R. v. MacCoubrey, 2015 ONSC 3339
COURT FILE: SCA(P) 312/14
DATE: 2015 05 26
ONTARIO
SUPERIOR COURT OF JUSTICE
(Summary Conviction Appeal Court)
B E T W E E N:
HER MAJESTY THE QUEEN
A. M. Morris, for the Appellant
Appellant
- and -
MICHAEL MACCOUBREY
D. Lent, for the Respondent
Respondent
HEARD: May 22, 2015 at Brampton
REASONS FOR JUDGMENT
[on appeal from acquittals on April 30, 2014
by Justice L.A. Botham]
HILL J.
INTRODUCTION
[1] At trial, Michael MacCoubrey was acquitted of charges of impaired operation of a motor vehicle and operating a motor vehicle while having a blood alcohol concentration exceeding 80 mg. alcohol/100 ml. blood. The Crown appeals these verdicts.
[2] The one-witness trial proceeded as a blended proceeding with the trial judge hearing evidence relevant to the merits of the allegations as well as the respondent’s application to exclude evidence on account of alleged breaches of ss. 8, 10(a) and 10(b) of the Charter.
FACTUAL BACKGROUND
[3] At about 9:15 p.m. on May 8, 2013, Ontario Provincial Police Constable Roberto Visconti received a radio call of “a traffic complaint” about a GMC Sierra pick-up truck with a particular licence plate number.
[4] At 9:19 p.m., the officer spotted the vehicle travelling eastbound in the collector lanes of Highway 403 approaching Highway 410. The roads were dry. Const. Visconti followed the pick-up truck in the passing lane for about half a kilometre observing the vehicle swerving within its own lane. The officer could not say how many times he saw swerving. On two occasions, the vehicle crossed over the centre or dotted line of the roadway. At trial, the officer was unable to say how far the truck strayed over the line. The respondent’s truck did not interfere with any other vehicles. There was nothing out of the ordinary in terms of the truck’s speed.
[5] Const. Visconti observed the right turn signal of the respondent’s vehicle activated as it made a lane change to the curb lane. As he followed the truck for about a kilometre, the officer saw noticeable swerving within the lane. He saw no reason for the swerving.
[6] When the constable activated the emergency lights of his cruiser, the respondent pulled to the shoulder of Highway 410 northbound at 9:21 p.m.
[7] As Const. Visconti stood at the driver’s window he detected a strong odour of alcohol coming from inside the vehicle. As he conversed with the respondent, the officer sensed a strong smell of an alcoholic beverage on the driver’s breath.
[8] It was dark outside. When the officer requested production of the respondent’s driver’s licence, the respondent withdrew a stack of 25 to 30 business, credit and other cards from his wallet before handing the officer an Ontario Health Card. After the constable repeated his request for a driver’s licence, the respondent spent some time trying to locate his licence although the officer saw him pass by the document more than once. The licence was ultimately produced.
[9] Const. Visconti informed the trial judge that he also noted the respondent’s eyes to be watery and his hands shaking. The respondent’s face was not flushed and his speech was not slurred. When asked to step out of his vehicle, the respondent attempted to do so while still wearing his seatbelt. Once he disengaged the belt, the respondent stepped onto the paved roadway where he appeared unsteady on his feet. When directed to walk to the passenger side of the cruiser, the respondent was observed to be unsteady and not walking in a straight line. The constable did not see the respondent touch either vehicle in an effort to keep his balance. The officer did not have the respondent perform any sobriety tests.
[10] Const. Visconti agreed in cross-examination at trial that the respondent complied with directions to widen his stance and to place his hands behind him to facilitate handcuffing.
[11] At trial, Const. Visconti testified that at 9:26 p.m. he “formed … grounds that the male was impaired by alcohol … and placed him under arrest for impaired operation of a … motor vehicle”. Asked in-chief to repeat part of the chronology of events, the witness twice stated that he had “reasonable and probable grounds to suspect that the male was impaired by alcohol”. At 9:26 p.m., the officer arrested the respondent for impaired operation of a motor vehicle.
[12] According to Const. Visconti, at 9:28 p.m., he advised the respondent of “his rights to counsel” read verbatim from his notebook. Immediately after this testimony, the prosecutor sought clarification as to whether there was a live issue of non-compliance with s. 10(b) of the Charter to which defence counsel responded, “I don’t anticipate pursuing a section 10(b) … Charter application”. When Crown counsel asked the constable for the respondent’s reply when “asked if he wished to have a lawyer”, the witness testified that the respondent stated, “I’m not impaired”. Crown counsel questioned whether the respondent “ask[ed] for any specific lawyer” to which the witness respondent, “He did not ask for a specific lawyer”.
[13] Crown counsel at trial had Const. Visconti read the text of the caution about the right to silence read to the respondent at 9:28 p.m., ending with the words “Do you understand?”, to which the respondent is said to have responded, “I’m not impaired”. At 9:29 p.m., the constable read a breath demand to the respondent ending with the words “Do you understand?” The recorded response of the respondent was, “Whatever, I’m not impaired”.
[14] In cross-examination, this exchange occurred:
Q. And all of the rights to counsel, you thought he understood those, as well?
A. Correct.
Q. And the breath demand. You thought he understood that?
A. Correct.
Q. And the two cautions that you read him, you thought he understood those?
A. Correct.
[15] Const. Visconti left the scene at 9:30 p.m. and arrived at the OPP Port Credit detachment at 9:44 p.m. After processing through the booking area, the respondent was placed in a holding cell at 9:55 p.m.
[16] At 10:00 p.m., Const. Visconti contacted duty counsel. After a 10:16 p.m. call-back, and the respondent’s removal from the cells at 10:17 p.m., he spoke privately to duty counsel between 10:18 and 10:28 p.m.
[17] The respondent was next taken to the breathroom for the intoxilyzer testing. At trial, a certificate of a qualified technician was entered as an exhibit pursuant to s. 258(1) (g) of the Criminal Code recording breath sample tests at 10:39 and 11:03 p.m. with identical results of 140 mg. alcohol/100 ml. blood.
[18] Asked in-chief how the respondent’s “performance or observations” in the breathroom compared to the “street scene”, Const. Visconti answered that, “They were consistent”. In cross-examination, the witness agreed that he had no notation of the respondent experiencing any unusual motor movement difficulties or unsteadiness on his feet at the detachment.
Submissions At Trial
The Prosecution
[19] Crown counsel submitted to the trial judge that when the respondent was “given rights to counsel” he did not waive those rights – “there is no evidence that the [r]espondent understood anything”. Counsel added that when asked, “Do you want to speak to counsel?”, the respondent’s only response was, “I’m not impaired”. On the evidence, there was no clear waiver and, in fact, the respondent consulted with duty counsel. The respondent was not forced to consult counsel nor did he acquiesce in exercising this opportunity. In the alternative, Crown counsel argued that the intoxilyzer test results proving commission of the offence should be admitted pursuant to s. 24(2) of the Charter primarily because any constitutional breach was “minimally intrusive”.
[20] In respect of proof of the impaired operation of a motor vehicle allegation, the prosecutor relied in particular upon the observed swerving of the respondent’s truck, the difficulties of the respondent producing his driver’s licence and exiting the vehicle, watery eyes and shaking hands, and unsteadiness on his feet. Crown counsel submitted that “objectively that … this driver has some alcohol in him and he’s impaired when he’s driving this vehicle”. The evidence supported the lawfulness of the arrest and the warrantless breath demand, and the certificate constitutes proof of the offence itself.
The Defence
[21] With respect to the over .80 charge, the defence submitted to the trial judge that the Crown failed to establish that the police complied with the statutory requirement for certificate admissibility of breath samples seized from the respondent “as soon as practicable” after the alleged offences. Specifically, it was argued that the time allotted to the duty counsel process was unnecessary – there was “no justification for the use” of duty counsel. Counsel added:
It may be laudable, but the evidence is the accused did not wish to speak to counsel. And there’s absolutely no evidence that there was any reason to call duty counsel.
…there’s absolutely no evidence that my client ever wanted to speak to a lawyer…
…there’s no evidence that he asked to speak to duty counsel…his response to being asked if he wished to call a lawyer saying, “I am not impaired”, doesn’t appear to be a positive request for counsel.
We don’t know what he was read…the Crown chose not to produce that evidence…
[22] It was submitted that the trial evidence established that the respondent understood his rights and declined the opportunity to consult counsel.
[23] On the impaired operation charge, the defence advanced a s. 8 Charter breach based upon a asserted absence of reasonable and probable grounds for a s. 254(3) Code breath demand. The defence sought to exclude the blood/alcohol readings and it seems the arresting officer’s pre-arrest observations of the respondent himself. Apart from the constitutional argument, on the merits of the case, it was submitted that considering all the circumstances the prosecution had failed to prove impairment to drive.
REASONS FOR JUDGMENT AT TRIAL
[24] In finding the respondent not guilty of the over .80 charge, the trial judge recognized that the onus was on the prosecution, in order for it to rely on the certificate evidence, to prove that the intoxilyzer tests were conducted as soon as practicable in the sense of administered without unreasonable delay as opposed to as soon as possible. The key delay was the time taken to deal with duty counsel. The relevant analysis was described in these terms:
“A) whether the accused expressly and unequivocally waived his right to speak to counsel,
B) that a delay in the taking of the test resulted because of the officer’s decision to contact counsel in the absence of a defendant’s request, and that
C) the delay in the circumstances was significant.”
[25] On the first issue, the trial judge concluded that, on the evidence, the respondent did not ask to speak to counsel and his response, “I am not impaired” was not equivocal as it conveyed that he did not feel he “needed legal advice”. Considering the evidence that the respondent was able to understand “his section 10 rights”, there was a waiver of the opportunity to consult counsel. Speaking to duty counsel did not on the facts here, involving custody and control by the police, evidence a change of mind – the appropriate characterization was that the respondent simply ended up “acquiescing to the police requirement that he speak to counsel” before the intoxilyzer testing. The delay to unnecessarily contact duty counsel was significant enough in duration to have caused the tests not to be taken as soon as practicable, a conclusion fatal to the admissibility of the prosecution’s certificate evidence as to the blood/alcohol readings.
[26] As to proof of the impaired operation charge, the trial judge self-instructed that:
The Crown is required to prove beyond a reasonable doubt that the accused’s ability to operate a motor vehicle was impaired by alcohol at the time of driving. Evidence that establishes any level of impairment [in] the ability to drive caused by alcohol consumption is enough to make out the offence.
[27] The trial judge found these facts:
(1) there was “no persuasive evidence of bad driving” – at most, in a distance well over a kilometre, the police witness could only describe some in-lane swerving and two instances of crossing the dotted line
(2) to be weighed in the balance was the totality of the driving including an unremarkable lane change
(3) the “symptoms of impairment” were “minimal”:
(a) watery eyes
(b) normal speech
(c) delayed production of the driver’s licence
(d) attempted vehicle exit with seatbelt on – “just as easily explained as someone being nervous while being questioned by the police and forgetting the seatbelt was still engaged”
(e) no evidence of difficulty disengaging the seatbelt
(f) somewhat unsteady walking to the police cruiser though no similar difficulties presented during the remainder of the investigation.
[28] In the end, the trial court concluded that:
…when I consider the officer’s observations of the defendant at the roadside coupled with what is really unremarkable driving, I’m not satisfied to the requisite degree that the offence has been made out.
ANALYSIS
[29] Commencing with the over .80 appeal, section 258(1) (c)(ii) of the Criminal Code provides:
- PROCEEDINGS UNDER SECTION 255 – (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254 (5) or in any proceedings under any of subsections 255(2) to (3.2),
(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if
(ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,
evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses, in the absence of evidence tending to show all of the following three things – that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceed 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed;
[30] Timing of the taking of breath samples from a detained motorist complying with this statutory regime relates to an admissibility requirement to be met by the prosecution in order for breath test results to be admitted into evidence as conclusive proof of the concentration of alcohol in an accused person’s blood at the time of the alleged offence.
[31] The dispute at trial centred not on whether the breath samples were taken within two hours of the alleged offences but rather whether the 33-minute period between 9:55 p.m. (completion of intake processing of respondent at OPP detachment) and 10:28 p.m. (entry to breathroom to commence intoxilyzer test processing) amounted, in all the circumstances, to an unreasonable delay frustrating the testing being administered as soon as practicable after commission of the alleged offences.
[32] The trial judge was aware of the import of the legal precedents interpreting “as soon as practicable” in the context of s. 258(1)(c)(ii) of the Code. The Crown appellant here, as at trial, submits that, in fact and law, because there was no clear and unequivocal waiver of the s. 10(b) Charter right the police were compelled to spend over half an hour putting the respondent together with duty counsel.
[33] “The legal test for determining whether the breath tests were administered “as soon as practicable” is well established: R. v. Vanderbruggen, 2006 CanLII 9039 (ON CA), [2006] O.J. No. 1138” (C.A.): R. v. Crewson, 2015 ONCA 264, at para. 1; R. v. Singh, 2014 ONCA 293, at para. 13.
[34] At paras. 12 and 13 of the Vanderbruggen decision, the court determined that the obligation on the police is to take the samples “within a reasonably prompt time under the circumstances” which is not the equivalent of administering the tests as soon as possible. In deciding whether the tests were taken as soon as practicable, a trial court must look to the entire chain of events of a motorist’s custody for the purpose of intoxilyzer tests (Vanderbruggen, at para. 13; Crewson, at para. 3, Singh, at paras. 14-15), “bearing in mind that the Criminal Code describes an outside limit of two hours for administration of the first test”: Vanderbruggen, at para. 13.
[35] While keeping this observation in mind, and the further observation at para. 13 of the Vanderbruggen case that the prosecution is not obliged to “provide a detailed explanation of what occurred during every minute that the accused is in custody”, this is not to be interpreted as an invitation to the police to unreasonably delay to a point just inside the two-hour temporal boundary. Section 258(1)(c)(ii) must be interpreted in a manner consistent with Charter principles relating to restraint of liberty only with lawful justification – for example, not every detainee pursuant to a s. 254(3) Code demand is under arrest or will ultimately test above the proscribed blood/alcohol level. Restraint of liberty is to be minimized not unreasonably prolonged.
[36] Because the test invokes reasonableness as its touchstone, not adherence to any precise mathematically-controlled march to the breathroom, flexibility is essential having regard to the totality of the circumstances of any particular case. Whether samples were taken as soon as practicable is an issue of fact for the trial court: Vanderbruggen, at para. 14; Singh, at para. 16.
[37] A police obligation arising from s. 10(b) of the Charter is to inform a detainee of his or her right to consult with counsel without delay and how that right may be exercised. A police officer’s duty to “inform” is not limited in every case to mechanically reciting the required informational data aloud – in special circumstances capable of interfering with or preventing a detainee’s understanding of the s. 10(b) right, it may be necessary for an officer to go further to take affirmative steps to facilitate understanding by repeating information, or clarifying the detainee’s appreciation of the right or even undertaking a reasonable effort to explain the concepts conveyed. Put differently, in the ordinary case, telling a detainee the necessary information required to understand and exercise the s. 10(b) right will generally satisfy the duty upon the police: Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at para. 39. Although there is no closed list of special circumstances, over time the jurisprudence has identified relevant situational examples – a very young unsophisticated detainee, language difficulties, a known or obvious mental disability, an individual of apparent subnormal intelligence, a seriously physically injured arrestee, interference with the ability to hear, a verbal response evidencing uncertainty or misunderstanding of the right, etc.
[38] Special circumstances may also include “impairment”: R. v. Anderson (1984), 1984 CanLII 2197 (ON CA), 10 C.C.C. (3d) 417 (Ont. C.A.), at p.430; R. v. Baig (1985), 1985 CanLII 3485 (ON CA), 20 C.C.C. (3d) 515 (Ont. C.A.), at pp. 519, 523, affd 1987 CanLII 40 (SCC), [1987] 2 S.C.R. 537 (“no indication that the respondent had consumed alcohol … prior to their [police] contact with him that day”; “He was sober and unimpaired” by any substance).
[39] “The exercise of a right to choose presupposes a voluntary informed decision to pick one course of conduct over another”: R. v. Wills (1992), 1992 CanLII 2780 (ON CA), 70 C.C.C. (3d) 529 (Ont. C.A.), at para. 51. The legal test for the waiver of a Charter right is dependent upon it being clear and unequivocal that the person is forgoing the protection the right affords with full knowledge of the right and a true appreciation of the consequences of giving up the right: R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869, at para. 50; Bartle, at para. 38; R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236, at p. 274; R. v. Borden, 1994 CanLII 63 (SCC), [1994] 3 S.C.R. 145, at paras. 34, 36, 40; Wills, at paras. 69-71. The standard for waiver of a Charter right is high: Bartle, at para. 43. As observed in the Bartle decision, at para. 38, “[a]lthough detainees can waive their s. 10(b) rights, valid waivers of the informational component of s. 10(b) will … be rare”.
[40] Apart from instances of an express waiver, while “a person may implicitly waive his rights under s. 10(b), the standard will be very high”: R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, at para. 25, affing (1983), 1983 CanLII 1726 (ON CA), 43 O.R. (2d) 731 (C.A.).
[41] An unresponsive reply from a detainee may, or may not, depending on the factual circumstances, convey that the detainee acknowledges having fully heard and comprehended the right to retain and instruct counsel without delay. If circumstances indicate that a detainee purporting to waive his s. 10(b) right “may not have understood his right, the police should reiterate his right to counsel…”: R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 52. On the other hand, “[i]n most cases one can infer from the circumstances that the accused understands what he has been told”: R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869, at para. 44. By way of example, as noted in the Manninen decision (Ont. C.A.), at pp. 735, 741, it is evident that the police “carefully read the appellant his rights twice” when, after the initial communication, Manninen made a flippant and unresponsive remark. On the other hand, in the Baig case, the arrestee’s response to complete communication of his s. 10(b) right, “How can you prove this thing?”, was found to amount to an implied waiver without any obligation upon the police to repeat or further probe the arrestee’s understanding of his right.
[42] Unless a detainee, having been fully informed of his or her s. 10(b) Charter right, invokes the right there is no correlative duty upon the police to have the detainee exercise the right of contacting counsel: Bartle, at paras. 18, 21. While, in an ordinary case, the police might voluntarily provide an arrestee access to consult counsel without criticism despite not being requested to do so, that option is not reasonably available in a drinking/driving investigation where the state intends to rely on the s. 258(1)(c)(ii) evidentiary process at trial. In other words, a detour by the police to implement unrequested access to counsel has serious ramifications as to whether it can reasonably be said that breath samples were taken as soon as practicable.
[43] Subject to the observations respecting waiver discussed at paras. 37-41 above, and the inclusion of some additional language (italicized), I accept the summary of principles set out at para. 21 of R. v. Davidson, [2005] O.J. No. 3474 (S.C.J.):
The first question is whether there has been a clear and unequivocal waiver , whether express or implied, 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, or other special circumstance, 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 unless the detainee subsequently evidences a clear change of mind about consulting counsel. Where the delay occasioned by the call to duty counsel is unreasonable it is effectively unexplained;
The good faith 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.
[44] It is argued by the appellant that the conclusion that a waiver existed is unreasonable and unsupported by the trial record. I disagree.
[45] A fair reading of the trial court’s reasons for judgment demonstrates these factual findings:
(1) the respondent did not ask to speak to counsel
(2) the evidence does not support impairment by alcohol on the part of the respondent such as to interfere with his understanding of his s. 10(b) Charter rights
(3) having heard and understood what he was told about his right to counsel, the respondent’s reply, “I am not impaired” in the circumstances amounted to an unequivocal waiver of any desired need for legal advice
(4) the respondent’s consultation with duty counsel engineered by the police amounted to custodial acquiescence and not a voluntary change of mind on the part of the respondent
(5) the significant delay occasioned by the police unnecessarily injecting a duty counsel consultation into the circumstances of detention, defeated the breath samples being seized as soon as practicable as contemplated by s. 258(1)(c)(ii) of the Code.
[46] These factual findings, reasonably available on the evidence to the trial judge, support her conclusion that the prosecution fell short in its required proof on the “as soon as practicable” issue.
[47] Two further observations are warranted. The prosecution at trial, bearing the onus of establishing compliance with s. 258(1)(c)(ii), did not lead evidence as to what Const. Visconti actually told the respondent about his s. 10(b) Charter rights or what precise responses were given in response – the shortfall of evidence about the informational discharge of the officer’s duty respecting s. 10(b) of the Charter further supports the conclusions arrived at by the trial court. Further, although the trial judge spoke of review of the evidence to determine whether the respondent had “expressly and unequivocally waived his right to speak to counsel”, I take this to have fairly included consideration as to whether an unequivocal implied waiver existed in all the circumstances.
[48] Turning to the appeal of the respondent’s acquittal on the impaired operation charge, Mr. Morris orally submitted that the test for appellate intervention is whether the trial judge “committed error in law by making inappropriate findings in the circumstances”. The respondent took no issue with the trial judge being aware of the correct legal test as to whether the Crown at trial proved beyond a reasonable doubt any degree of impairment to drive ranging from slight to great: R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 12 O.R. (3d) 90 (C.A.), affd 1994 CanLII 94 (SCC), [1994] 2 S.C.R. 478.
[49] Having heard counsel’s argument, it is apparent that the respondent is in effect asserting that the verdict is unreasonable and unsupported on the evidence. In this regard, an appellate court must determine whether, on the whole of the evidence advanced at trial, the verdict is one that a properly instructed trier of fact, acting judicially, could reasonably have rendered – is there evidence in the trial record to support the verdict and does the verdict conflict with the bulk of judicial experience: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 36, 40; R. v. F.C., 2015 ONCA 191, at paras. 37-42; R. v. Dodd, 2015 ONCA 286, at paras. 5, 56-60. In considering this ground of appeal, “[t]he issue is not whether the appellate court would have convicted the [respondent], but whether the evidence, viewed through the lens of judicial experience, was reasonably capable of supporting a finding of guilt”: R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at paras. 26-28; R. v. Olliffe, 2015 ONCA 242, at para. 49.
[50] The trial judge presiding in the Ontario Court of Justice is experienced with the myriad of issues in the prosecution and defence of drinking/driving cases seeing these proceedings on a near-daily basis. As an original trier of fact in this case, the trial judge had the advantage of seeing and hearing the prosecution witness.
[51] In seeking to overturn the verdict, the appellant emphasized in particular the unreasonableness of the trial court’s finding of a lack of persuasive evidence of bad driving, the mischaracterization of the constable’s evidence of observed indicia of alcohol impairment of the respondent’s cognitive and motor skills as “minimal”, and, the impropriety of the trial judge inferring, without evidence, that nervousness may have been the cause of the respondent attempting to exit his vehicle without first disengaging his seatbelt.
[52] The trial judge did not misapprehend the evidence respecting the observed nature of the respondent’s driving which was a factor to be considered. There was evidence of in-lane swerving and a lane divider-line crossed on two occasions. The investigating officer had no recall of the frequency of the in-lane swerving (“I do not recall the number of times”) and no note describing the physical length of any over-the-line transgression. It was dark. The respondent was driving a full-sized pickup truck over a significant distance without speeding or interfering with other vehicles, properly signalled a lane change, and promptly responded to the officer’s direction to pull off the highway.
[53] As to the evidence of up-close, pre-arrest observations of the respondent, the trial court concluded that the symptoms of impairment were minimal. While there was an odour of alcohol, evidence of nervousness, difficulty producing a driver’s licence and exiting the vehicle, watery eyes and some unsteadiness on the feet for a limited duration only, an assessment of the whole of the circumstances properly necessitated consideration that the respondent did not exhibit slurred speech, or a flushed face, did not lose his balance, and responded appropriately to the constable’s directions respecting the search and handcuffing process.
[54] Routinely cited in the trial courts are the authorities of R. v. Bush (2010), 2010 ONCA 554, 259 C.C.C. (3d) 127 (Ont. C.A.) and R. v. Censoni, [2001] O.J. No. 5189 (S.C.) which, in the context of review of an officer’s reasonable grounds, caution against operating under a strict checklist-approach to the necessary presence or absence of certain indicia in terms of opinions about impairment to operate a motor vehicle. Reasonable grounds concerns itself with “probabilities” and does not require a police officer to further investigate “to seek out exculpatory factors or rule out possible innocent explanations”: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 27-8, 32-4. And, of course, evaluation of the existence of reasonable probability, does not involve a confidence level equivalent to a beyond a reasonable doubt standard or a balance of probabilities: Mugesra v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at para. 14; R. v. Jacobson (2006), 2006 CanLII 12292 (ON CA), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22; R. v. Loewen (2010), 2010 ABCA 255, 260 C.C.C. (3d) 296 (Alta. C.A.), affd 2011 SCC 21, [2011] 2 S.C.R. 167. In this regard, the police need not always be correct, simply reasonable in their opinion: United States v. Cutter, 674 F.3d 980, 983 (8th Cir. 2012).
[55] However, a finding of reasonable grounds to arrest and/or make a breath demand does not decide the guilt/innocence question. In the trial process of determining guilt or innocence on the higher proof beyond a reasonable doubt standard, and in particular drawing inferences from circumstantial evidence, the court must, in considering whether a reasonable doubt exists, look to evidence of innocence including having regard to alternate rational possibilities grounded in the evidence: R. v. Khela, [2009] 1 S.C.R. 424, at para. 33; R. v. Bui, 2014 ONCA 614, at paras. 22-29.
[56] The trial court’s recognition that nervousness may have been an alternate explanation for the respondent starting to exit his vehicle without disengaging his seatbelt was an entirely proper evaluation of a piece of circumstantial evidence. Not only is there a common sense reality that persons may display nervousness as a common and natural reaction to interaction with investigative authority (United States v. Kitchell; United States v. Shigemura, 653 F.3d 1206, 1220 (10th Cir., 2011) (cert. denied 132 S. Ct. 435 (2011)), but also the constable described the respondent as nervous.
[57] The trial judge was aware that a review of the totality of circumstances required collective consideration of the observed nature of the respondent’s driving and physical and mental condition – it was not suggested that the trial judge evaluated pieces of circumstantial evidence in isolation from each other without cumulative evaluation. In the guilt/innocence determination, the trial court had a reasonable doubt. Even though evidence existed relevant to impairment to operate a motor vehicle, on a considered analysis, the trial judge was not satisfied on the totality of the record to the degree of certainty necessary to convict that it amounted to impairment to operate a motor vehicle. Other adjudicators may have been satisfied beyond a reasonable doubt. That is not the test. The verdict here cannot be said to be unreasonable or unsupported on the evidence.
CONCLUSION
[58] The appeals are dismissed.
Hill J.
DATE: May 26, 2015
CITATION: R. v. MacCoubrey, 2015 ONSC 3339
COURT FILE: SCA(P) 312/14
DATE: 2015 05 26
ONTARIO
SUPERIOR COURT OF JUSTICE
(Summary Conviction Appeal Court)
RE: R. v. MICHAEL MACCOUBREY
COUNSEL: Mr. Morris, for the Appellant
D. Lent, for the Respondent
HEARD: May 22, 2015, at Brampton
REASONS FOR JUDGMENT
[on appeal from acquittals on April 30, 2014
by Justice L.A. Botham]
Hill J.
DATE: May 26, 2015