must be excluded. There is no bright line test: R. v. Manchulenko, 2013 ONCA 543, [2013] O.J. No. 3977 (C.A.). See also: R. v. Ibrahim, [2014] O.J. No. 2123 (C.A.).
[10] Furthermore, even if I accepted the Appellant’s submissions that the trial judge erred in not finding a violation with regard to the observations, I would have had little difficulty refusing to exclude them under s. 24(2) of the Charter. If I were I to do a fresh s. 24(2) analysis, I would have little difficulty finding that there were ample grounds to arrest the Appellant even without self-identification. He was the only injured person lying in an ambulance in a one-vehicle collision. Although it is certainly possible that there might have been more than one injured person, a reality-based analysis would logically conclude that the person lying on the gurney, reeking of alcohol and incoherent, was the driver of the vehicle that smashed into the guardrail. The independent evidence of Mr. Burkett is that he escorted the driver directly to the hands of the emergency medical personnel.
[11] Thus, I disagree that the trial judge should have excluded the evidence of the observations.
[12] The Appellant also argues that there was little evidence of identification of the driver and that the trial judge misapprehended the evidence. I disagree. The officer identified the person in the dock as the person in the ambulance. In-dock identification is obviously of little weight. That said, there was obviously a whole chain of custody of the Appellant, from Mr. Burkett to the ambulance to the hospital. There was other evidence, as I have mentioned, to support the Appellant as the driver of the vehicle. There is certainly nothing to raise a doubt about the driver’s identity. The Appellant did not testify. The fact that he did not testify is something that an appeal court can take note of.
[13] The Appellant also challenges the reasonableness of the verdict. He points to the fact that alcohol smell alone is not enough for a conviction: R. v. Tavone, [2007] O.J. No. 3073 (Sup.Ct.). He also suggests that bad driving alone is not grounds to find impairment beyond a reasonable doubt.
[14] I disagree. Another reality-based analysis would show that a person reeking of alcohol, slurring his speech, driving erratically at a high rate of speed, and crashing into a guardrail when there were no other cars around, was impaired. The evidence clearly supported a verdict of guilty on the impaired driving charge. There was no error by the trial judge in this respect. The appeal is dismissed.
R.F. Goldstein J.
Released: September 29, 2014
COURT FILE NO.: 105/13
DATE: 20140929
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ADAM KELLY
REASONS FOR JUDGMENT
R.F. Goldstein J.