CITATION: R. v. Van Allen, 2015 ONSC 2469
OSHAWA COURT FILE NO.: 13575/14AP
DATE: 20150415
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
STEVEN VAN ALLEN
Appellant
M.A. Flagg, for the Crown
I. Grant, for the Appellant
HEARD: April 8, 2015
REASONS FOR DECISION
On appeal from the decision of The Hon. Mr. Justice D. Stone
dated January 9, 2014
MULLIGAN J.:
[1] The appellant, Steven Van Allen, appeals his conviction for operating a motor vehicle “over 80”, contrary to s. 253(1)(b) of the Criminal Code, made by Justice David Stone of the Ontario Court of Justice, on January 9, 2014. At trial, the appellant brought a Charter application to exclude his breath samples on the basis that the arresting officer lacked reasonable and probable grounds for such a demand. The Charter application and trial were held together as a blended hearing. The essence of the appeal is that the trial judge misapprehended the evidence heard at the blended hearing. The appellant requests that the conviction be set aside and a new trial ordered.
The Evidence at Trial
[2] In Reasons for Judgment granted after trial, the learned trial judge reviewed the circumstances surrounding Officer Broadfoot’s traffic stop and his decision to arrest the appellant and demand a breath sample. The officer was involved in a R.I.D.E. Program. He observed a vehicle that he thought was speeding, with a driver who appeared not to be wearing his seatbelt. He stopped the vehicle without incident. The trial judge summarized the following indicia of impairment, which he noted the officer relied upon to make a demand:
(a) the strong odour of alcohol on the accused’s breath;
(b) conduct, which I would summarize as efforts at evasion, and effective denial of drinking. … And finally admitting one beer when he was out of the car and could no longer blame the passenger, and then admitting maybe more alcohol;
(c) speech which was slow and deliberate, which Broadfoot said some people would call slurring;
(d) unusually slow and deliberate efforts to locate his driver’s license and papers while Broadfoot would expect to reach in and get the papers more quickly.
[Emphasis added.]
[3] Much of the emphasis of this appeal is the judge’s use of the word “slurring” later in his decision. The trial judge was invited to look at the video of the breath demand and make his own observations. As he said later in his decision, “However, I did detect some instances of thickness of speech and slurring on the intoxilyzer video.”
[4] The issue of slurring came up in the examination in chief of the arresting officer, P.C. Broadfoot.
[5] After noting the strong odour of alcohol when speaking to the appellant, the officer stated:
A. And I continued to note the strong alcohol – or strong odour of alcohol – coming from the driver’s breath. And I continued to note the slow and deliberate speech.”
Q. What did you mean by “slow and deliberate speech”?
A. Umm – commonly referred to – I guess, “slurred” is – is sometimes used as well. I don’t necessarily like that term, but concentrating on enunciation. Umm – that’s the best way I can describe it. Real – really concentrating on the words that you – that are being used.
[6] Later in his reasons, the trial judge observed that the breath video did not undercut the officer’s credibility. The trial judge noted in his reasons:
However, I did detect some instances of thickness of speech and slurring on the intoxilyzer video. This was not always present, but there was some indication of that, and that did assist the credibility of Const. Broadfoot.
Position of the Appellant
[7] The appellant submits that the trial judge misapprehended the evidence on a material issue, and such constitutes a miscarriage of justice: R. v. Morrisey, 1995 CanLII 3498 (ON CA), [1995] O.J. No. 639 (C.A.) at para. 93.
[8] The officer’s evidence was that the appellant’s speech was “slow and deliberate”. Although he did not describe it as “slurring” speech, he testified that that type of speech was commonly referred to as “slurred speech”.
[9] The trial judge then reviewed the video and found, “I did detect some instances of thickness of speech and slurring on the intoxilyzer video.”
[10] The appellant suggests that the officer lacked reasonable and probable grounds to demand a breath sample, and the trial judge misapprehended the evidence. As the appellant states in para. 20 of his Factum:
The trial judge found that reasonable and probable grounds were made out in this case in only a “borderline” way. The judge’s mistaken belief that the officer had heard the appellant slurring his words, a strong and classic sign of impairment, clearly contributed significantly to his finding that the evidence, taken as a whole, amount to reasonable and probable grounds.
The Position of the Crown
[11] The Crown’s submission can be captured by referring to para. 9 of its Factum:
In any event, a review of the trial judge’s Reasons for Judgment on the Charter application makes it clear that he carefully considered all of the circumstances surrounding the incident before he concluded that P.C. Broadfoot did indeed have reasonable and probable grounds to make the breath demand.
[12] The Crown referred to the trial judge’s summary of indicia of impairment, including the strong odour of alcohol, efforts at evasion, initial denial of drinking, speech which was slow and deliberate, which Const. Broadfoot said some people would call slurring, unusually slow and deliberate efforts to locate his driver’s license and papers.
[13] As the Crown states in its Factum at para. 5:
The appellant makes this submission as if the finding about slurred speech was the only indication of possible impairment upon which the arresting officer, and the trial judge, relied on to form the opinion about grounds to make the breath demand. The appellant seeks to isolate this factual finding from the numerous factual determinations which informed P.C. Broadfoot’s opinion and which the trial judge accepted.
Analysis
[14] In R. v. Bush (2010), 2010 ONCA 554, 259 C.C.C. (3d) 127, the Ontario Court of Appeal provided a summary of principles to assess whether reasonable and probable grounds exist in a drinking and driving case. It is not necessary to repeat all of those principles here, but para. 55 is particularly apt in these circumstances:
In assessing whether or not there are reasonable and probable grounds in any given case, trial judges are often improperly asked to engage in a dissection of the officer’s grounds by looking at each in isolation, opinions that were developed at the scene “without the luxury of judicial reflection”. However, it is neither necessary nor desirable to conduct an impaired driving trial as if it were a threshold exercise in determining whether the officer’s belief was reasonable. [Citations omitted.]
Conclusion
[15] The learned trial judge carefully reviewed the evidence before him and then instructed himself on the law, including the principles in Bush. He summed up the indicia of impairment and correctly reflected Officer Broadfoot’s evidence that the appellant’s speech was slow and deliberate. Although Officer Broadfoot may have been mistaken about the dictionary definition of “slurring”, the trial judge noted that by saying “speech which was slow and deliberate, which Broadfoot said some people would call slurring”. The learned trial judge observed the intoxilyzer video and found that it did not undercut Const. Broadfoot’s credibility. In finding that there was “slurring on the intoxilyzer video”, he had already instructed himself that that term, as expressed by Officer Broadfoot, could mean in some people’s minds, slow and deliberate speech.
[16] Given the definition of slurring as provided by Officer Broadfoot and acknowledged by the learned trial judge, I am not satisfied that there was a misapprehension of evidence. However, even if the trial judge was mistaken with respect to one detail of the officer’s testimony, it did not form the sole basis for the officer’s reasonable and probable grounds. As Binnie J. stated for the Supreme Court of Canada in R. v. Lohrer (2004), 2004 SCC 80, 193 C.C.C. (3d) 1 at p.25:
The misapprehension of the evidence must go to the substance rather than to the detail. It must be material, rather than peripheral, to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive, rather than disjunctive) that the errors, thus identified, must play an essential part, not just in the narrative of the judgment but “in the reasoning process resulting in a conviction”.
[17] When the learned trial judge’s decision is reviewed in its entirety, I am satisfied as to the correctness of his conclusion that Officer Broadfoot has reasonable and probable grounds to arrest the appellant.
[18] The appeal is dismissed.
MULLIGAN J.
Released: April 15, 2015