NEWMARKET

COURT FILE NO.: CR-13-01904

DATE: 20150930

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen
Respondent

– and –

Mark Zanette
Appellant/Applicant

Jeffrey Costain, for the Crown

Don Perry, for the Appellant/Applicant

HEARD: July 24, 2015

REASONS FOR DECISION

mckelvey J.:

Introduction

1The appellant was convicted in the Ontario Court of Justice of impaired operation of a motor vehicle, contrary to section 253(a) of the Criminal Code, as well as refusing to provide breath sample, contrary to section 254(5) of the Criminal Code. The appellant has appealed his convictions on both of the charges.

Background

2Shortly after 9:00 p.m. on February 22, 2013, Police Constable Matthew McGlynn and another officer were approached by a civilian indicating that a grey pick-up truck was weaving into southbound traffic while travelling north on Highway 22. The truck was last seen in front of a church on MacTaggart Drive. Officer McGlynn began to look for the vehicle in question. At approximately 9:06 p.m. a grey pick-up truck was seen parked on McTaggart Drive. The officer, in his vehicle, approached the pick-up truck, which began to move forward. The officer activated his emergency lights and the vehicle then stopped. The police officer got out of his cruiser and spoke to the appellant. The officer made a number of observations, formed the opinion that the appellant was impaired and placed him under arrest. The officer then made a request for a breath sample pursuant to section 254 of the Criminal Code. There is no dispute about the fact that the appellant refused this request. Subsequently, the appellant was charged with both offences noted above.

3The following issues have been raised on this appeal:

(a) The appellant asserts that the trial judge focussed exclusively on the subjective belief of the officer at the time the request was made for a breath sample and did not consider whether the subjective belief was objectively reasonable;

(b) The appellant submits that the trial judge should not have considered the failure to provide a breath sample until after a determination had been made that the arrest for impaired driving was valid; and,

(c) The appellant submits that the trial judge placed undue weight on the demeanor on the appellant in the witness box compared to how he presented himself on the video which was taken at the time of the alleged offence.

Did the trial judge err in concluding that there were reasonable and probable grounds to believe that the appellant’s ability to drive a motor vehicle was impaired at the time of his arrest and the demand for a breath sample?

4It is agreed by both Crown and defence that in order to arrest an individual for impaired driving, the arresting officer must have reasonable grounds to do so. Reasonable grounds are those that are subjectively held and objectively reasonable. As noted by the Ontario Court of Appeal in R. v. Wang, 2010 ONCA 435, the test for deciding whether there are reasonable and probable grounds includes both a subjective and an objective component. First, the officer must have an honest belief that the suspect committed an offence under section 253 of the Criminal Code. Second, there must be reasonable grounds for this belief.

5In the present case, the appellant does not take issue with the subjective belief of the arresting officer. However, the appellant asserts that the officer’s belief was not objectively reasonable.

6In R. v. Bush, 2010 ONCA 554, the Ontario Court of Appeal considered the test to be applied on appeal. It notes that the test is 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. The court goes on to state that,

Where appellate courts are called upon to review the trial judge’s conclusions as to whether the officer objectively had reasonable and probable grounds, the appellate court must show deference to the trial judge’s findings of fact although the trial judge’s ruling is a question of law reviewable on the standard of correctness.

7In R v. Grant, 2014 ONSC 1479, Justice Durno notes that appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable.

8As previously noted, it is acknowledged that the arresting officer was subjectively of the view that there were reasonable and probable grounds to believe that the appellant’s ability to drive a motor vehicle was impaired. The issue is whether those views were objectively reasonable.

9It is clear that the trial judge understood the correct legal principle to be applied in this case. In his decision, the judge states,

The Ontario Court of Appeal has recently reminded us, it is not even evidence on a prima facie case, but simply whether or not the officer held, on reasonable and probable grounds, a subjective belief that the accused’s ability to operate the motor vehicle was impaired by alcohol. In the grounds the officer relies upon, the officer must not only hold the subjective belief, but the grounds that the officer relies upon must objectively support that belief.

10In concluding that there were reasonable and probable grounds, in his decision, the trial judge stated as follows,

So, in my view, although certainly it is not crystal clear, that this vehicle that the officer first comes upon was the vehicle he was alerted to by the witness. There was, nonetheless, a reasonable foundation for the officer to suspect that it was, and to stop and interdict the person in the vehicle. And to rely to that extent on the information that he received, and that is what occurred here. The officer quickly, in his exchange with the accused, noticed an odour of alcohol on his breath; noticed his speech was slurred. The slurring of his speech is, in my view, clear on the video, and I will have more to say on that in a bit. The officer also noted difficulty with the accused opening the glove box, which this officer could clearly see with his flashlight shining on the glove box where the handle was. And the officer concluded, from that constellation of circumstances, including the information he had received; the odour of alcohol, the observation of the tall boy can, which I neglected to just indicate, and the speech that he observed, that the accused’s ability to operate a motor vehicle was impaired by alcohol and arrested him.

We have to bear in mind the test here is, as I have indicated, Stellato, that is to say, reasonable and probable grounds that the accused’s ability to operate the motor vehicle was slightly impaired by alcohol, or was impaired by alcohol, however slight.

In my view, we have been reminded of this by the Ontario Court of Appeal, that these are dynamic quickly moving circumstances that require officers to make judgments in short spans of time, and we are to bear that in mind in assessing this. In my view, the circumstances, and the constellation of circumstances here amply demonstrate that reasonable and probable grounds has been met in accordance with the standard in R. v. Stellato, so I would not give effect to that ground.

11The appellant argues that the trial judge failed to give due consideration to explanations the accused gave in his evidence to explain the slurred speech and why he had difficulty opening the glove compartment. The appellant also asserts that the trial judge did not take into account evidence that he was able to walk normally and had no difficulty producing his driver’s licence at the time of his arrest. It is further submitted that the evidence relied upon by the judge did not raise more than a suspicion that the appellant had consumed alcohol. It was not sufficient to suggest he was impaired. At best, it is argued that it would have provided a reason for requesting a roadside test.

12In his reasons, the trial judge gives reasons why he rejects the appellant’s evidence on a number of important points. So, for example, the appellant’s explanation that slurred speech was due to cold weather outside was not accepted by the trial judge, who stated, “in my view, there is just simply no foundation on the evidence to suggest that cold weather can result, in the circumstances of this case, in slurred speech”. The trial judge, in his judgment, specifically rejects the accused’s evidence on that point.

13The trial judge also made reference in his decision to the appellant’s evidence that the truck belonged to his father and that provided an explanation as to why he had difficulty opening the glove box. In this regard, the trial judge stated in his decision,

Dealing with the exchange concerning the glove box and production of documents; the officer had asked the accused for his ownership and insurance, and to take the keys out of the vehicle, and he had taken the keys out. And the officer says, “So, where is the ownership and insurance?” And then the officer is saying, “Are you having trouble opening that?” And there is a response from the accused, it is his father’s truck. The officer says, “No. There’s not a button on that” and “I can see the handle from here.” Obviously, there was observations of the officer, which are consistent with his evidence, that the accused was having trouble locating the handle on the glove box, which is the evidence of the accused as well. Shortly thereafter, the accused is arrested.

14It is apparent that the trial judge, in considering the accused’s explanation, did not accept that the appellant’s failure to be able to open the glove box was explained by the fact that the appellant was not familiar with the vehicle.

15The trial judge does not specifically refer to the evidence of the police officer on cross-examination that the appellant was able to retrieve his driver’s licence without difficulty and that he was able to walk to his house without difficulty. I note in this regard that the physical observations of the appellant walking home took place after he was released, well after the charges were laid. Thus, those observations would not be relevant to whether reasonable and probable grounds existed at the time of the arrest. Further, while the trial judge did not specifically refer to the evidence elicited from the officer on cross-examination that the appellant was able to retrieve his driver’s licence without issue, it is not necessary for the trial judge to recite all of the evidence that was adduced at trial.

16The Supreme Court of Canada decision in R. v. REM, 2008 SCC 51 has made it clear that considerable deference is to be given to findings of credibility made by a trial judge. The court notes that where credibility is a determinative issue, deference is in order and intervention will be rare. What is required is that the reasons must demonstrate that the judge has seized the substance of the matter. As long as this is done, detailed recitation of evidence or the law is not required. What is required is that the reasons demonstrate that the judge has seized the substance of the critical issues of trial. In a case where evidence is contradictory or confusing, the test is whether the trial judge appears to have recognized and dealt with the contradictions. I have concluded that the trial judge has met his obligation in this regard. He does comment at length in his decision about the reasons for making findings of credibility against the appellant based on the evidence at trial. I conclude, therefore, that there is no basis to interfere with the trial judge’s findings of fact. Some of the critical findings made by the trial judge include:

(a) The appellant had a tall boy can of Coors light beer that was in the console cup holder of his vehicle;

(b) There was the smell of alcohol coming from the breath of the appellant;

(c) The appellant’s speech was slurred in a significant way;

(d) The appellant had difficulty opening the glove box, which the officer could clearly see with his flashlight shining where the handle was located on the glove box.

17While the appellant is correct that consumption of alcohol does not equate to impairment by alcohol, the trial judge was entitled to consider the totality of the circumstances as found by him. The slurring of the appellant’s speech and his difficulty opening the glove box are significant findings which go to the appellant’s motor function and his ability to operate a motor vehicle. Further, while evidence of the consumption of alcohol is not necessarily evidence of impairment, it is a relevant factor to take into account in considering whether there is evidence of impairment. Reasonable and probable grounds may emerge from a combination of circumstances, including evidence of alcohol consumption.

18In my view, the facts found by the trial judge, as noted above, are sufficient in law to objectively support the officer’s subjective belief that the appellant’s ability to drive was impaired by alcohol.

19For the above reasons, I am not persuaded that the trial judge erred in finding that the officer objectively had reasonable and probable grounds to make the demand for a breathalyser and to arrest the appellant.

Did the trial judge make an error in considering the charge of failing to provide a breath sample offence before a determination had been made that he appellant’s arrest for impaired driving was valid?

20In his decision, the trial judge first considered Count 2, which was the charge of failing to provide a breath sample. In doing so, the appellant argues that the trial judge then improperly considered the appellant’s refusal to take a breathalyser as evidence of impairment. The reasons of the trial judge support a conclusion that he did consider the appellant’s refusal to take a breathalyser test as evidence which he found supported a finding of impairment on the charge of impaired operation of a motor vehicle. This is reflected in the reasons of the trial judge when he states,

His refusal to blow, his difficulty in opening the glove box, the odour of alcohol, the presence of alcohol, in my view, I conclude, after consideration of all of the factors, pros and cons, that the standard in R. v. Stellato of impairment, however slight, has been established beyond a reasonable doubt, and accordingly, I find him guilty on Count 1 as well.

21The trial judge is not required to deal with each charge in sequential order. Further, section 258(3) of the Criminal Code provides that in respect of an offence under section 253(1)(a), evidence that the accused, without reasonable excuse, failed or refused to comply with the demand, made under section 254 (the section dealing with breathalyser testing) is admissible and the court may draw an inference adverse to the accused from that evidence. This would appear to be a complete answer to the appellant’s argument on that issue.

Did the trial judge place undue weight on the demeanor of the appellant in the witness box as compared to how he presented on video?

22The appellant, in his evidence at trial, testified that the slurring of his speech on the day in question may have been affected by the cold. He also testified that it was an embarrassing moment for him and that he might not have been his true self. The appellant agrees that the trial judge was entitled to consider any differences in speech or behaviour as shown on the video taken by the police officer at the time of his arrest and his viva voce testimony at trial. However, the appellant argues that the trial judge erred by placing undue weight on the appellant’s manner of speech in the video and failed to consider the extent of his explanation for that. The appellant relies on comments made by the Ontario Court of Appeal in R. v. TE, 2007 ONCA 891, where they comment on the frailties of demeanor evidence. In my view, however, the trial judge was not making an assessment of the appellant’s demeanor when he compared the appellant’s speech at trial to his speech as shown on the video at the time of his arrest. Instead, what the judge was doing was comparing the appellant’s speech pattern at trial and properly comparing it to other evidence which was before him at trial. This, in my view, was appropriate. It follows the accepted pattern of considering a witness’s evidence at trial and comparing it to other evidence (in this case the video of the accused at the time of his arrest) adduced at trial, and which is considered reliable for purposes of making credibility or other findings.

23In his reasons for judgment, after considering the appellant’s explanation, the trial judge states,

So, the explanation that it was cold simply, in my view, is nonsensical, and in any event, what cold has to do with slurred speech and the marked difference in speech pattern that I have noted is beyond me. In my view, there is just simply no foundation on the evidence to suggest that cold weather can result in the circumstances of this case, in slurred speech.

24I conclude that the trial judge was entitled to take the video evidence into account in making his findings with respect to the appellant’s evidence. This is not a case where the trial judge placed undue weight on the demeanour of the appellant.

Conclusion

25For the above reasons, the appellant’s appeal is dismissed.

Justice M.K. McKelvey

Released: September 30, 2015