CITATION: R. v. Puvtoski, 2016 ONSC 1435
COURT FILE NO.: 17/15
DATE: 20160311
Summary Conviction Appeal
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
MILCO PUVTOSKI
Appellant
Luke Schwalm, for the Respondent
Zachary Kerbel, for the Appellant
HEARD: January 22, 2016
mCwatt j.:
reasons for judgment
[1] The appellant was convicted on December 4, 2014 after seventeen days of trial on charges of operating a motor vehicle with a blood alcohol concentration over 80 milligrams of alcohol in 100 millilitres of blood and one count of impaired operation of a motor vehicle. He appeals the convictions.
[2] The issue on this appeal is the admissibility of a statement the appellant contends was compelled and which established grounds for the police to administer an approved screening device (ASD) and, concurrently, the admissibility of observations made by a police officer while engaged in receiving the statement.
[3] The defence position at trial was that the appellant was statutorily compelled to remain at the scene of the accident and report the details of it to police. As a result, the appellant’s statement made to the police regarding his alcohol consumption and the smell of alcohol the officer noticed were inadmissible pursuant to s. 7 of the Charter of Rights and Freedoms and the cases of R. v. White, 1999 CanLII 689 (SCC), [1999] 2 S.C.R. 417 and R. v. Soules, 2011 ONCA 429 (C.A.).
[4] The trial judge ruled the statement and the officer’s observations as to the smell of alcohol were admissible because she was not taking a report for the purposes of s. 199 of the Highway Traffic Act (H.T.A). With regard to the smell of alcohol, the trial judge found that the officer’s observations of the smell did not result from any compulsion or direct participation from the appellant designed to provide evidence, nor did it stem from any compelled direct participation from the appellant in the making of a traffic accident report under s. 199 of the H.T.A.
[5] The appeal is dismissed for the following reasons.
[6] First, the trial judge did not err when he found that the police officer’s detection of the smell of alcohol from the appellant did not breach his s. 7 Charter rights against self-incrimination. The evidence of the odour did not result from any compulsion or direct participation designed to provide evidence and it did not stem from the appellant being directly compelled to participate in making the H.T.A. report (R. v. Germain, [2012] O.J. No. 3109 (SCJ) at para. 35; R. v. Wenham, 2013 ONSC 7431 at para. 6).
[7] In R. v. Lutchmedial, 2011 ONCA 585, the Court of Appeal dealt with the case of an appellant detained for “bad driving” pursuant to s. 216(1) of the H.T.A., but the police had no grounds to arrest him for impaired driving. Observations made by a breath technician of impairment were not excluded, but breathalizer readings were. The appellant’s conviction on the impaired driving charge was upheld by the appeal court. The court wrote, “A strong line of authority supports the proposition that a police officer’s observations of a lawfully detained suspect are not conscriptive evidence because they were not obtained through the suspect’s participation (Lutchmedial, supra at para. 5).
[8] The appellant in this case was required to remain at the scene of the accident he was involved in (s. 200 of the H.T.A.). The officer’s observations of the smell of alcohol happened twice as she walked to her car with him. There is no evidence the appellant was answering any questions when the officer made her observations. The trial judge found the observations were general ones made while carrying out “other authorized duties” (R. v. Milne (1996), 1996 CanLII 508 (ON CA), 28 O.R. (3d) 577 (C.A.) at para. 40; R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3 at p. 17). He was not wrong to do so.
[9] Once admissible, the odour of alcohol, alone, from the appellant’s mouth allowed her to form reasonable suspicion the appellant had alcohol in his body so that she could make a demand that he supply a sample of his breath into the ASD.
[10] The trial judge did not rely on any of the appellant’s utterances about his consumption of alcohol to conclude the officer had reasonable grounds to make the ASD demand.
[11] Nonetheless, his reasons make it clear he also found that the appellant did not establish, on a balance of probabilities, an honest and reasonably held belief that he was required by law to report the accident to the person to whom the report was given (R. v. White, supra, at par. 75). As a result, the trial judge found that the appellant had not established that s. 7 of the Charter had been violated. The trial judge ruled that the statement was admissible. His Honour described the appellant’s testimony as unreliable and rejected it. It was open to him to make these credibility findings and come to the conclusion he did in this regard.
[12] The evidence also supports the trial judge’s finding of fact that the appellant was not compelled to make his statement under s. 199 of the H.T.A. because he accepted the police officer’s testimony that she had not started the collision report. As a result, his statement was not part of the report. And her evidence supported that conclusion. She testified she had not started the report – the document itself was in her police cruiser. Before speaking to the appellant, she knew he was the driver form the paramedic witness on the scene. She knew as well that the appellant was alone and uninjured from that witness. There was no conversation between the officer and the appellant about the circumstances of the collision and all she told the appellant was that she was investigating the collision and that he was to accompany her to the police car to talk.
[13] The trial judge’s reference to R. v. Parol 2011 ONCJ 292, in paragraph 87 of his reasons, does not affect his reasoning process, which led him to his conclusions about the admissibility of the appellant’s statement. In any event, as I have already set out, the trial judge did not rely on the statement to find the officer’s reasonable grounds to administer the ASD.
[14] As a result, the appeal is dismissed.
McWatt J.
Released: March 11, 2016
CITATION: R. v. Puvtoski, 2016 ONSC 1435
COURT FILE NO.: 17/15
DATE: 20160311
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
MILCO PUVTOSKI
Appellant
REASONS FOR JUDGMENT
McWatt J.
Released: March 11, 2016