R. v. Thornton, 2015 ONSC 358

COURT FILE NO.: 11-0208

DATE: 2015/01/19

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

MICHAEL THORNTON
Defendant/Appellant

Moiz Karimjee, for the Respondent

Richard Addelman, for the Defendant/Appellant

HEARD: November 19, 2014 at Ottawa

REASONS FOR JUDGMENT

On appeal from the decision of Justice J.P. Wright, Ontario Court of Justice,

at Ottawa, dated November 19, 2013

LABROSSE J.

Introduction

1The appellant appeals his conviction of operating a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol.

2Initially, the appellant was arrested at the roadside for failing to comply with a demand to provide a breath sample. He was advised of his right to counsel and declined. Upon return to the police station, some 35 minutes later, the officers observed indicia of impairment and also arrested him for impaired driving. The arresting officer failed to advise the appellant of his right to counsel as a result of this second offence.

3The trial judge dismissed the charge relating to the failure to provide a breath sample and found the appellant guilty of impaired driving.

4The grounds of appeal are that:

• the trial judge failed to provide sufficient and adequate reasons on the Charter Application brought under sections 10(a), 10(b) and 11 of the Charter; and

• the trial judge failed to relate or connect the signs of impairment observed at the police station back to the time of driving.

Relevant Facts

5On October 16, 2011 at approximately 2:30 a.m., Ashley Perry was operating her motor vehicle eastbound on the 417 in the City of Ottawa when a vehicle driven by the appellant struck her vehicle from behind and pushed her into the median. A passenger in the vehicle called 9‑1‑1 following the accident.

6The appellant did not testify and provide any explanation for the accident.

7Constable Yves Lacasse, a member of the OPP, was dispatched to the scene of the accident at 2:51 a.m. and arrived at 3:00 a.m. Constable Lacasse engaged in conversation with the appellant and detected an odour of alcohol on his breath.

8At 3:07 a.m. Constable Lacasse read a demand that the appellant provide a breath sample into a roadside screening device. The appellant failed to provide an adequate breath sample and was arrested for failure to provide a breath sample.

9Constable Lacasse testified that the first indicia of impairment was observed by him approximately 35 minutes after his arrival at the scene of the accident, shortly after returning to the police station. While at the police station, Constable Lacasse observed that the appellant’s motor skills were delayed, he was off balance, his eyes were red and glassy and there was an odor of alcohol on his breath.

10Constable Rodrigues testified that while at the roadside, he identified the smell of alcohol and that the appellant’s eyes were red. While at the police station, he observed that the appellant was unstable on his feet, he fell a few times while practicing Tai Chi and his eyes were red and glassy.

11The appellant was initially arrested at the roadside for refusing to provide a breath sample and was given an opportunity to contact legal counsel but declined. At the police station, he was arrested for impaired driving but was not given an opportunity to contact legal counsel.

Standard of Review

12The standard of review requires that an appellate court should not interfere merely because it would have reached a different result and should only interfere if the trial judge made a finding that is unsupported by the evidence or that is unreasonable and would have affected the result. (See Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 56).

13The weighing and examination of the evidence is only for the purpose of determining whether the trier of fact could reasonably have reached the conclusion it did on the evidence before it. (See R. v. Burns, [1994] 1 S.C.R. 565, 1994 127 (SCC) at para. 14).

Trial Judge’s Decision

a) Charter Applications

14The trial judge gave reasons for the Charter Application with respect to alleged breaches of sections 10(a), 10(b) and 11(a). The breaches resulted from the fact that the arresting officer did not take any steps under sections 10(a) or 11(a) of the Charter to inform the appellant of his rights to counsel after the officer formulated the grounds for impairment.

15In accepting a breach of sections 10(a) and 11(a) of the Charter, the trial judge found that nothing arose from those breaches, as there was no evidence obtained as a result of the breaches. Consequently, there was no evidence to exclude under s. 24(2) of the Charter. While the appellant argued for a stay of proceedings, the trial judge concluded that the exceptional circumstances of a stay did not exist. As such, there was no remedy for the Charter breaches.

b) Failure to Provide a Sample

16On the charge of failing to comply with a demand to provide a breath sample at the roadside, the trial judge dismissed that charge as a result of the arresting officer having advised the appellant that his failure to provide a sample was “as bad as impaired”. The trial judge found this statement to be incorrect. On cross‑examination, the officer agreed that the failure to provide a sample leads to an automatic arrest but a failed roadside test does not automatically result in an arrest. The trial judge stated that where the police chose to give legal advice, they must be correct in the advice they give. In this situation, the trial judge found that the accused should have been advised that a failed roadside test could lead to an arrest but that it was not automatic.

c) Impaired Driving Charge

17On the impaired driving charge, after having dismissed the Charter Applications, the trial judge determined that the evidence led to a very strong case of impairment. In addition to the odour of alcohol, the physical signs observed at the police station, being very serious balance problems, motor skill issues and red eyes established beyond a reasonable doubt that the accused’s ability to operate a motor vehicle was impaired beyond the slight requirement, as set by R. v. Stellato, 12 O.R. (3d) 90, 1993 3375.

18The trial judge convicted the appellant of operating a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol, contrary to section 253(1)(a) of the Criminal Code.

The Position of the Appellant

19The appellant firstly argues that the trial judge erred in not conducting a proper Charter Application analysis as set out in R. v. Grant, [2009] 2 S.C.R. 353, 2009 SCC 32. That analysis required the trial judge to inquire into the seriousness of the Charter infringing conduct, the impact on the Charter protected rights of the appellant, and the society’s interest in an adjudication on the merits. The Court is then to weigh the various implications and determine whether, on balance, the admission of the evidence obtained in violation of the accused’s Charter rights would bring the administration of justice into disrepute.

20By simply concluding that there was no remedy available to the appellant, the appellant argues that the trial judge demonstrated a misunderstanding of the Grant analysis.

21The second ground of appeal relates to the absence of reliable evidence to conclude that there was impairment at the time the appellant was driving. The appellant relies upon the time following the accident until the officer arrested him on the grounds of impairment. The defence states that it was unreasonable for the arresting officer to conclude that he had reasonable and probable grounds for concluding that the appellant was impaired some 45 to 60 minutes after the accident took place.

22In addition, the appellant relies upon the absence of signs of impairment at the roadside where the police did not observe sufficient indicia to conclude impairment. The police are trained, the appellant argues, to look for signs of impairment at the roadside, even where it may be on a busy highway and as the arresting officer did not observe indicia of impairment at the roadside, this casts a reasonable doubt on the observations and conclusion of impairment.

23In the end, the appellant requests this Court order a new trial as a result of the above errors by the trial judge.

The Position of the Crown

24In respect of the first ground of appeal, the Crown takes the position that the trial judge was correct in not doing a Grant analysis as there was no evidence obtained from the Charter breaches. In support of this position, the Crown relies on R. v. Manchulenko, 2013 ONCA 543 and states that this is not a case of lost evidence. This is not an appeal under section 24(1) of the Charter.

25On the second ground of appeal, the Crown relies on the test established in Stellato, which confirms that a finding of guilt may follow where “there is sufficient evidence before the court to prove that an accused person’s ability to drive is even slightly impaired by alcohol.” (See R. v. Moreno‑Baches, 2007 ONCA 258 at para. 3).

26With respect to the time that had elapsed between the accident and the formulation of grounds for impairment, the Crown relies upon the decision in R. v. Maharaj, 2007 CarswellOnt 1826 at para. 18. In Maharaj, the time following the offence of driving was over two hours. The Crown argues that the 45 to 60 minutes following the accident to the formulation of grounds for impairment is not unreasonable and is sufficient to conclude impairment back to the time of driving.

27The Crown further relies on the absence of an innocent explanation for the accident as support for the trial judge’s decision (See R. v. Plater, 2005 CarswellOnt 8948 at para. 48).

Analysis

28For the following reasons the appeal is denied.

Charter Application – Sufficiency of Reasons

29On the Charter Application, while the trial judge’s reasons are brief, they are proportionate to the Charter Application issues. There was no evidence obtained following the Charter breaches and, as such, section 24(2) of the Charter did not apply. The evidence, which led to the formulation of impairment, was gathered prior to the Charter breaches. A Grant analysis would not have led to a different conclusion.

30I find that there was no nexus between the gathering of evidence of impairment and the failure of the police to advise the appellant of his right to counsel. (See Manchulenko, supra at para. 71). Having regard to the nature and timing of the Charter breaches, I find the trial judge’s reasons to be sufficient in the circumstances.

31Finally on this issue, I fail to see where the trial judge erred in failing to stay the charges. The trial judge was correct in finding that the circumstances where a stay will be ordered are exceptional and that those circumstances are not present in this case.

Impaired Driving Conviction

32On the impaired driving charge, the trial judge’s reasons are also brief but I find them to be sufficient. The trial judge properly identified that the odour of alcohol was not an indicia of impairment but that of consumption. He relied upon the physical signs of impairment, which became evident at the police station. He accepted the explanation of the police officer for the delay in observing the physical signs of impairment and highlighted the very serious balance problems, motor skill issues and the red eyes of the appellant. In making his finding, the trial judge properly confirms that he is considering the evidence on its totality in concluding a strong case of impairment. The trial judge referred to the applicable law in Stellato in confirming that he only needs to conclude slight impairment beyond a reasonable doubt.

33In R. v. Bulman, 2007 ONCA 169, [2007] O.J. No. 913 (referenced in Maharaj), the Court of Appeal held that a jury was entitled to consider the inherent implausibility of the appellant exhibiting indicia of impairment within as little as 10 to 15 minutes after the accident if he had not been impaired at the time of driving. In Maharaj, there was over two hours between the event and the observations and the Court found that it was unsafe to draw any inference.

34I am not persuaded that the 45 to 60 minute period between the accident and the formulation of grounds for impairment required that the trial judge make specific findings back to the time of driving. Further, the observations of impairment at the police station were significant enough to allow the trial judge to conclude beyond a reasonable ground that there had been at least slight impairment at the time of driving. I am of the view that there was sufficient evidence of impairment, both at the time of driving and continuing for the next 45 to 60 minutes to support the trial judge’s finding of impairment according to Stellato.

35I am satisfied that the trial judge’s findings considered the evidence in its totality. The conclusions of the trial judge are supported by the evidence and they are certainly not unreasonable based on the record before me. I am unable to find any overriding or palpable error made by the trial judge in this case.

Conclusion

36The appeal is dismissed.

Mr. Justice Marc R. Labrosse

Released: January 19, 2015

CITATION: R. v. Thornton, 2015 ONSC 358

COURT FILE NO.: 11-0208