R. v. Leppanen, 2015 ONSC 2973

COURT FILE NO.: 913(P)/2015

DATE: 20150507

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. BILLY LEPPANEN

BEFORE: Justice Hill

COUNSEL: D. D’Iorio, for the Respondent

S. Shikhman, for the Applicant

HEARD: May 6, 2015

ENDORSEMENT

NATURE OF THE PROCEEDINGS

[1] Mr. Leppanen submitted two applications for consideration by the court:

(1) an application to extend the time for serving and filing a notice of appeal against conviction pursuant to s. 815(2) of the Criminal Code as well as Rules 40.03, 2.01, 3.02 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) (the “Rules”)

(2) an application to stay the sentence imposed at trial - pursuant to s. 261 of the Code and Rule 41.01 to stay a driving prohibition imposed at trial and a companion application pursuant to ss. 822(1) and 683(5)(a) of the Code and Rule 41.01 to stay the payment of the fine imposed at trial.

THE ISSUES

[2] After a two-day trial (December 1, 2014 and March 11, 2015), the applicant was acquitted of impaired operation of a motor vehicle and convicted of an “over 80” offence.

[3] Pursuant to Rule 40.05, the applicant had 30 days from his March 11, 2015 sentencing to serve and file his Notice of Appeal. He missed the April 12 deadline by a single day when, through a mistake as to the number of days in the month of March, the notice was not presented for filing until April 13.

[4] This court has a discretion to extend the time for the filing of a Notice of Appeal. The usual factors for consideration are:

(1) was there a bona fide intention to appeal within the prescribed period for launching the appeal?

(2) is there a reasonable explanation for the failure to serve and file the notice in time?

(3) can it be said that the appeal is arguable in the sense that it exceeds the threshold of being frivolous or without merit?

(4) would the respondent suffer any prejudice should an extension be granted?

[5] While these factors are instructive in the court’s exercise of discretion, and not exhaustive, there is to be sufficient flexibility to ensure that the overriding interests of justice are taken into account.

[6] As to the application to stay the sentence imposed by the trial court, these factors fall to be considered:

(1) is there an arguable appeal in the sense that it is not frivolous or without merit?

(2) what hardship would the applicant suffer if the court did not stay the payment of the fine and the driving prohibition?

(3) would public safety be unreasonably compromised should a stay be granted removing the applicant from the prohibition against operating a motor vehicle?

[7] Again, the overall interests of justice must guide the court’s exercise of discretion.

[8] When the applications were first scheduled to be argued on April 17, 2015, there was no material in the record in the form of a Notice of Appeal, trial transcripts, Legal Aid opinion letter or affidavit from trial counsel. This led the court to observe that:

…there is a framework for these types of applications which requires the court to consider a number of factors which include whether there is an arguable appeal…

The applicant was granted an adjournment to file a supplementary record which now includes the Notice of Appeal, transcript of evidence and the trial judge’s reasons for judgment.

[9] On behalf of the respondent, Mr. D’Iorio opposed the orders sought solely on the basis that the grounds of appeal are without merit simply inviting a retrial of the case.

[10] The submitted Notice of Appeal raises only the following grounds of appeal:

(1) The Learned Trial Judge erred in law in finding that the officer had reasonable and probable grounds to make the demand.

(2) The Learned Trial Judge erred in law in failing to properly consider whether the Crown has proven its case beyond a reasonable doubt even in the absence of counsel’s submissions.

[11] The Notice of Application provides further detail as to the alleged errors by the trial judge:

(4) In order to meet its burden (as breath tests constitute a warrantless search), the Crown has to lead evidence that satisfies the court that the officer making the demand had the subjective AND objective grounds to believe that the detainee is Impaired by Alcohol. The objectivity of the grounds is assessed by the Trial Judge. It is submitted that it is impossible for the Trial Judge to assess the objective reasonability of that belief unless significant context is provided and the evidence is such that meets its evidentiary burden.

(5) The Trial Judge must assess if the red rimmed eyes, the smell of alcohol and the unsteadiness on the feet were actually present. The only way to assess it is to look objectively at the circumstances in which the officer claimed to have observed those.

(6) In other words the question is NOT whether the factors the officer lists, ( in this case: unsteadiness red-rimmed eyes, smell of alcohol) amount to reasonable and probable grounds but rather whether the Crown has met its onus in establishing that those factors are actually present in each particular investigation.

(7) The Trial Judge simply listed the officer’s observations and stated that they amount to reasonable and probable grounds, at no point did the Trial Judge actually turned his mind to the whether the factors listed in support of the opinion were actually present and observed by the officer.

(8) In this case (as in many other impaired driving investigations) the officer simply listed the usual bouquet of indicia without engaging in any contextual description of the observations. Particularly, the unsteadiness on the feet had absolutely zero context to it and was never observed by the 2 civilian witnesses who were present and dealing with the accused prior to the arrival of the officer. Moreover, the civilian witnesses testified that the accused took out tools in preparing to change his tire. Clearly, there was nothing wrong with his motor skills (which presumably the unsteadiness on feet is referring too).

(9) The Trial Judge committed an error of law in not turning his mind to that and not providing any reasons as to why he accepted the officers testimony at face value.

(emphasis of original)

THE EVIDENCE AT TRIAL

[12] The trial was conducted as a blended proceeding with the trial judge hearing evidence on the s. 8 Charter application (alleging an unreasonable warrantless breath seizure following an arrest without reasonable and probable grounds) and the merits of the case itself.

[13] On September 21, 2013, Richard Doucette left the Firkin, a bar on the north side of Queen Street west of Highway 410 in the City of Brampton. The bar had closed and the witness and his friends were outside.

[14] According to Doucette, he observed a silver vehicle travelling west on Queen Street go through a red traffic light. Seconds later, after hearing a noise, he looked back toward the road and saw that vehicle against the curb facing east in the westbound lanes. The car was “pretty banged up”, with the two front tires “blown”. The witness thought that the vehicle had “jumped over the median”.

[15] Mr. Doucette testified that he and others rushed over to the car to check on the driver. The applicant was the sole occupant of the car. The witness recalled that he suggested to the applicant that he put the car in park and shut off the engine. In Doucette’s view, the applicant, who “seemed a little out of it”, stated that he had a couple of drinks that night.

[16] Mr. Doucette testified that once he determined the applicant was “intoxicated” and “drunk”, he asked someone who was present to call the police. In order to keep the applicant from leaving the scene, or getting hurt once he was out of the car on the roadway, he and his friend agreed to pretend to assist the applicant pending arrival of the police to change one of his tires by watching out for oncoming traffic. To the witness’ recall, the applicant then removed some tools from his trunk.

[17] To Doucette’s recall, his conversation with the applicant “was pretty brief” before the police arrived. The witness was not cross-examined as to why he believed the applicant was “drunk”.

[18] On September 21, 2013, Peel Regional Police Service (PRPS) Constable Claudio Rizzi, a junior officer, was partnered with Const. Anthony Crawford. At 2:19 a.m., the officers received a radio dispatch relating to a possible impaired driver. The call log screen to the cruiser computer provided this information:

02:17 911C Single car MVC on Queen W/O 410…Comp is not involved … says the veh lost its tire and is in the wrong lane of traffic …

911C near Firken/Red Lobster/McDonalds

911C driver is out of the veh appears no inj … AYCN 231 Volkswagen Jetta silver…

02:19 911C another caller saying the male is trying to drive on the flat tire

02:20 911C … veh going E/B in W/B lanes…

02:21 911C other drivers are trying to stop him

911C UK if intox but he “appears to be in a rush to leave”

911C tow on scene

02:22 911C tow is blocking the veh

911C comp says he wont be able to go anywhere now

[19] The officers arrived on scene at 2:23 a.m. On arrival, Const. Rizzi observed a silver Jetta facing east in the westbound lanes of Queen Street. It appeared that the vehicle had gone over the median and spun out after mounting the curb.

[20] The officer saw that one of the car’s front tires was broken off its panel and hanging. There was other observable damage to the vehicle.

[21] As the constable approached the Jetta, a person among the witnesses in the vicinity pointed to the applicant as the driver saying, “He’s all the way down there”. The officer saw the applicant walking toward the Firkin bar. The constable gave this in-chief testimony:

So once I spotted him, that’s when I went over there and I approached the male and I asked him to turn around and speak with me. And once he turned around, that’s when I made my observations of the red-rim eyes, a little bit of unsteadiness on his feet, and that’s when I smelled the alcohol coming off his breath when I asked him what his name was – after I asked him what his name was, sorry. And then at that time I felt like I had sufficient grounds to make an arrest for impaired driving.

To the witness’ recall, he interacted with the applicant for less than a minute before the arrest. The constable made an intoxilyzer demand following the arrest.

[22] In cross-examination, it was not suggest to Const. Rizzi that he did not make the observations he reported to the trial judge. Defence counsel (not Ms. Shikhman) raised with the witnesses:

(1) that he had not met or spoken to the applicant before September 21, 2013

(2) did not, prior to the arrest, discuss with the applicant whether he sustained any injuries in the motor vehicle accident such as a sore knee or a twisted ankle

(3) that persons who are tired, “who haven’t had a great deal of sleep”, may have red eyes

(4) that the witness understood him and was not belligerent.

[23] PRPS Const. Dan Scobie, a qualified breath technician, testified to receiving from Const. Rizzi the grounds upon which he based his arrest of the applicant for impaired operation of a motor vehicle:

Constable Rizzi had received a call from our dispatcher that a male was seen driving the – on the wrong side of the road with a flat tire, and that the witness had blocked in the motor vehicle. Constable Rizzi had attended.

The witness identified Mr. Rizzi [sic] as being the driver to Constable Rizzi. Constable Rizzi saw Mr. Leppanen walking away from the area of the motor vehicle. He approached Mr. Leppanen seemed unsteady on his feet, had the odour of alcoholic beverage on his breath, red, glossy eyes, speech seemed slow and there was some swaying when he was standing. He seemed to have a – a hard time following directions. And he formed the opinion that his ability to operate a motor vehicle had been impaired by the consumption of alcohol. And then upon me receiving that information I formed the same opinion.

[24] On administration of the intoxilyzer tests, the officer recorded respective readings at 3:46 a.m. and 4:08 a.m. of 219 and 212 mg alcohol/100 ml blood. The constable was asked only two questions in cross-examination relating to the officer’s assessment that the applicant’s speech was rated “good”.

[25] The applicant testified on his own behalf. He got up at 5:00 a.m. on September 21, 2013. After work, he and some coworkers decided to go to Boston Pizza in Georgetown to “just relax and talk”. He arrived at the restaurant sometime after 6:00 p.m. In the bar section of the restaurant, he consumed five or six beers. He had his last beer at 12:30 a.m. leaving Boston Pizza at 1:00 to 1:30 a.m. in order to drive home to Markham. On route, realizing that he needed gas, he pulled off Highway 410 southbound onto Queen Street. As he did so, he heard a loud bang at which point he lost control of his vehicle and spun out ending up facing the wrong direction.

[26] On the applicant’s evidence, he was “kind of in shock” and felt “a little banged up” because his knee had hit the dashboard and the seatbelt injured his shoulder. At first he tried to collect himself and get his bearings.

[27] The applicant testified that when he exited his vehicle he realized that he had had a flat tire. He observed that he had a flat tire and a broken tire and that the car could not be driven in that condition. He made no effort to change a tire.

[28] On the applicant’s evidence, unable to locate his cellphone, he began to walk in search of a payphone. He was then stopped and arrested by Const. Rizzi. In his in-chief testimony, the applicant gave this evidence:

Q. Now, at any time when you were interacting with the officer, did he ever ask you if you were injured, or if you had any issues in regard to any pains you were suffering from the accident?

A. No.

Q. And throughout the – this entire ordeal, while you were driving, was your ability to operate a motor vehicle impaired by alcohol?

A. No.

Q. Was the accident that you were involved in in any way affected by your earlier consumption of alcohol?

A. No.

[29] In cross-examination, the applicant stated that while it was possible that he was moving a little bit more slowly after the accident, he didn’t “notice” any mobility difficulties. Questioned by Crown counsel about his alcohol consumption, the applicant gave this evidence:

Q. Okay. Now, you indicated that you weren’t impaired when you were driving, but you also said you had, I think it was, five to six beers?

A. Correct.

Q. Okay. And is that a normal amount for you to drink and then drive?

A. Not normally, no.

Q. Okay. And after five to six beers and a long day at work, you weren’t feeling any of the effects?

A. I was tired.

Q. You were tired?

A. Yes.

Q. And do you think that that was maybe hastened along by the five to six pints?

A. No.

THE SUBMISSIONS AT TRIAL

[30] Crown counsel at trial described the over 80 charge as a straightforward case – “[i]t was completely routine”. Given the call log information dispatch, Rizzi’s observation of the single-car accident scene, the on-scene witness’ identification of the applicant as the driver, and the constable’s direct observations of the applicant, including “trademark” indicia of impairment, reasonable grounds existed to arrest for impaired operation of a motor vehicle and in turn make a breath sample demand. On this basis it was submitted that the s. 8 Charter application was without foundation.

[31] Given the uncontradicted intoxilyzer reading levels, and the evidence of the applicant operating a vehicle at the relevant time, the prosecution submitted that the charge was proven.

[32] Crown counsel at trial acknowledged that her case on the impaired operation charge was weaker.

[33] In closing submissions to the trial judge, defence counsel acknowledged that Const. Rizzi had the 911 call information. Counsel then stated:

DEFENCE COUNSEL: But as is often the case, while the officer certainly can rely on that insofar as some incident’s taken place and what it may or may not be about, the officer does need to be making some observations himself…

He basically was, that’s him over there, and he – he immediately approached Mr. Leppanen. I don’t recall Officer Rizzi talking about, you know, having some lengthy conversation of any – of any duration with these people that were there at the scene about what they’d seen at that point, and what they’d heard and what they’d done, and their interactions with Mr. Leppanen.

I seem to recall that they in fact said, that’s him, and Officer Rizzi basically went right over to Mr. Leppanen and began to talk to him about the situation, and shortly thereafter effected the arrest.

In our submission, in fact the officer knew an accident had taken place, he – he’d clearly seen the car up against the curb, he made that plain how he found it, and there – there was absolutely no discussion with him, or wondering from him or, you know, the condition that Mr. Leppanen was at.

It’s as if he just failed to take that into account, and just automatically assumed Mr. Leppanen was in perfectly good health, and any perhaps unsteadiness on his feet had nothing to do with an accident, I suppose.

But I would submit if that was the officer’s evidence, that a gentleman who’d just been in an accident and had red eyes was a little unsteady on his feet, that – that – that –

THE COURT: And smelled of alcohol.

DEFENCE COUNSEL: Yes.

[34] On the subject of a lack of reasonable grounds for the intoxilyzer demand, counsel submitted to the trial judge that “no grounds” existed. Counsel further argued that:

There’s the approved screening device, and that’s really the way they are supposed to be proceeding, if they fairly considered the situation, and they just can’t say in their own mind whether they do have reasonable grounds for impairment or not, and certainly this officer, in our submission, definitely too[k] the impermissible shortcut by simply looking at Mr. Leppanen and not even asking anything about his condition or anything of that nature, never having met the man before, there it is, sometime shortly after 2:00 in the morning, and on scant little evidence that – that could’ve led most normal people, in our submission, to a suspicion that the gentleman perhaps had to have had some – something to drink earlier in the evening, but indeed all the other indicators were that this gentleman had just been in an accident that perhaps wasn’t of his own making, and the officer failed to take any of that into account, and it was right there before him.

He didn’t really ask any questions about, like I said, Mr. Leppanen’s condition, or whether he was hurt, or anything of that nature, and yet this accident was right there before him.

So in our submission, Your Honour, in fact that – that Officer Rizzi did not have grounds to make an arrest for Impaired at that time. He didn’t have any sort of fulsome information from any other witnesses.

REASONS FOR JUDGMENT

[35] After a brief recess, the court delivered its reasons for judgment orally.

[36] The trial judge provides reasons for finding the applicant not guilty of the impaired operation charge.

[37] Turning to the issue of the constitutionality of the warrantless intoxilyzer search, the court concluded that Const. Rizzi had reasonable grounds for that breath demand. In its reasons, the court quoted extensively from Regina v. Bush (2010), 2010 ONCA 554, 259 C.C.C. (3d) 127 (Ont. C.A.). In addition, the court stated:

In this case, at the time the arresting officer, Constable [Rizzi], was dispatched to the scene of the accident, he was advised that there had been an accident involving a single motor vehicle which had lost its tire, the driver was trying to drive on the flat tire, that he was in a rush to leave the scene.

Upon arriving at the scene, Constable [Rizzi’s] attention was drawn to Mr. Leppanen by other witnesses. Mr. Leppanen was by that time walking away from the vehicle. He walked over to Mr. Leppanen and asked him to turn around, at which point he observed red rimmed eyes, some unsteadiness, and detected the odour of alcohol. At this point he decided he had grounds to believe that Mr. Leppanen was impaired, and placed him under arrest.

Counsel submits that Constable [Rizzi] should have spoken to the other witnesses and gathered more information before arresting him. As well, he ought to have considered whether Mr. Leppanen’s red rimmed eyes were caused by fatigue, and whether the unsteadiness was the result of Mr. Leppanen having been in an accident.

In R. v. Bush, at paragraph 57, the Court stated, “Consideration of the totality of the circumstances includes the existence of an accident. However, that the accident could have caused some of the indicia relied upon when they could also have been caused by the consumption of alcohol does not mean the officer has to totally eliminate those indicia from consideration. R. v. Duras [2009] ONCA 740, at paragraph 2. They have to be considered along with all the other indicia, in light of the fact that there may be another explanation.”

Then at paragraph 58, “Here the investigating officer testified that he took into consideration that the respondent had been in an accident. In assessing whether reasonable and probable grounds objectively existed, the trial judge appropriately considered that there had been an accident. However, that there might be another explanation for some of the facts the officer properly took into account informing his opinion of impairment to drive, did not eliminate the indicia or render them unreliable.”

While I agree that it would have been preferable if Constable [Rizzi] had conducted a more comprehensive investigation before placing Mr. Leppanen under arrest, in the circumstances of this case I am satisfied that he had the requisite reasonable and probable grounds to make the arrest.

Mr. Leppanen had been involved in an accident, had apparently attempted to drive the car on a flat tire, was unsteady on his feet, had red rimmed eyes, and smelled of alcohol. The application to exclude the breath results is dismissed. There is no suggestion that the results are otherwise inadmissible. Mr. Leppanen is accordingly found guilty on Count 2.

ANALYSIS

[38] Before turning to the applicant’s submissions as to why his appeal is an arguable one on the merits, the legal landscape for the argument may be summarized as including these principles:

(1) while a trial judge is owed deference in relation to his or her factual findings, whether those findings support the existence of reasonable grounds is a question of law, and as such is reviewable on a correctness standard: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 60; R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20

(2) reasonable grounds to arrest or search has both a subjective and an objective component: Proulx v. Quebec (A.G.), 2001 SCC 66, [2001] 3 S.C.R. 9, at para. 20; R. v. Storrey (1990), 1990 CanLII 125 (SCC), 53 C.C.C. (3d) 316 (S.C.C.) at p. 324

(3) the existence of reasonable and probable grounds to make a s. 254(3) Code breath sample demand is a statutory and constitutional precondition: The Queen v. Bernshaw (1995), 1995 CanLII 150 (SCC), 95 C.C.C. (3d) 193 (S.C.C.), at p. 212

(4) as observed in Bush, at para. 38:

The officer’s belief must be supported by objective facts: R. v. Berlinski, 2001 CanLII 24171 (ON CA), [2001] O.J. No. 377 (C.A.) at para. 3. The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241 at p. 250

(5) the dynamics at play in an arrest situation are often very different than those which operate on an application for a search warrant (R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743 (C.A.), at para. 18) – a police officer must make quick but informed decisions as to whether reasonable grounds exist: R. v. Smith (1996), 1996 CanLII 1074 (ON CA), 28 O.R. (3d) 75 (C.A.), at pp. 68, 74-5

(6) as to the degree of a motorist’s perceived impairment by alcohol, in Bush, at paras. 47-8, the court stated:

There is no necessity that the defendant be in a state of extreme intoxication before the officers has reasonable and probable grounds to arrest: R. v. Deighan, [1999] O.J. No. 2413 (C.A.) at para. 1. Impairment may be established where the prosecution proves any degree of impairment from slight to great: R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 12 O.R. (3d) 90 (C.A.), aff’d 1994 CanLII 94 (SCC), [1994] 2 S.C.R. 478. Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road: Censoni at para. 47.

The test if whether, objectively, there were reasonable and probable grounds to believe the suspect’s ability to drive was even slightly impaired by the consumption of alcohol: see R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.), aff’d 1994 CanLII 94 (SCC), [1994] 2 S.C.R. 478; Moneno-Baches and Wang, at para. 17.

(7) in the context of a breath demand, the reasonable and probable grounds standard is not an onerous test: Bush, at para. 46; R. v. Wang, 2010 ONCA 435, at para. 17; R. v. McClelland (1995), 1995 ABCA 199, 98 C.C.C. (3d) 509 (Alta. C.A.), at pp. 515-517

(8) in R. v. Censoni (2001), 22 M.V.R. (4th) 178 (Ont. S.C.J.), at para. 47, the court stated:

The fact that there may be an explanation for the smell of alcohol does not take away from the existence of grounds for believing alcohol has been consumed: Regina v. Lindsay, 1999 CanLII 4301 (ON CA), [1999] O.J. No. 870 (C.A.) at para. 2 per curiam. The fact that others at the scene may not smell the alcohol does not necessarily render the officer’s observations unreliable: Regina v. Colbourne (2001), 2001 CanLII 4711 (ON CA), 157 C.C.C. (3d) 273 (Ont. C.A.) at 288 per Doherty J.A.

(9) an inquiry into the existence of reasonable grounds “must be fact-based, flexible, and grounded in common sense and practical everyday experience” (Chehil, at para. 29) and reasonable and probable grounds does not require satisfaction on a balance of probabilities: Mugusera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at para. 14; R. v. Spence, 2011 BCCA 280, at para. 31; R. v. Loewen (2010), 2010 ABCA 255, 260 C.C.C. (3d) 296 (Alta. C.A.), at para. 18 (affd 2011 SCC 21, [2011] 2 S.C.R. 167); R. v. Jacobson (2006), 2006 CanLII 12292 (ON CA), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22; Florida v. Harris, 133 S. Ct. 1050, 1052 (2013) – and see R. v. Amare, 2014 ONSC 4119, at para. 83 (“the standard of reasonable probability applied to the totality of the circumstances, considering the relevant facts cumulatively, where credibly-based probability replaces suspicion and possibility, does not demand that police officers “always be correct, but that they always be reasonable”: United States. v. Clutter, 674 F.3d 980, 983 (8th Cir. 2012)”)

(10) the objective existence of grounds of belief must be assessed against the totality of circumstances and, as stated in Chehil at paras. 32-34, in terms also applicable to reasonable and probable grounds:

Further, reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors.

Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors. The totality of the circumstances, including favourable and unfavourable factors, must be weighed in the course of arriving at any conclusion regarding reasonable suspicion. As Doherty J.A. found in R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743 (C.A.), at p. 751, “[t]he officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable”. This is self-evident.

However, the obligation of the police to take all factors into account does not impose a duty to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations.

(11) when a peace officer assesses the circumstances he or she is confronted with, in light of the officer’s training and experience, the collective of circumstances is to be considered, not isolated factors shorn of context – this is consistent with the general rule respecting the evaluation of circumstantial evidence: see R. v. Hall, 2015 ONCA 198, at paras. 5-6

(12) there is no legal obligation on a police officer investigating an impaired operation matter to use a roadside screening device demand before issuing an intoxilyzer demand as part of formulating reasonable grounds: R. v. Troester, [2000] O.J. No. 2268 (C.A.), at para. 8.

[39] The learned trial judge had the benefit of organized closing submissions from counsel. Mr. Leppanen was represented by presumptively competent counsel who conducted the case as he saw fit.

[40] This was a focused trial in the Ontario Court of Justice, a busy trial court where jurists have particular expertise in Charter issues arising in the context of drinking/driving cases and are routinely compelled to provide ex tempore oral judgements. It is accepted that a trial judge need not review the entirety of the evidence provided his or her path of reasoning is clear and the key issues as litigated at trial are discussed.

[41] It is not submitted that the trial judge misunderstood the legal test of reasonable and probable grounds or that the factors subjectively perceived by Const. Rizzi to amount to reasonable grounds fell short of the requisite standard.

[42] On behalf of the applicant, Ms. Shikhman tracked the arguments summarized at para. 10 above and further submitted that:

It is not the defence position that there were not enough factors to warrant reasonable and probable grounds. In fact, if those factors are established to have existed, particularly the unsteadiness on the feet, the smell of alcohol and the accident … if the Crown met its onus of satisfying the court that these factors actually existed, then the trial judge’s analysis is correct in terms of the fact that it amounted to reasonable and probable grounds.

It is my respectful submission that accepting that…list of factors, in the absence of the officer providing significant context to convince the trier of fact, on the balance of probabilities, that those factors actually existed objectively…

The failure of the trial judge to really assess whether the evidence provided sufficient context to establish on an evidentiary basis these factors amounts to an error of law.

[43] There was effectively no cross-examination of Doucette or the police witnesses to suggest that the factors relied upon by Const. Rizzi did not actually exist. Doucette concluded that the applicant was drunk but was not questioned about the foundation for that compendious interpretation of the applicant’s condition. Defence counsel never suggested to Const. Rizzi that he was wrong about the existence of red eyes, alcohol odour, or some unsteadiness on the part of the applicant.

[44] At trial, as here, the defence accepted that Const. Rizzi subjectively believed he had reasonable grounds to arrest. The attack at trial on the existence of reasonable grounds in an objective sense was on the basis of the officer having limited information on account of allegedly sketchy pre-arrest investigation as well as the asserted alternative explanations for factors the constable relied upon – a flat tire could have been the cause of the accident, being tired could explain the redness of the eyes, and some unsteadiness on the part of the applicant could have been caused by involvement in the accident.

[45] In these circumstances, the applicant cannot reasonably submit that the trial judge engaged in error on the basis of the context of the relevant factors not being sufficiently apparent in the evidence to have permitted the trier of fact to conclude that there was evidence that the grounds relied upon by the officer had objective justification.

[46] The trial judge accepted Rizzi’s evidence. He was entitled to do so. There is no evidence in this record of an uncritical acceptance of the existence of the factors relied upon by the officer in arresting the applicant nor any indication that the trial court delegated the objective assessment to simple reliance on the officer’s subjective assessment of the circumstances.

[47] Much was made in oral submissions here as to whether the trial court assessed all of the evidence touching upon whether the applicant was unsteady on his feet. The trial judge was undoubtedly alive to the evidence touching upon whether the applicant could have been “a little bit” unsteady on his feet.

[48] There is no basis on the record here to submit that the factual findings of the trial judge are unreasonable or unsupported by the evidence. The trial judge’s reasons are organized, succinct and responsive to the issues raised before him.

[49] These applications were adjourned to permit the filing of a full record and preparation for argument to address whether it could be said that an arguable appeal exists. There is no suggestion that there are any other grounds of appeal beyond those identified in the Notice of Appeal.

[50] The threshold as to whether it has been demonstrated that an arguable appeal exists is a modest and relatively low standard. Most appeals pass this threshold. That said, based on the record here, there is no merit in the grounds of appeal and accordingly the appeal would have no chance of succeeding.

CONCLUSION

[51] The applications are dismissed.

Hill J.

Date:May 7, 2015