R. v. Giannone, 2015 ONSC 823

BARRIE COURT FILE NO.: CR-14-136

DATE: 20150206

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

PASQUALE GIANNONE

Appellant

K. Hull, for the Crown

D. Burke, for the Appellant

HEARD: February 2, 2015

REASONS FOR DECISION

On appeal from the decision of The Hon. Mr. Justice J.C. Crawford

dated May 16, 2014

MULLIGAN J.:

[1] The accused, Pasquale Giannone appeals his conviction by The Hon. Mr. Justice J.C. Crawford on May 16, 2014, on a charge under s. 253(1)(b) of the Criminal Code of Canada (over 80).

[2] The appellant bases the appeal on the following grounds:

• The investigative detention of Mr. Giannone while he was in a private parking lot was unlawful and arbitrary, breaching his s. 9 Charter rights and therefore the arrest and search and seizure of breath samples that followed this detention were thus unlawful and unreasonable, violating his s. 8 Charter rights.

• Based on the evidence at trial, the honourable trial judge misapprehended the evidence and fell into legal error.

[3] The appellant is therefore seeking an order allowing the appeal, quashing the conviction and entering an acquittal, or in the alternative, an order allowing the appeal, quashing the conviction and ordering a new trial.

Facts

[4] Many of the facts are not in dispute. The Crown called as its witness, P.C. Gwyn Seymour. Officer Seymour has been with the O.P.P. since 2000, and has been stationed at the Huronia West Detachment since 2003. His evidence was that he did ten to fifteen drinking and driving investigations per year.

[5] During the early morning hours of July 6, 2012, he was on general patrol in the downtown Wasaga Beach area. While stationed in a private parking lot, he observed the appellant’s vehicle in an adjacent private parking lot. He testified that based on his observations, he moved his vehicle to the adjacent parking lot and pulled up behind the appellant’s vehicle with lights activated. I will review his evidence as to why he did so in a moment. When he arrived at the appellant’s vehicle, the appellant exited his vehicle and spoke to the officer. The officer detected an odour of alcohol and based on the driving movements he observed, placed Mr. Giannone under arrest. Breathalyzer readings subsequently taken and admitted into evidence at trial indicated that Mr. Giannone’s readings were over 80 mg of alcohol in 100 millilitres of blood.

[6] In rendering a conviction, the honourable trial judge issued a 39-page decision. On the issue of whether or not a Charter breach occurred, he stated:

I next consider whether any Charter breach occurred, with reference to the private property issue raised by the defendant. Regarding the Charter argument based on the location of the stop, I find that Officer Seymour had a right to enter the private parking lot to check the defendant’s motor vehicle. At least in the situation of a, an observed non-random – sorry – at least in the situation of a non-random act as in the case at bar, where the officer’s act was responsive to his perception of a motor vehicle’s unusual operation. In the present case, I accept the evidence of Officer Seymour as to his observations of the defendant moving his motor vehicle back and forth, more than once, for no apparent reason, and I reject the evidence of the defendant to the contrary.

[7] The appellant’s submission is that there is no general right to random stops of individuals within vehicles in private parking lots. The Crown does not dispute that submission, but submits that this was not a random stop. The officer had reasonable and probable grounds to investigate Mr. Giannone based on the observations of the officer and the movements of the vehicle within the parking lot. The officer’s evidence in chief at trial provided the following:

A. No difficulty at all seeing the vehicle. I observed the tail lights of the vehicle. I observed the headlights of the vehicle. I could actually see the brake lights coming on the vehicle. It was clearly visible that the vehicle had been moving. There was no obstructions whatever. …The vehicle was backing up, attempting to make either a left or right-hand turn, but then moving forward again, and my concern was that he was having troubles manipulating where those armour stones [a dividing barrier between parking lots] were originally.

[8] The officer then moved his vehicle from the parking lot he was in and moved toward the parking lot where Mr. Giannone was parked. As he stated:

As I’m pulling into the parking lot, I noticed the vehicle pull forward five to eight feet, stop, saw the brake lights come on, the lights shut off, and the gentleman before the court exiting his vehicle.

The officer indicated that the parking lot itself was small, perhaps one that would hold about thirty vehicles, and he did not recall seeing any other vehicles or pedestrians. As to the reason for the stop, the officer indicated:

At that time, my concern was either, you know, he is having a medical issue, trying to back out of the, out of the spot? My concern was for his safety. Why was he having a hard time backing or manoeuvering his vehicle from this parking lot? It seemed to have no obstructions, as I’m driving in. He’s standing outside his vehicle, and then I start asking him some questions to make sure he was okay. …My concern, you know, with it being in an entertainment area, the bars just stopped serving alcohol, people are now leaving, his ability seemed to be, to back up that vehicle, seemed to be impaired by – for some reason, and I just wanted to ascertain whether it was medical, whether it was due to drinking.

[9] In cross-examination, the officer answered certain questions from Mr. Giannone, who was self-represented. As he stated:

A. Your actions were very suspicious.

Q. Say I had a heart attack. Wouldn’t you want to get to me in the easiest possible manner?

A. Yes, but I have to do it safely, and I have to make sure that if you’re committing a crime, that I’m able to stop you.

[10] As to the number of times the vehicle appeared to move, Officer Seymour stated in cross-examination:

It would have rolled once, but not three times, but it could have, in the explanation for the first time. But I saw it move forward as well. …I do believe I said it was at least twice that I saw it roll back and forth, and when I pulled in behind you, I remember saying – I remember seeing it pull forward at least three or four feet and stop.

Analysis

[11] The Crown relied on R. v. McClelland, [2012] O.J. No. 6022. M.H. Tulloch J., as he then was, reviewed the authorities in a summary conviction appeal case strikingly similar to the case at bar. As Justice Tulloch noted in that case, the officer was on patrol after 2:00 a.m., and observed the appellant in a private parking lot of a bar. As Justice Tulloch noted at paras. 3-4:

The officer observed a white Honda Civic in the parking lot, stationary but running with the lights on. The appellant was in the driver’s seat, along with two passengers. Const. Shirley pulled his car behind the appellant’s car, inside the parking lot. As he exited his car and moved towards the appellant’s car, the appellant moved her car forward into the next parking spot.

The officer then detained the individual and later arrested her for impaired driving.

[12] Justice Tulloch agreed that the Highway Traffic Act does not apply to private property and thus random stops are not permitted. However, he found in that case that the officer was operating under common law ancillary powers to detain for investigative purposes.

[13] Justice Tulloch reviewed the applicable authorities and in upholding the conviction, stated at para. 27:

In all the circumstances, I find that Const. Shirley was acting within the purview of the above mentioned duties when he pulled into the parking lot to ensure that there were no drug offences and to ensure that no patrons of the bar were going to drive home intoxicated.

As Justice Tulloch continued at para. 30:

The key issue here is whether or not there was “reasonable suspicion” on the part of the officer per Mann, or an “articulable cause” per Simpson. In other words, was the officer’s subjective belief based on objectively verifiable indicators? In my view, it was. [Citations omitted.]

[14] I am satisfied that Mr. Giannone’s appeal from conviction ought to be dismissed. Officer Seymour observed the vehicle in motion. That observation created concerns in his mind: was there a medical issue? Was there impairment? It was after 2:00 a.m. in a parking lot near bars, shortly after closing hours. The officer then positioned his vehicle in such a fashion that Mr. Giannone could not move from the spot. The suggestion by the appellant that the officer should wait to see if Mr. Giannone would move his vehicle onto the public highway ignores the public safety aspect of this officer’s duty. If there was a medical issue involving the driver, or if there was impairment, the driver and/or the public would be placed at risk.

Conclusion

[15] Officer Seymour had reasonable suspicion to investigate and detain Mr. Giannone based on the observations he made about the vehicle’s movements in a parking lot that was otherwise unoccupied after 2:00 a.m. Accordingly, the appeal is hereby dismissed.

MULLIGAN J.

Released: February 6, 2015