ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Jelena Vlacic, for the Respondent
Respondent
- and -
LUCYNA HEJMO
Doug Lent, for the Appellant
Appellant
HEARD: April 7, 2015 at Brampton
DECIDED: May 19, 2015
REASONS FOR JUDGMENT
[On appeal from the judgment of Keaney J.
dated April 3, 2014]
André J.
[1] The Appellant appeals her conviction on April 3, 2014 of the charge of impaired driving pursuant to s. 253(1)(a) of the Criminal Code of Canada (“the Code”). She submits that the trial judge made three errors in law namely:
He erroneously concluded that he could rely on the presumption in s. 258 of the Code because the breathalyzer tests were taken “as soon as practicable”.
He erroneously concluded that the arresting officer had reasonable and probable grounds pursuant to s. 254(3) of the Code to make a demand for the Appellant to provide a suitable breath sample as would have enabled the officer to perform a proper analysis of the blood alcohol concentration in her body.
He erroneously concluded that the Crown had proven beyond a reasonable doubt that the Appellant’s ability to operate a motor vehicle had been impaired by the consumption of alcohol.
[2] The Crown submits that the trial judge committed no error in finding that the Crown had proven Ms. Hejmo’s guilt beyond a reasonable doubt.
[3] For the reasons provided below the appeal is dismissed.
Background Facts
[4] On April 8, 2012 Constable John Lee received a radio call advising that there was a female “passed out” in the driver’s seat of a motor vehicle at the intersection of Eglinton Avenue and Creditview Road in the City of Mississauga. He observed Ms. Hejmo in the driver’s seat of a brown Buick SUV which had been stopped in the curb lane eastbound at the intersection in question. The gear shift of the vehicle was in the drive position and the keys were in the ignition. The rear brake lights of the vehicle were on.
[5] The officer repeatedly attempted to wake up the Appellant by yelling, knocking on the window and activating his cruiser’s siren and horn. To no avail. Another officer eventually had to break the passenger side window with his baton to allow Constable Lee to gain access to the unresponsive Ms. Hejmo.
[6] The officer then opened the driver’s door and shook Ms. Hejmo. She appeared uninjured but confused. An odour of alcohol emanated from her breath. The officer escorted her to his cruiser. She stumbled several times. She used her vehicle for support and swayed from left to right.
[7] Constable Lee, who first arrived at the scene at 3:43 a.m., formed the opinion at 3:48 a.m. that Ms. Hejmo’s ability to operate a motor vehicle had been impaired by the consumption of alcohol.
[8] He then asked Ms. Hejmo to occupy the back seat of his cruiser. Ms. Hejmo spoke incoherently at times. She could not formulate complete sentences. The officer read a breathalyzer demand to Ms. Hejmo at 3:51 a.m. After some explanation she indicated that she understood the demand.
[9] Cst. Lee departed the scene at 3:54 a.m. and arrived at 11 Division at 4:01 a.m. Upon his arrival there were two more police cruisers ahead of him in the sally-port. He waited in the sally-port from 4:01 a.m. to 4:22 a.m.
[10] The officer contacted duty counsel at 4:35 a.m. and again at 5:00 a.m.
[11] Duty counsel called back at 5:01 a.m. and Ms. Hejmo spoke to duty counsel until 5:09 a.m.
[12] The officer turned Ms. Hejmo over to a breathalyzer technician at 5:10 a.m. Ms. Hejmo was returned to Cst. Lee at 6:02 a.m.
Analysis
[13] The three issues raised in this appeal are as follows:
Did the trial judge err in finding that the breathalyzer tests were taken as soon as practicable?
Did the trial judge err in finding that Constable Lee had reasonable grounds to make a breath demand to Ms. Hejmo?
Did the trial judge err in finding that the Crown had proven Ms. Hejmo’s guilt of impaired care and control beyond a reasonable doubt?
Issue No. 1 – Did the trial judge err in finding that the breathalyzer tests were taken as soon as practicable?
[14] In determining this question, I am guided by a number of principles which emerge from the relevant caselaw regarding the appropriate standard of appellate review in cases involving this issue.
[15] In R. v. Cargill, 2014 ONSC 3897, [2014] O.J. No. 3078 (S.C.J.), at paragraph 11, the court noted that:
The “as soon as practicable” requirement set out in the Criminal Code is a legal standard. Whether the trial judge applied the standard correctly is a question of law. On appeal it is subject to review on a standard of correctness;
A trial judge must make findings of fact in order to apply that legal standard. Findings of fact are subject to review on a standard of palpable and over-riding error;
The Crown must prove beyond a reasonable doubt that the police took the breath samples as soon as practicable. Whether the Crown has called enough evidence to meet that burden is a question of fact.
[16] Second, the requirement that breath samples must be taken as soon as practicable does not require that they be taken immediately or as soon as possible. The Crown is not required to account for every minute of delay while an accused is detained in custody. Rather, the test for determining whether the tests were taken as soon as practicable is whether the police officers acted reasonably. See R. v. Vanderbruggen, 2006 CanLII 9039 (ON CA), [2006] O.J. No. 1138 (Ont. C.A.), at paras. 12-13.
[17] Third, in cases where an accused made an informed and unequivocal waiver of rights to counsel and the police nevertheless chose to contact duty counsel, the delay occasioned by the police’s decision is unreasonable and unexplained delay. R. v. Davidson, [2005] O.J. No. 3474 (S.C.J.), at para. 12.
[18] In determining whether or not delay in circumstances where a detainee has unequivocally waived his or her rights to counsel constitute unreasonable delay, the court must consider the following:
The first question is whether there has been a clear and unequivocal waiver by the accused of the right to counsel.
If the waiver was not clear and unequivocal it is reasonable for the police to contact duty counsel in order to avoid later being confronted with the argument that the accused’s right to counsel was infringed;
If the degree of the accused’s intoxication is such as to create a reasonable basis for the police to conclude that the right to counsel was not fully comprehended it would be reasonable for the police to contact duty counsel to avoid a subsequent allegation of a breach of the right to counsel;
If the waiver is clear and unequivocal it is not reasonable, as a matter of law, for the police to contact duty counsel thereby delaying the administration of the breath tests. Where the delay occasioned by the call to duty counsel is unreasonable it is effectively unexplained;
The innocence of the police motive in placing the call to duty counsel is irrelevant, as an accused should not be forced to speak to counsel where he or she clearly wishes to waive that right;
There is no requirement that an accused repeat or persist in a waiver or express the waiver in strong terms. As in other areas of the law, “no means no”;
The fact that an accused ultimately takes a call from duty counsel does not, by itself, operate as an estoppel of the waiver. All the surrounding circumstances must be examined to discern if the waiver has been withdrawn.
Davidson, at para. 21.
Application of the Law to the Facts
[19] The Appellant advances two arguments in support of her position that the breathalyzer results were not taken as soon as practicable. First, that the officer should have proceeded to or made inquiries about going to another division because of the delay in the sally-port rather than wait 21 minutes. Second, that given the Appellant’s response to the question from the arresting officer regarding whether she wished to speak to counsel, the delay between 4:35 a.m. when he called duty counsel and 5:09 a.m., when the Appellant ended her conversation with duty counsel, supports a finding that the tests were not taken as soon as practicable.
[20] In my view, the learned trial judge applied the correct test in determining that the breathalyzer tests were taken as soon as practicable. He indicated that s. 258 requires only that the test be taken within a reasonably prompt time and that the appropriate test is one of reasonableness.
[21] Cst. Lee testified that the dispatcher directed him to go to 11 Division which he did. Two other cruisers were ahead of him in the sally-port. The officer testified that the 21 minute wait was a shorter period than the time it would have taken for him to drive to any other division. In those circumstances, the officer’s decision to essentially await his turn in the line was reasonable in the circumstances.
[22] Can the delay caused by Cst. Lee’s decision to contact duty counsel on behalf of Ms. Hejmo be construed as “unreasonable and unexplained” delay based on the criteria set out in Davidson?
[23] In my view, it should not. The officer conceded that he believed that Ms. Hejmo understood the rights and cautions and demand he had read out to her and yet he nevertheless made the decision to contact duty counsel for her.
[24] The circumstances of this case justified the officer’s decision to do so. The officer had earlier come upon Ms. Hejmo’s vehicle, which was stopped in a live lane of traffic. She had been slumped over the steering wheel and had been unresponsive to his knocking on the door and the sirens of his cruiser. After she stepped out of her vehicle, she stumbled several times. Her speech was noticeably slurred while she sat in his cruiser. Her breath, the officer testified, smelt heavily of alcohol and she appeared confused.
[25] It was reasonable for Constable Lee in these circumstances to contact duty counsel on Ms. Hejmo’s behalf despite her monosyllabic response to his question to her about speaking to a lawyer. It clearly appeared to him that Ms. Hejmo’s state of intoxication required him to contact duty counsel on her behalf. His decision to do so, in my view, was reasonable in the circumstances of this case.
Issue No. 2 – Did Cst. Lee have reasonable and probable grounds to make a s. 254(3) demand to Ms. Hejmo?
[26] Section 254(3) of the Code sets out the test for when a police officer may demand a breath sample from a detainee:
(3) Where a peace officer believes on reasonable and probable grounds that a person is committing, or at any time within the preceding two hours has committed, as a result of the consumption of alcohol, an offence under section 253, the peace officer may, by demand made to that person forthwith or as soon as practicable, require that person to provide then or as soon thereafter as is practicable
(a) such samples of the person's breath as in the opinion of a qualified technician,
are necessary to enable proper analysis to be made in order to determine the concentration, if any, of alcohol in the person's blood, and to accompany the peace officer for the purpose of enabling such samples to be taken.
[27] Furthermore, in R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 S.C.R. 254, the Supreme Court of Canada noted at paragraph 48 that s. 254(3) “requires that the police officer subjectively have an honest belief that the suspect has committed the offence and objectively, there must exist reasonable grounds for this belief…” The court further noted at paragraph 46:
…The decision as to whether a peace officer believes on reasonable and probable grounds that an offence is being committed and, therefore, that a demand is authorized under s. 254(3) of the Criminal Code, R.S.C., 1985, c. C-46, must be based on the circumstances of the case. It is, therefore, essentially a question of fact and not one of pure law.
[28] In R. v. Stellato 1993 CanLII 3375 (ONCA) the Ontario Court of Appeal noted that any degree of impairment, however slight, may be sufficient for a finding of guilty of impaired operation of a motor vehicle.
[29] In R. v. Rhyason 2007 SCC 39, [2007] 3 S.C.R. 108 at 113, the Supreme Court of Canada noted that “a trial judge’s reasons should be read as a whole, not held to some abstract standard of perfection.”
[30] The court further noted that:
It is neither expected nor required that the trial judge’s reasons provide the equivalent of a jury instruction.
R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26, at para. 55; see also, R. v. Gagnon, [2006] 1 S.C.R. 621, 2006 SCC 17, at para. 19
[31] Mr. Lent submits that Cst. Lee arrested Ms. Hejmo within two minutes of his arrival at the scene of the arrest. He points to the absence of any slurred speech, smell of alcohol on Ms. Hejmo’s breath, unusual conduct or bad driving in support of his contention that the officer lacked the requisite legal grounds to have arrested Ms. Hejmo for impaired care and control of a motor vehicle.
[32] Mr. Lent also submits that the trial judge’s analysis of his constitutional argument is virtually unintelligible and does not constitute adequate reasons for the court’s decision on this issue. Specifically, he points to the following passage on page 11 of the “Reasons for Judgment”:
I would not give effect to the Charter arguments. I conclude that there was a breach of the accused’s right at s. 7 or 8, the accused’s right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice were not breached. The warrant was search or seizure by way of breath samples was not unreasonable in all of the circumstances. There was not such unreasonable delay in the taking of the samples as to deprive the Crown of reliance on the presumptions set out in s. 258.
[33] In reviewing the trial judge’s decision, particularly the passage relied upon by Mr. Lent, I find that the misstatement in the second sentence to the effect that there “was a breach of the accused’s right at s. 7 or 8”, is not sufficiently undermining as should warrant appellate intervention. Reading the judgment as a whole, it is clear that the trial judge intended to say that there was no Charter breach in the case. Indeed, the first sentence in the quoted passage says so explicably. The trial judge later stated that the taking of Ms. Hejmo’s breath samples was not unreasonable in the circumstances, in a clear reference to s. 8 of the Charter. While the passage may not be a model of perfection in terms of the trial judge’s duty to give reasons, he clearly sought to convey that he did not find any merit in the Charter application.
[34] There was ample evidence for this conclusion. This evidence included the following:
Cst. Lee’s testimony that he attempted to wake up Ms. Hejmo by yelling, knocking on her window, and activating his cruiser’s siren and air horn with negative results.
The location of the car with its brake lights on and engine running.
The smell of alcohol that emanated from Ms. Hejmo’s breath.
Ms. Hejmo’s watery eyes.
The fact that she stumbled several times after exiting the vehicle.
The fact that Ms. Hejmo used her vehicle for support while she walked.
[35] The constellation of all those facts was sufficient, both on a subjective and objective basis, to have provided the officer with the requisite reasonable and probable grounds to arrest Ms. Hejmo.
[36] It does not matter that there may have been an innocent explanation for Ms. Hejmo’s watery eyes and her unsteadiness on her feet at the scene of the arrest. It is the agglomeration of all the officer’s observations that were sufficient to give him the requisite grounds for arresting Ms. Hejmo.
Issue No. 3 – Has the Crown proven the charge of impaired care and control and excess blood alcohol beyond a reasonable doubt?
[37] Ms. Hejmo insists that the Crown has not. Her counsel submits that the trial judge gave insufficient weight to the fact that once fully awake Ms. Hejmo’s had no difficulty moving about or understanding what the officer stated to her. He also submits that the trial judge failed to concede that Ms. Hejmo’s apparent signs of impairment were equally consistent with an individual who had awakened from a deep slumber. He also submits that a video which recorded Ms. Hejmo’s movement and speech in the breathroom did not reveal any mobility or speech difficulties that Cst. Lee claimed Ms. Hejmo to have had.
[38] It is beyond dispute that the test for impairment set out in Stellato does not relieve the Crown of its responsibility of proving the case against Ms. Hejmo beyond a reasonable doubt. The Crown was required to prove beyond a reasonable doubt that Ms. Hejmo was impaired by alcohol when she had care and control of her motor vehicle.
[39] The Appellant does not dispute that at the time Cst. Lee investigated her, she had care and control of the vehicle. The evidence of care and control includes the following:
The location of the vehicle in the middle of a live lane of traffic at a busy intersection;
Ms. Hejmo sat in the driver’s seat of her vehicle;
The vehicle’s ignition was on and the keys were in the ignition;
The vehicle was locked with the only occupant being Ms. Hejmo;
The gear shift was in the drive position; and
The rear brake lights were on.
[40] There is also no dispute that to the extent that the breathalyzer tests were taken as soon as practicable, then Ms. Hejmo must be found guilty of excess blood alcohol while having care and control of a motor vehicle.
[41] Regarding the offence of impaired care and control the trial judge concluded at page 11 of his Reasons for Judgment that:
Irrespective the impairment and the circumstances in which the accused was found asleep at the wheel of her car with the presence of alcohol in her body, with the difficulty awakening her, I am satisfied that the test for the impairment set out in R. v. Stellato, that is, any level of impairment, however slight, has been met. The accused can be found guilty on either count.
[42] In assessing whether the trial judge committed reversible error in concluding that there was evidence to find Ms. Hejmo guilty of impaired care and control, I am reminded of the test for an unreasonable verdict enunciated by the Supreme Court of Canada in R. v. Biniaris, 2000 SCC 15, 1 S.C.R. 381, at paragraph 36:
It requires the appeal court to determine what verdict a reasonable jury, properly instructed, could judicially have rendered at, and, in doing so, to review, analyze and, within the limits of appellate disadvantage, weight the evidence.
[43] Furthermore, in considering whether the trial judge’s decision was unreasonable, the issue to be decided is not whether the evidence at trial exclusively supported a conclusion that Ms. Hejmo’s ability to drive was impaired by alcohol but whether it was open to him to come to that conclusion on the whole of the evidence. See R. v. Moreno-Baches, 2007 ONCA 258 at para. 3.
[44] While the trial judge did not weigh the evidence regarding Ms. Hejmo’s mobility and speech in the breathroom, it was open to him to find that the Crown had proven Ms. Hejmo’s guilt on this charge beyond a reasonable doubt.
[45] It was also open to the trial judge to attribute Ms. Hejmo’s watery eyes and grogginess after she was awakened to the consumption of alcohol rather than to fatigue. The evidentiary basis for his decision to do so was the heavy smell of alcohol which Cst. Lee detected on her breath.
[46] In any event, Ms. Hejmo could be convicted even if her impaired condition was attributable to both fatigue and alcohol consumption. See R. v. Pelletier (1989), 1989 CanLII 7166 (SK QB), 51 C.C.C. (3d) 161 (Sask. Q.B.).
[47] Additionally, the trial judge could have taken the breathalyzer results into account as part of the evidence to be considered in his decision whether the Crown had proven the charge of impaired care and control beyond a reasonable doubt. See R. v. Dinelle (1986), 1986 CanLII 7014 (NS CA), 44 M.V.R. 109 (N.S.C.A.). Similarly, the trial judge was entitled to consider the location of the vehicle and Ms. Hejmo’s position within it as evidence which was pertinent to the issue regarding impairment.
[48] As already noted, the vehicle was stopped in a live lane of traffic with the ignition on. Ms. Hejmo was slumped over the steering wheel. Her eyes were watery and an odour of alcohol emanated from her breath. Subsequent breathalyzer tests showed that her blood alcohol concentration was well in excess of the legally permissible limit. Even if her mobility and speech in the breathalyzer room was not as described by Constable Lee when he met Ms. Hejmo at the scene of the arrest, the evidence meets the threshold established in Stellato.
Disposition
[49] For the above reasons the appeal is dismissed.
André J.
Released: May 19, 2015
CITATION: R. v. Hejmo, 2015 ONSC 2641
COURT FILE NO.: SCA(P) 341/14
DATE: 20150519
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
LUCYNA HEJMO
Appellant
REASONS FOR JUDGMENT
André J.
Released: May 19, 2015