CITATION: R. v. Sacca, 2015 ONSC 7323
COURT FILE NO.: 14-A9381
DATE: 2015/12/01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
– and –
MICHELE SACCA
Respondent
Moiz Karimjee, for the Appellant
Sean J. May, for the Respondent
HEARD: November 18, 2015
on appeal from the acquittals entered on november 14, 2014 by justice edward ormstoN of the ontario court of justice
C. McKINNON J.
[1] The Respondent was acquitted on charges of driving with over 80 milligrams of alcohol in 100 milliliters of blood and of impaired driving arising out of events that occurred on Sunday, January 26, 2014.
The Facts
[2] The evidence at trial revealed that the Respondent had lunch with three other individuals at the Heart & Crown Pub on Preston Street in the City of Ottawa. The server, Ms. Karla Hobbs, knew Mr. Sacca to be a regular. She served Mr. Sacca and his friends on the day in question. She recollects that they were present for lunch for approximately three hours. Between them they drank nine Vodka drinks, four double Bloody Caesars and seven “Burt Reynolds” which are alcohol shots. They ate two classic breakfasts, one club sandwich and one Irish breakfast. The bill was $190.43. Ms. Hobbs recollects that Mr. Sacca had a double Caesar, two Vodkas and a shot. He ate one of the meals. Mr. Sacca paid the bill in the amount of $190.43. Ms. Hobbs recollected that the group was very friendly and not “overly rowdy or anything like that.” She had no concerns about the sobriety of the four individuals.
[3] She recollected that Mr. Sacca left the pub about ten minutes after paying the bill. The bill was paid at 3:44 p.m.
Evidence of Constable Ian Matyas
[4] At approximately 5:46 p.m., Constable Ian Matyas was dispatched to the corner of Woodroffe Avenue and Earl Mulligan Drive in Ottawa’s West end. The 911 tapes indicate that an individual was observed in a black Acura sedan, stationary at the intersection, with traffic honking at the vehicle. The individual was observed looking straight ahead with his head periodically bobbing up and down. The four-way flashers in the vehicle were not activated until after the lights in the intersection had changed four times. Constable Matyas noted that the vehicle was blocking the pedestrian crosswalk. The vehicle was running.
[5] Constable Matyas approached the vehicle and observed the Respondent sitting in the driver’s seat. Constable Matyas asked the Respondent to roll down his window so that he could check his condition. He was operating under the assumption that the individual was having “some kind of a medical issue.” The individual very slowly pulled the door handle several times, had a confused look on his face and was finally able to roll down the window. Once the window was opened Constable Matyas asked the Respondent if he was alright, to which the Respondent replied that he was fine. Based on the Respondent’s slow movements and “lethargic” speech, Constable Matyas stuck his head in the window to see if there was an odour of alcohol, but he could not smell alcohol. He concluded, based on past experience, that the Respondent might be having a diabetic episode. His behavior was consistent with somebody who was impaired, but based on the lack of smell of alcohol, he became concerned that the Respondent may have been having a diabetic episode.
[6] Constable Matyas asked Mr. Sacca if he was diabetic and the Respondent said yes. Constable Matyas asked if the Respondent took insulin and the Respondent said yes. Constable Matyas asked if the Respondent had the insulin with him and the Respondent said no. The Respondent was asked how he took the insulin and he looked confused. He was asked if he took it with a needle and he stated that he did take it with a needle. Constable Matyas asked the Respondent if he had consumed any alcohol and the Respondent said no. Constable Matyas asked when was the last time the Respondent had consumed alcohol and the Respondent stated that he did not drink. Based on these answers Constable Matyas asked if the Respondent needed insulin and the Respondent chuckled. Constable Matyas looked into the back of the vehicle and saw hockey equipment. He asked the Respondent if he had just played hockey and the Respondent said yes. Constable Matyas asked the Respondent where he played and the Respondent said he did not remember. Constable Matyas asked the Respondent when he last ate, because that could be an issue for someone suffering from diabetes, and the Respondent stated it had been a long time and again started chuckling. The Respondent was asked where his insulin was and again the Respondent had a confused look on his face. Constable Matyas asked if the Respondent’s insulin was at his home and the Respondent answered “Yes, it’s at home.” Constable Matyas noted that the Respondent’s speech was laboured and that he was speaking very slowly and then would speed up slightly toward the end of a sentence and clip off the last word of the sentence. From time to time the Respondent rolled his head, looked at Constable Matyas and then looked straight ahead. He was asked if he felt faint and the Respondent answered that he did.
[7] Constable Matyas knew from dispatch that an ambulance had already been called, but he called dispatch and asked them to expedite the ambulance response as he was becoming more and more concerned about the safety of the Respondent. The Respondent was asked to take out his wallet and he reached very slowly to the glove box with his fingers very slowly working the mechanism. Constable Matyas shone his flashlight on the clasp of the glove box to assist the Respondent in opening it. The beam of light crossed the face of the Respondent and Constable Matyas noted that the Respondent’s pupils were dilated. He noted that he had seen that in people who were impaired but also in people who were diabetic. He wanted to keep the Respondent talking and so he asked him further questions about his diabetes and eating.
[8] Constable Matyas became concerned that the Respondent may have inadvertently put the car into drive. He asked the Respondent to turn the car off. The Respondent reached for the gear shift. Constable Matyas had to tell him “No, turn off the car.” At approximately 5:58 p.m. the ambulance arrived and paramedic Robert Bittorf, together with another paramedic, attended the scene. Mr. Bittorf helped Constable Matyas escort the Respondent to the ambulance, each holding one of the Respondent’s arms. Constable Matyas noted that the Respondent was swaying from side to side and faltering as he walked. Constable Matyas had to support the Respondent with his arm to prevent the Respondent from falling. The Respondent entered the back of the ambulance, quite unsteadily. Constable Matyas had to push the Respondent from behind to prevent him from falling backward. At that point, Mr. Bittorf informed Constable Matyas that he had received “a transient” smell of alcohol off the Respondent when the Respondent was getting out of the car.
[9] Constable Matyas observed Mr. Bittorf taking blood samples from the Respondent after which Mr. Bittorf informed Constable Matyas that the Respondent had a perfectly normal blood sugar level. Constable Matyas testified that given the signs of impairment that he had noticed “which were quite significant, and based on Mr. Bittorf’s statement to me that he had smelled a transient smell of alcohol leaving the vehicle, and the fact that Mr. Sacca’s blood sugar level was apparently normal, I started to suspect again that Mr. Sacca was impaired by alcohol, but I wanted to completely rule out any medical issue before I came to that conclusion.”
[10] Constable Matyas asked Mr. Bittorf once again if there was any medical explanation for the Respondent’s behavior and Mr. Bittorf said there were no medical reasons. Based on that information, Constable Matyas formed reasonable grounds to believe that the Respondent was impaired by alcohol. In cross-examination Constable Matyas stated that he could have easily called to arrange a roadside alcohol screening test but testified that he did not need one. Had he felt he needed one he would have called for it.
[11] Constable Matyas testified that he arrested the Respondent at 6:02 p.m. by telling him that he was under arrest and that he then asked the Respondent to put his arms behind his back. The Respondent tensed his right arm several times and tried to pull away and, in order to effect the arrest safety, Constable Matyas pushed the Respondent over the stretcher in front of which the Respondent was standing so that Constable Matyas could immobilize the Respondent and safely place handcuffs on his wrists. Once the Respondent was lying on his stomach on the stretcher he stopped resisting and Constable Matyas was able to place the handcuffs on him. Following the arrest, Constable Matyas took some time to make brief notes to ensure that he had captured the salient evidence.
[12] Constable Matyas and the two paramedics walked the Respondent to the police cruiser. It was very cold and snowing lightly. At the cruiser, Constable Matyas began to search the Respondent and in his left pant pocket found a wad of cash.
[13] Constable Matyas testified that it was normally his practice when finding money on the road to count it in front of witnesses to ensure that there are no discrepancies. He began to do so but had to stop counting the money because of the strength of the wind. He feared that the money would blow away so he placed the wad of cash back into the Respondent’s pant pocket and then placed him in the back of the cruiser. The paramedics witnessed this procedure.
[14] Constable Matyas testified that he read the Respondent his rights at 6:12 p.m., including his right to counsel. He testified that it took longer than normal to perform functions because of the cold. He testified that normally he would have read the Respondent his right to counsel in the rear of the ambulance but he did not wish to tie up the ambulance for any longer than was required. After Constable Matyas read the Respondent his rights, he asked the Respondent if he wanted to speak to a lawyer and the Respondent said yes. The Respondent was read the caution and asked if he understood. The Respondent said no. It was explained again and he was again asked if he understood. The Respondent said “No, I want my lawyer.” At 6:15 p.m. the warning was read yet again. At 6:16 p.m. the breathalyzer demand was read, to which the Respondent said “Okay.” When asked if he understood he said “No.”
[15] Constable Matyas then telephoned for a tow truck and began making further notes to record the incident. At 6:19 p.m. the tow truck arrived. Constable Matyas escorted the Respondent to the police station cellblock at 474 Elgin Street in the City of Ottawa. During the drive the Respondent complained that the handcuffs hurt. Constable Matyas pulled the vehicle over to the side of the road with the intention of loosening them. When he told the Respondent that he would fix the handcuffs the Respondent said “No, just get me there.”
[16] At 6:49 p.m., after arriving at the receiving area of the cellblock, the Respondent stated “Thanks to you I’m going to go home and kill my kids. I’m going to shoot them in the head. Fuck you. It’s my fault, right? Thank you.” Constable Matyas wrote the words down immediately upon hearing them. Upon being brought to the cellblock and searched, a receipt from the Heart & Crown Pub was found in the Respondent’s possession.
[17] The Respondent was informed that he should speak to a lawyer, that it was very important to do so. Constable Matyas told the Respondent that it was the Respondent’s choice but that he highly recommended it. After some discussion the Respondent allowed Constable Matyas to telephone his wife (the Respondent thought that his wife might know the lawyer’s name). Constable Matyas believes he asked the Respondent’s wife to arrange to have a lawyer contact the Respondent.
[18] Constable Matyas asked the Respondent’s wife if the Respondent was diabetic and she stated that he was but that it was a fairly new condition. When asked if the Respondent took any medication she informed Constable Matyas that any medication the Respondent might have to take would be with him because he had stayed downtown the previous night.
[19] Shortly thereafter, defence counsel Sean May telephoned the cellblock. The Respondent was placed in a private room and permitted to speak to Mr. May between 7:35 p.m. and 7:43 p.m. Meanwhile, Constable Matyas had an interview with Constable Matthew Dunn, the breath technician, to inform Constable Dunn of his grounds for arresting the Respondent. When the Respondent was finished speaking with Mr. May, Constable Matyas transferred custody of the Respondent to Constable Dunn. At 7:46 p.m. Constable Dunn called Constable Matyas, saying that the Respondent wished to speak to his lawyer again. At 7:48 p.m. Constable Matyas brought the Respondent to a private room and telephoned Mr. May. There were telephone problems. At 7:52 p.m. Constable Matyas contacted Mr. May to tell him that he was having telephone issues. The Respondent asked if he could use a toilet. He was brought to a toilet and urinated from 7:53 p.m. to 7:56 p.m., a full three minutes. At 8:02 p.m. the telephone problem was resolved and the Respondent again spoke to Mr. May until 8:06 p.m. At 8:08 p.m. the Respondent was once again delivered to Constable Dunn.
[20] Constable Matyas thereafter returned to making notes. He investigated the threat that the Respondent had made. Constable Matyas testified that he was relatively confident that what the Respondent had said was largely as a result of alcohol impairment. Constable Matyas arranged for a detective to speak to the Respondent’s wife. The information from the wife was that she had no reason to fear her husband. Constable Matyas checked as to whether the Respondent had a history of violence and learned that he did not. He concluded that the Respondent did not pose a threat to his children. After discussing the matter with his Sergeant, he decided not to charge the Respondent with uttering a threat.
[21] In cross-examination, Mr. May suggested to Constable Matyas that it was unlikely that all the matters that occurred from the time the paramedics arrived on scene to the time Constable Matyas made his arrest—namely that Mr. Bittorf went over to the car and spoke to Constable Matyas; Mr. Bittorf and Constable Matyas escorted the Respondent to the ambulance; Mr. Bittorf checked vitals and conducted tests and then returned the Respondent to Constable Matyas—could have occurred within four minutes. Mr. May suggested that it would be “incredibly difficult” for all those things to happen in four minutes and pressed Constable Matyas on whether his recording of times was accurate. Constable Matyas’s answer was that his notes were correct, to the best of his knowledge. He stated that he recorded the time of his arrival and the paramedics’ arrival on the scene from his mobile data terminal in his vehicle and the time of the Respondent’s arrest was taken from his watch. Constable Matyas agreed that his mobile data terminal and watch were not co-ordinated.
[22] With respect to the smell of alcohol, Constable Matyas admitted that he was relying on the statement made to him by Mr. Bittorf to establish the grounds for arrest, and in particular Mr. Bittorf’s comment that he had noticed the “transient” odour of alcohol. He was pressed again as to why he did not ask that a roadside screening device be brought to the scene. He testified that the reason that he did not was because he was confident, based upon the medical exclusion and the signs of impairment, that the Respondent was impaired by alcohol.
Evidence of Mr. Robert Bittorf
[23] Mr. Bittorf, one of the paramedics who attended the scene, made medical notes of his observations and procedures. He arrived at the scene at 5:57 p.m. and spoke to Constable Matyas. He was told that the Respondent had slurred speech and appeared to be impaired but claimed that he was diabetic and Constable Matyas wanted to assess the possibility of diabetes as the cause of the Respondent’s condition. After inviting the Respondent to go to the ambulance, Mr. Bittorf noted that the Respondent had an abnormal gait. The Respondent’s ability to ambulate was abnormal and he smelled strongly of alcohol. Mr. Bittorf testified that when the Respondent spoke the smell of alcohol was very strong. The Respondent’s blood sugar level was tested and found to be completely normal. Mr. Bittorf waited ten minutes and took a second blood sugar test which again proved to be normal. He quizzed the Respondent about diabetes and asked him what kind of diabetes he had. The Respondent was unable to tell him. Mr. Bittorf asked the Respondent what kind of medication he was taking and the Respondent was unable to tell him. The Respondent was asked if he was on insulin and he was unable to answer the question. Mr. Bittorf then stated to the Respondent “You aren’t diabetic” and the Respondent stated “No.” He noted that the Respondent had slurred speech and ruled out any possibility of a stroke. The Respondent was not dizzy, he did not have a cough, he was not short of breath, he did not have chest pain, he had not had a seizure, he was not vomiting, he was not incontinent, his temperature was normal. Based on these observations, Mr. Bittorf “ruled out pretty much everything other than alcohol intoxication.” Mr. Bittorf did another set of vitals. The Respondent’s heart rate was normal as was his blood pressure. Mr. Bittorf passed the Respondent off to police custody.
[24] When sitting in the ambulance Mr. Bittorf and the Respondent were very close, face to face, and Mr. Bittorf testified that the odour of alcohol was “overwhelming.”
[25] He does not remember the words he used but he did inform Constable Matyas that he could not find anything wrong with the Respondent. He does not recall whether he advised Constable Matyas about smelling alcohol but he believes he did. He testified that he would not likely have used the word “transient” at any time, because his memory was that the odour was “overwhelming”.
[26] Mr. Bittorf did observe that the Respondent was oriented to person, place, time and events. He knew who he was, what time it was and where he was. He confirmed that the repetition of the testing for blood sugar was done ten minutes after 6:00 p.m. He believed that Constable Matyas had told him that he smelled alcohol from the Respondent but had no note of that. He also believed that it was possible that Constable Matyas told him that he could not smell alcohol. When pressed as to using the word “transient” Mr. Bittorf testified that his only memory is that the smell of alcohol was “overwhelming.” He testified that if in fact the Respondent was arrested at 6:02 p.m. the Respondent would still have been with Mr. Bittorf in the ambulance, but did not recall the Respondent being arrested while he was with him in the ambulance. He does recall Constable Matyas attempting to count money found on the Respondent.
Evidence of Constable Matthew Dunn
[27] Constable Matthew Dunn is a Breathalyzer Technician who has worked with the Ottawa Police since September of 2009 and was qualified as a breath technician in 2011. He has requalified each year since then. He has conducted breath tests on approximately 250 to 300 individuals.
[28] Constable Dunn’s interaction with the Respondent was captured on video and audiotape. The tapes were played at the trial and reviewed by me. At 6:26 p.m. Constable Dunn conducted a calibration check of the Intoxilyzer 8000C and it proved to be working properly. He himself did a breath test and it registered zero.
[29] Constable Dunn began his interview with Constable Matyas at 7:18 p.m. At 7:21 p.m. Constable Matyas informed Constable Dunn of his grounds for arrest which Constable Dunn noted. Constable Matyas stated that he had received a call for service, and that he observed a male in a motor vehicle at Woodroffe Avenue and Earl Mulligan Drive, possibly having a medical episode. The four-way lights of the vehicle were activated. Constable Matyas had arrived at the scene at 5:48 p.m. He approached the driver’s side of the vehicle. The motor vehicle was still running. The male was staring straight ahead. Constable Matyas asked the male to roll down the window. Constable Matyas tried the door handle but the door was locked. Constable Matyas indicated that the male appeared confused and eventually rolled down the window. Constable Matyas asked the male if he was okay and the male said that he was. He noted that his speech was very slow and laboured. When he spoke he was very slow at the beginning and would speed up his speech as he progressed through what he was saying. He noted that the driver was just staring straight ahead. Before answering questions he would close his eyes. Constable Matyas said it was like a long blink before the male would answer and then the male would slowly look towards Constable Matyas and then stare straight ahead once he was done talking.
[30] Constable Matyas asked the male if he had consumed any alcohol and the male replied “No.” Constable Matyas asked him if he was diabetic and the male replied “Yes.” Constable Matyas called in the paramedics. The blood sugar levels of the male were checked twice and both times found to be normal. Constable Matyas said that while he was walking the male to the ambulance the male was very unsteady on his feet and Constable Matyas had to hold the male to maintain balance. Constable Matyas spoke with the paramedics and they advised him that they could smell alcohol on the male’s breath. Constable Matyas informed Constable Dunn that at that point he began to believe that the male was impaired by alcohol. After looking at the totality of everything he had observed, Constable Matyas concluded that reasonable and probable grounds existed to believe that the male was impaired by alcohol. Constable Matyas then arrested the male.
[31] At 7:35 p.m. the Respondent’s lawyer called and the Respondent was allowed to speak to his lawyer. At 7:43 p.m. the Respondent was delivered to Constable Dunn. Constable Dunn smelled alcohol from his breath. At 7:46, Constable Dunn informed Constable Matyas that the Respondent wished to speak to his lawyer again. Constable Matyas took the Respondent to speak to his lawyer at 7:48 p.m. and returned him to Constable Dunn at 8:08 p.m. Although they had already been read, Constable Dunn again read the Respondent his rights. Constable Dunn read him a caution, a secondary caution and a demand for a breath sample. The Respondent said he did not understand, that he did not know what to do and that he wanted to speak to his lawyer. He was reminded that he had spoken to his lawyer on two occasions. After much prompting and being threatened with a charge of refusing to provide a breath sample, and being instructed numerous times about how to blow into the machine, the first successful breath sample was finally obtained at 8:32 p.m. It recorded a reading of 232 milligrams of alcohol in 100 milliliters of blood. At 8:55 p.m. a second reading of 228 milligrams of alcohol in 100 milliliters of blood was obtained.
[32] Constable Dunn was asked whether he had formed any belief regarding the ability of the Respondent to operate a motor vehicle. His answer was “Oh, I thought he was drunk. I believe that he was drunk and impaired by alcohol for sure.” He made note of the fact that when the Respondent was directed to take the plastic mouthpiece out of its plastic casing he fumbled and missed the garbage can a couple of times when throwing away the cellophane wrapper for the mouthpieces. During conversations with the Respondent it was noted that the Respondent had a very strong odour of alcohol on his breath. He did not seem to remember Constable Dunn’s instructions as to when and how to provide a breath sample. Constable Dunn noted that the eyes of the Respondent were watery, glassy and bloodshot. His pupils appeared normal and his speech was confused but understandable. He had a pasty kind of speech as if there was no saliva in his mouth.
[33] I would pause to note that having watched the video and audio tape myself, I conclude that throughout his interaction with Constable Dunn the Respondent appeared to be clearly intoxicated.
Evidence of Dr. Daryl Mayers
[34] Because the breath samples were taken more than two hours following the time the Respondent was found in his vehicle, expert evidence was tendered from Dr. Daryl Mayers, a forensic toxicologist with the Centre of Forensic Science in Toronto. Dr. Mayer’s evidence was that the Respondent’s projected blood alcohol concentration at or between 5:29 p.m. and 5:59 p.m. was 230 to 290 milligrams of alcohol in 100 millilitres of blood. This would be consistent with consuming between 7½ and 9¼ standard drinks. A standard drink is defined as 1½ fluid ounces of spirits (40% alcohol), 1 bottle of beer (12 fluid ounces, 5% alcohol), or a glass of wine (5 fluid ounces, 12% alcohol). The assumption is that no large amount of alcohol was consumed just prior to 5:29 p.m. or after 5:59 p.m.
The Reasons of the Trial Judge
[35] The trial judge commenced his judgment by apologizing for the fact that he was rendering it orally and noting that he “would have liked the time to write more and to further
explain some of the reasons and the decisions that [he had] made.” He then decided the case in brief compass. His reasons are reproduced verbatim:
So, this case essentially revolves around the legal issues in respect to the Charter s. 8, s. 9, and s. 10(b) as listed, but it didn’t play much of a role here. The first major issue is whether the arresting officer had reasonable and probable grounds to arrest Mr. Sacca and make the breath demand for a sample into an approved instrument. The second issue is whether the breath demand was made as soon as practicable. I have to find whether or not the Charter violations were minimal such that the evidence would be admitted or significant enough to exclude the evidence.
On the first issue of reasonable and probable grounds, I find that reasonable grounds did not exist in the circumstances. Whether reasonable and probable grounds exist is a fact-based exercise of course, dependent upon all of the circumstances of the case. In determining this issue, I made the following findings of fact.
I find that the evidence of the smell of alcohol at the scene was transient at best and that the officer himself did not note it, but rather relied upon the opinion of the ambulance attendant. I prefer the officer’s recollection of the conversation about alcohol being transient, despite the fact that the attendant in his court testimony recalled the odour as overwhelming. In cross-examination, however, he backed off his evidence in substantial portions and was not firm on those issues.
The attendant had no notes of the conversation. His recollection of his initial contact was replete with “I don’t recall.” His report states that Mr. Sacca was not confused. He was oriented to person, place and time, and that he was not suffering a diabetic attack or any other physical ailments that might have caused his behavior. The ambulance attendant states that it is possible that the officer said “I do not smell alcohol, how about you?” The officer noted that the attendant stated he smelled transient alcohol, but the officer did not investigate the source of the alleged odour.
It is of note that the police officer initially felt that this was a medical problem involving diabetes and had therefore called for the ambulance.
After the ambulance attendant completed his examination and found no physical ailments that might cause the symptoms, he advised the officer. The officer then stated that he began to form a belief that the accused was impaired. This officer was not equipped with a roadside device, nor was he trained, nor did he call for one although one was available.
He did not smell alcohol initially. He indicates in his testimony that he had notes of it later on. In his final notes, he adopts the language of the attendant as to say transient odour, as was indicated. The word “transient” was discussed and it had different definitions, but essentially, it’s fleeting and not permanent.
In my opinion, the conglomeration of the evidence at this stage, along with my comments in respect to the transient odour, only reached the suspicion stage of an investigation.
I note as well that this incident was treated as a diabetic incident. Once that was eliminated, I think that a further investigation regarding the source of the transient smell should have been conducted. A roadside device was readily on call and could have resolved the transient issue. I agree that calling for the roadside device was not mandatory in all circumstances, but it would certainly have been helpful in this situation.
The Crown argues that by calling the ambulance is akin to calling for a roadside device. I disagree. The ambulance attendant is concerned with medical issues and a medical type of report is prepared with little contemplation of its use in legal proceedings.
However, the arrest and the use of a roadside device section of the Criminal Code are finally nuanced. If a police officer has a suspicion, then a demand may be made under s. 254(2), which may result in confirmatory evidence and an arrest pursuant to s. 254(3) would follow if there were reasonable grounds. Clearly, Parliament intended a higher threshold and I adopt that argument as proposed by Mr. May.
As such, with no evidence of the source of the transient smell: was it spilled beer; was it bad clothing; was it some other source other than alcohol consumption; as well, with the other physical features that I indicated the officer’s testimony in chief was minimized during cross-examination, I think that it is not exclusive in respect to the facts that were alleged that it was only consistent with alcohol impairment. There may well have been other sources in respect to the conduct of Mr. [Sacca] and the way he was reacting at the site. This is particularly true of course when the officer is dealing with an individual who is a complete stranger and whose personal characteristics are not known.
In respect to the second issue, as soon as practicable, I find the demand was not made as soon as practicable. The arrest occurred at 6:02 [p.m.]. The Intoxilyzer demand was made at 6:16 [p.m.]. During the twelve minutes, the arresting officer dealt with administrative matters, giving them priority over the rights of the accused. The police officer attempted to count the money. He called the tow-truck. He made notes. He made other observations. But in my opinion, he gave his priority to these issues and not the priority time to the rights of the accused.
In my opinion, all the evidence obtained after the arrest should be excluded pursuant to the principles in R. v. Grant and others.
I believe this was a serious breach and I adopt the comments of Justice Bovard in R. v. Hawkins, and as well the submissions of Mr. May. I believe it was a serious breach that the reasonable and probable grounds are the fundamental principle of our justice system. I think there was a substantial interference with the liberty of the subject.
I think breath samples as well are intrusive. The impact on the Charter, the self-incrimination of course is critical to our system of justice and we carefully scrutinize that. I think there was a huge impact on the accused’s privacy, dignity, and bodily integrity. Although Grant says breath samples are a minor intrusion, again, I adopt the position that he was arrested. He was placed in a cruiser. He was taken to a police station and lodged in a cell. I believe these are serious.
Society’s interest in adjudication of the case on its merits, I believe that reasonable and probable grounds is an important principle. I believe that the officer should be aware that the rights of the accused have to be protected if they want to maintain their cases. I adopt the comments of Justice Selkirk in Horowitz that this protection should not be watered down or reduced.
For all of those reasons, I would exclude the evidence that followed after the arrest.
Ms. MILES: That’s the over-80 charge, Your Honour. You have to deal with the impaired.
THE COURT: Yes. Well, with respect to the impaired, in relation to those, I don’t believe that the evidence is sufficient enough to establish the impairment was in fact by alcohol. I believe that any other evidence obtained after…I just don’t see any other evidence with respect to it. For those reasons, the impaired as well will be dismissed. (emphasis added)
Framework of the Appeal
[36] This appeal is brought pursuant to s. 813 of the Criminal Code, R.S.C. 1985, c. C-46, under which the Crown may appeal based on grounds of fact, mixed fact and law or law alone: R. v. Labadie, 2011 ONCA 227, 275 C.C.C. (3d) 75, at para. 50.
[37] In R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at p. 374, Sopinka J. described the onus on the Crown as “a heavy one.” An accused should not be deprived of an acquittal and sent back for another trial unless the error “was such that there is a reasonable degree of certainty that the outcome may well have been affected by it.”
[38] In this case the trial judge’s findings that there was a breach of the Respondent’s Charter rights and that therefore the evidence must be excluded under s. 24(2) of the Charter are questions of law: R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 42.
[39] A question of law does not involve the correctness of the findings of any facts. However, it does involve the question of whether the trial judge directed himself or herself properly on the law pertaining to an element of a legal construct and on the legal effect of his or her findings of fact on the legal construct (such as the guilt or innocence of the accused or whether what took place met the requirements of the Charter): R. v. Singer, 1932 CanLII 1 (SCC), [1932] S.C.R. 279, at p. 296; R. v. Anderson (1984), 1984 CanLII 2197 (ON CA), 45 O.R. (2d) 225 (C.A.), at para. 12.
[40] The standard of review on an appeal based on a question of law is correctness: R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527 (SCC), at para. 18.
Errors alleged in this Case
[41] The Crown submits that the trial judge erred in law in his understanding of the test for reasonable and probable grounds to make an arrest. Specifically, the trial judge erred by making the test for reasonable and probable grounds more onerous by requiring the facts to only be consistent with alcohol impairment. It is submitted that the trial judge erred in law by finding that reasonable and probable grounds did not exist on the facts of this case. It is submitted that the trial judge misapprehended the evidence with respect to the investigating officer not investigating the source of the odour of alcohol. It is submitted that the trial judge misapprehended the evidence with respect to what transpired in the “twelve minutes” between the arrest and the making of the breath demand and in reaching the conclusion that the demand was not made as soon as practicable. It is submitted that the trial judge failed to apply the “contributing cause” test to determine whether the Respondent was impaired by alcohol.
The Issue of Reasonable and Probable Grounds
[42] In my opinion the trial judge erred in law in his understanding and application of the test for reasonable and probable grounds. Specifically, he erred in law by requiring the facts to only be consistent with alcohol impairment. A conviction for impaired driving can be founded upon evidence not exclusively pointing to impairment by alcohol: R. v. Moreno-Baches, 2007 ONCA 258, 43 M.V.R. (5th) 106, at para. 2. The trial judge effectively required the establishment of a prima facie case in order to arrest. The Supreme Court of Canada has held that a prima facie case is not required: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-51.
[43] In my view the trial judge erred in law by not finding that reasonable and probable grounds existed on the facts. The test for reasonable and probable grounds can be framed as “reasonable grounds for suspicion of guilt”. This standard is a reasonable balance between the individual’s right to liberty and the need for society to be protected from crime. As stated, a prima facie case is not required: Storrey, at p. 250-51. Put another way, reasonable and probable grounds can exist even where there is insufficient evidence to charge the person following arrest.
[44] In cases of impaired driving the issue of whether reasonable and probable grounds exist is not a threshold inquiry in determining whether the officer’s belief was reasonable: R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641, at para. 55. What is required is simply that the facts be sufficient to objectively support the officer’s subjective belief that the motorist was driving while his or her ability to do so was impaired, even to a slight degree, by alcohol: R. v. Wang, 2010 ONCA 435, 320 D.L.R. (4th) 680, at para. 17. The fact that an alternative explanation may exist for an observed indicia of impairment does not mean that reasonable and probable grounds cannot exist: Shepherd, at paras. 22-23. In forming reasonable and probable grounds the officer is entitled to rely on both his own experience and hearsay evidence: Bush, at para. 61. There is no requirement that there be direct evidence of alcohol consumption, either through observation of the individual or by statements from him or her, as opposed to a reasonable inference of alcohol consumption, in order to satisfy the requirement of reasonable and probable grounds. The officer is not required to accept an explanation by the accused. The important fact is not whether the officer’s belief was accurate but whether it was reasonable at the time of the arrest. What must be assessed are the facts as understood by the police officer when the belief was formed: Bush, at paras. 66-71.
[45] In this case the trial judge erred in law in failing to find that reasonable and probable grounds existed. The subjective belief of the officer that there were reasonable and probable grounds to arrest for impaired driving was an entirely rational conclusion on the facts known to him. Indeed, the constellation of facts in this particular case leads to the inescapable conclusion that the officer’s belief was more than reasonable.
[46] The trial judge acquitted the Respondent because he did not believe that the evidence was sufficient to establish that the impairment was in fact by alcohol. In other words, the trial judge was satisfied that the Respondent was impaired but not satisfied that the Respondent was impaired by alcohol. In so finding, the trial judge erred by not applying the correct test. As noted earlier, the test is whether alcohol is a contributing factor. As long as alcohol is a contributing factor to the impairment, it does not matter that anything else may have contributed to the impairment: R. v. Bartello, [1997] O.J. No. 2226 (C.A.), at para. 2. A conviction for impaired driving can be reasonable where the evidence does not exclusively point to impairment by alcohol: Moreno-Baches, at para. 2.
[47] On this ground alone, there should be a new trial.
The Issue with Respect to “As Soon as Practicable”
[48] In my view the trial judge misapprehended the evidence concerning the issue of whether the demand for the breathalyzer test was made as soon as practicable. Specifically, the trial judge found that the arresting officer spent twelve minutes performing “administrative duties”, counting money, calling for a tow truck, making notes and making observations, rather than giving priority to the rights of the Respondent.
[49] To begin with, no analysis was undertaken with respect to the obvious contradiction between the evidence of the arresting officer and the evidence of the paramedic, Mr. Bittorf. Mr. Bittorf arrived a few minutes before 6:00 p.m. and gave his initial set of tests to the Respondent at 6:00 p.m., inside the ambulance, then waited 10 minutes to give a second set of tests, to rule out diabetes. This meant that the Respondent would not have left the ambulance and returned to the arresting officer until after 6:10 p.m. Constable Matyas arrested the Respondent and demanded a breath test at 6:16 p.m. When one factors in the evidence of Mr. Bittorf, there was no delay in making the demand.
[50] Even ignoring the evidence of Mr. Bittorf and accepting the evidence of the arresting officer, namely that he arrested the Respondent at 6:02 p.m. and made the demand at 6:16 p.m., regard must be had for what in fact the arresting officer was doing during that interval. The officer was engaged in, among other things, immobilizing the Respondent after he was initially arrested because the Respondent was resisting arrest and had to be handcuffed. Following that occurrence Constable Matyas made notes pertaining to it. The officer then walked the Respondent from the ambulance to the cruiser. Prior to placing the Respondent into the cruiser he searched him and found a wad of money. He attempted to count it in front of the paramedics but the wind was so strong he was concerned that the money would blow away so he simply placed the money back into the pants of the Respondent. He read the Respondent his rights to counsel, caution and the demand for a breath sample. Thereafter, he arranged to have a tow truck attend to pick up the vehicle of the respondent.
[51] In my view these actions cannot be grouped under the umbrella of “administrative duties”. These actions cannot be framed as prioritizing administrative duties over the rights of the accused.
[52] Had the trial judge not committed this error, there is a reasonable degree of certainty that the outcome might well have been affected by it: Morin, at p. 374; R. v. Horan, 2008 ONCA 589, 237 C.C.C. (3d) 514, at para. 71.
[53] Moreover, the test for determining whether the demand for the breath test was made as soon as practicable is whether the police acted reasonably and not whether the police gave priority to making a demand: R. v. Vanderbruggen (2006), 2006 CanLII 9039 (ON CA), 206 C.C.C. (3d) 489 (Ont. C.A.), at para. 12; R. v. Naidu, 2010 BCSC 851, 95 M.V.R. (5th) 91, aff’d 2012 BCCA 150, 30 M.V.R. (6th) 1.
[54] Once again, on this ground alone, there should be a new trial.
[55] Given these findings there is no necessity in analyzing whether the Grant analysis undertaken by the trial judge amounted to legal error. However, it might be worth stating that the taking of breath samples has been deemed by the courts to be relatively non-intrusive: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 111; R. v. Manchulenko, 2013 ONCA 543, 116 O.R. (3d) 721, at para. 93. Moreover, a consideration of all the evidence would demonstrate that the arresting officer acted with the utmost good faith throughout his interaction with the Respondent, affording the benefit of the doubt to the Respondent from start to finish, including the ruling out of a potential charge of making threats.
[56] In his written factum, Mr. Karimjee invited the Court to overturn the acquittals and substitute verdicts of guilty. As was explored in oral argument, and ultimately accepted by Mr. Karimjee, this Court is not in a position to substitute verdicts of guilty. Verdicts of guilty can only be substituted on appeal when all findings necessary to support a verdict of guilty have been made, either explicitly or implicitly by the trial judge, or otherwise not be in issue: R. v. Courville (1982), 1982 CanLII 3706 (ON CA), 2 C.C.C. (3d) 118 (Ont. C.A.), at p. 125, aff’d sub nom. Courville v. The Queen, 1985 CanLII 37 (SCC), [1985] 1 S.C.R. 847. In this case the trial judge did not make all of the findings of fact necessary to support verdicts of guilty. In such circumstances the only possible outcome is to order a new trial: R. v. Cassidy, 1989 CanLII 25 (SCC), [1989] 2 S.C.R. 345, at p. 355.
[57] In the result the appeal is allowed, the acquittals are set aside and a new trial is ordered on both counts set out in the Information. Counsel are invited to agree on a convenient date for the appearance of the Respondent in the Ontario Court of Justice.
C. McKinnon J.
Released: December 1, 2015
CITATION: R. v. Sacca, 2015 ONSC 7323
COURT FILE NO.: 14-A9381
DATE: 2015/12/01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Appellant
– and –
MICHAEL SACCA
Respondent
REASONS FOR JUDGMENT
C. McKinnon J.
Released: December 1, 2015