CITATION: R. v. Kirk, 2016 ONSC 6225

COURT FILE NO.: CR-15-373 (Guelph) DATE: 20161011

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN Respondent Murray de Vos, counsel for the Respondent

- and -

ANDREW KIRK Appellant Peter Thorning, counsel for the Appellant

HEARD: September 29, 2016

REASONS FOR DECISION

[On appeal from the judgment of Mr. Justice N. Douglas, dated July 16, 2015]

Fairburn, J.

A. Overview

[1] On July 16, 2015, Mr. Justice N. Douglas convicted Andrew Kirk of operating a motor vehicle while impaired. The charge of driving with a blood-alcohol level in excess of .80 mgs in 100 mls of blood was stayed on the basis of R. v. Kienapple, [1975] 1 S.C.R. 729.

[2] On his appeal from conviction for impaired driving, Mr. Kirk raises two issues: (1) that the trial judge erred by finding that the police had reasonable and probable grounds to make the arrest; and (2) that the trial judge erred by finding that the identity of the accused had been proven beyond a reasonable doubt.

[3] For the reasons that follow, the appeal is dismissed.

B. General Factual Background

[4] Mr. Troy Gibbons had worked on and off as a bouncer for about 16 years. Following his shift on September 5, 2014, Mr. Gibbons went to a McDonalds drive-thru at 2:30 a.m. While in the drive-thru, his vehicle was hit from behind.

[5] Mr. Gibbons got out of his car and approached the driver of the vehicle that hit him. Applying his experience as a bouncer, Mr. Gibbons formed the view that the driver was impaired by alcohol. He based this conclusion on a number of considerations, including: the driver seemed to have slow and slurred speech; his eyes were only half-open; his eyes were bloodshot; when the driver emerged from his vehicle he was unsteady on his feet and wavering; and, at one point, the driver stumbled. While Mr. Gibbons did not detect an odour of alcohol on the driver’s breath, he testified that he is not particularly good at smelling alcohol. He surmised that this might be a result of the years he has worked as a bouncer.

[6] Concerned over the accident and that he thought that the driver was intoxicated, Mr. Gibbons asked that the police be called. When the police did not arrive right away, Mr. Gibbons asked the McDonalds’ staff to call 9-1-1. The police arrived shortly after this request.

[7] Mr. Gibbons testified that he obtained the driver’s licence and insurance documents for the driver who he identified as the accused, Mr. Kirk. Mr. Gibbons said that he provided the documents to the police officers when they arrived.

[8] Each officer who attended the scene of the accident identified the accused as the man that they dealt with at the scene. They each testified about their observations relating to his level of impairment. I will review this evidence when discussing the law.

C. The Trial

[9] The appellant alleged a s. 9 Charter breach. While the submissions of counsel were not produced on appeal, it appears that a similar argument to what was advanced in this court was advanced before the trial judge.

[10] It is non-controversial that there was a lack of clarity as to which officer actually arrested the accused. While the trial judge agreed that the evidence was not clear on this point, he concluded that it did not matter because “every officer who dealt with the accused had reasonable and probable grounds to make the arrest”. As such, regardless of which officer made the arrest, he or she was operating on subjective reasonable and probable grounds that were objectively reasonable in the circumstances. The Charter application was dismissed.

[11] On the consent of counsel, the evidence given on the voir dire was then applied to the trial proper. It appears that the main argument advanced in closing submissions was that the Crown had failed to prove the identity of the accused beyond a reasonable doubt. The trial judge rejected this submission.

[12] Justice Douglas concluded that it was “obvious that whoever the police were dealing with that night was intoxicated.” He observed that the defence was not about whether the driver was impaired, but whether the Crown had proven beyond a reasonable doubt that it was the accused that was operating the motor vehicle that night. He was alive to the real issue being one of identification evidence and the need for the Crown to prove it beyond a reasonable doubt.

[13] While the trial judge expressed his awareness regarding the frailties of identification evidence, he rejected the suggestion that “in-dock identification is never sufficient” to prove identity. He then reviewed the identification evidence, including that of the civilian witness, Mr. Gibbons. In the end, Douglas J. concluded that the Crown had proven identity beyond a reasonable doubt and the accused was convicted.

D. Issue One: Grounds to Arrest

[14] Three officers attended the scene of the accident. Csts. MacArthur and MacLean testified that Cst. Pusitano arrested Mr. Kirk. Cst. Pusitano testified that Cst. MacArthur arrested Mr. Kirk and then turned custody of him over to her.

[15] The appellant argues that the lack of clarity regarding who made the arrest gives rise to a s. 9 Charter breach. It is said that where the actual identity of the arresting officer is unknown, it is impossible to adequately explore his or her grounds for arrest. In his factum, Mr. Kirk says that there is also a “risk that Douglas J. improperly pieced together what would otherwise be insufficient grounds.” It is further argued that Cst. Positano, who is said to have likely arrested the accused, did not possess sufficient subjective grounds to make the arrest at the time it was made. As such, an arbitrary detention is said to have ensued.

[16] Crown counsel argues that while the accused is right to point out that it is unclear which officer actually arrested the accused, Douglas J. was equally right to conclude that this uncertainty had no impact on Mr. Kirk’s s. 9 Charter right to be free from arbitrary detention. Only two of the officers could have arrested the accused. The trial judge was correct in his observation that each officer had sufficient grounds to justify the arrest.

[17] On any appeal dealing with whether there are reasonable grounds sufficient to justify an arrest, a trial judge must make factual findings. The totality of the evidence must be considered. Appellate courts must show deference to the findings of fact made by trial judges. In the end, though, the ultimate determination as to whether an officer had reasonable grounds to arrest is a question of law reviewable on the standard of correctness. As noted by Rouleau J.A. in R. v. Wang, 2010 ONCA 435, at para. 18:

As Shepherd makes clear, where appellate courts are called upon to review the trial judge's conclusion on the issue whether the officer had reasonable and probable grounds, the appellate court must show deference to the trial judge's findings of fact, but the trial judge's ultimate ruling is a question of law reviewable on a standard of correctness.

See also: R. v. Bush, 2010 ONCA 554, at para. 48.

[18] An officer must have subjectively reasonable and probable grounds on which to base an arrest and the grounds must be objectively reasonable in the circumstances: R. v. Storrey, [1990] 1 S.C.R. 241, at para. 17. As Cory J. explained in Storrey, this means that a “reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest.” See also: R. v. Muller, 2014 ONCA 780, at para. 36.

[19] To justify an arrest for impaired driving, the arresting officer only has to have reasonable and probable grounds to believe that the accused’s ability to drive was “slightly impaired” by alcohol and these grounds must be objectively reasonable in the circumstances. As Durno J. held in Bush, “[t]here is no necessity that the defendant be in a state of extreme intoxication before the officer has reasonable and probable grounds to arrest”. Impairment travels on a spectrum of “slight to great”: Bush, at para. 47; see also, R. v. Stellato (1993), 12 O.R. (3d) 90 (C.A.), aff’d [1994] 2 S.C.R. 478](https://www.canlii.org/en/ca/scc/doc/1994/1994canlii94/1994canlii94.html). Ultimately, the test is whether there are reasonable and probable grounds to believe that the ability to drive is “even slightly impaired by the consumption of alcohol”: Bush, at para. 48; Stellato; Wang, at para. 17-18.

[20] The trial judge carefully reviewed the evidence of each officer on scene at the time of the arrest. He concluded that each officer had sufficient subjective reasonable and probable grounds to believe that the accused was impaired by alcohol.

[21] Cst. MacArthur testified that he arrived on scene at 2:57 a.m. He spoke with Mr. Gibbons who directed him to the driver of the vehicle that had hit his car. He and his two police colleagues approached the driver. Cst. MacArthur pointed to Mr. Kirk as the driver with whom he spoke. He noticed the following indicia of impairment:

(a) Mr. Kirk was on his cell phone when Cst. MacArthur approached. He was told to hang up the phone. He had difficulty doing so and was fumbling with the phone. Eventually he placed the phone into his pocket despite the fact that the phone was still connected to the other person with whom he had been speaking. The officer could still hear the other person’s voice. (b) There was a strong odour of alcohol coming from his breath. (c) The driver’s movements were slow and deliberate. He was “really trying to focus on getting the phone turned off and he couldn’t”. (d) His speech was slurred. (e) His eyes were glossy.

[22] Cst. MacArthur formed the opinion that Mr. Kirk was “obviously impaired”. He testified that Cst. Positano made the arrest.

[23] Cst. MacLean testified that he and his partner, Cst. Positano, arrived on scene at 2:58 a.m. (one minute following Cst. MacArthur). Cst. MacLean saw Cst. MacArthur speaking with the “victim”. He also saw the accused, Andrew Kirk, standing in the area where the vehicles involved in the accident were located in the drive-thru. Cst. MacLean testified that his focus was on the vehicles because there had been an accident.

[24] Like Cst. MacArthur, Cst. MacLean testified that he saw Cst. Positano arrest the accused. He later helped with the search incident to arrest and assisting Cst. Positano with putting the driver into handcuffs. He watched as Cst. Positano read the driver his rights to counsel, caution and breath demand. Cst. MacLean made the following observations:

(a) The driver’s eyes were glassy and bloodshot. (b) The officer could smell a strong odour of alcoholic beverage on his breath. The officer was standing “very close to him” when they spoke. (c) The accused was speaking slowly and had slurred speech.

[25] As Cst. MacLean was more focussed on the vehicles, he did not make other observations at and around the time of the arrest, although he did observe other signs of intoxication following the arrest. He testified that he believed the accused was intoxicated.

[26] As for Cst. Positano, she also testified about her arrival at the scene around 2:58 a.m. She testified about signs of impairment, including:

(a) Mr. Kirk was speaking on his cell phone and not getting off. He was asked to hang up. While he made “multiple attempts” to do so, he had a hard time pressing the “end button” to discontinue the call. (b) Mr. Kirk was avoiding eye contact with Cst. MacArthur. (c) His eyes were “glassed over”. (d) He was speaking very slowly. (e) He was having trouble understanding the questions put to him and was not listening well to what was being said to him. (f) Cst. MacArthur told her that the complainant had said that he had been struck from behind by Mr. Kirk and believed that Mr. Kirk had been drinking.

[27] Cst. Positano formed the view that Mr. Kirk was impaired. She testified that Cst. MacArthur placed Mr. Kirk under arrest for impaired driving and then turned custody of him over to her. She then provided the accused with his rights to counsel, caution and breath demand.

[28] The breath technician, Cst. Matt Oliver, also testified about his observations. Of course, this was following the arrest. Among other things, he noted a strong odour of alcohol, slow and deliberate speech and the need for three attempts to provide a breath sample.

[29] It is clear that both Cst. MacArthur and Cst. MacLean thought that Cst. Positano actually arrested the accused. Cst. Positano thought that Cst. MacArthur made the arrest, but then turned the accused immediately into her charge, including for the administration of the right to counsel, caution and breath demand. Cst. MacLean is clear that Cst. Positano provided the caution, right to counsel and breath demand.

[30] Relying upon Storrey at para. 17, the appellant argues that where there is uncertainty regarding who makes an arrest, an accused is deprived of the ability to explore whether the “arresting officer” had the requisite subjective reasonable and probable grounds upon which to base the arrest. With respect, I do not agree.

[31] Requiring that an officer have subjective reasonable and probable grounds to make an arrest, and that the grounds are justifiable from an objective standpoint, acts as an important safeguard against arbitrary arrests: Storrey, paras. 16-18. Of course, as acknowledged by the appellant, an arresting officer can act on the instructions of another in making a lawful arrest, provided that the instructing officer has sufficient grounds to give the direction to arrest: R. v. Debot, [1989] 2 S.C.R. 1140, at paras. 49-50.

[32] While there is some uncertainty in this case about who actually made the arrest, the trial judge was alive to this fact. He specifically agreed “with defence counsel” that he had to be “satisfied that there was an officer who arrested and that whoever that officer was had the appropriate grounds and that those grounds were reasonable”. He came to the conclusion that it was either Cst. MacArthur or Cst. Positano. Either way, they each had sufficient grounds upon which to base the arrest. I agree.

[33] As noted by the trial judge, this is not a case where the court is forced to piece together different bits of information held in the minds of different officers to arrive upon subjective reasonable and probable grounds. Each officer on scene held subjective reasonable and probable grounds to make the arrest and they were objectively reasonable in the circumstances.

[34] This is not a case where there is a possibility that the arresting officer was not present for examination and cross-examination. To the contrary, each officer on scene was present at trial. Whoever arrested the accused testified and was fully cross-examined. The appellant was not deprived of the opportunity to fully explore the factual matrix informing the arrest in the context of each officer’s evidence.

[35] Nor is this a case where there is a risk that the trial judge improperly pieced together otherwise insufficient grounds of various officers to arrive upon reasonable grounds. Justice Douglas carefully reviewed the grounds of each officer and concluded that, standing on their own, each officer had sufficient grounds to make the arrest.

[36] While the appellant accepts that Cst. MacArthur had sufficient grounds upon which to justify the arrest, he challenges Cst. Positano’s grounds. The trial judge disagreed. So do I. As above, she had ample grounds upon which to form the reasonable belief that the accused’s ability to drive was more than slightly impaired by the consumption of alcohol.

[37] Along with her colleagues, Cst. Positano attended at the scene of an accident in a drive-thru. The accused was alleged to have hit Mr. Gibbons’ vehicle from behind. This set the context for the observations made. She noted that Mr. Kirk’s coordination was off. He had difficulty performing the simple task of turning his cell phone off. Indeed, he made “multiple attempts” to achieve this simple task, something that she could clearly take into account when considering his level of potential impairment. While there may well be explanations for “glassed over” eyes that extend beyond impairment, Mr. Kirk was also speaking very slowly, another possible indicia of impairment. Cst. Positano also concluded that he was having difficulty understanding the questions that were being put to him. All of these factors, and others, informed her view that his ability to drive was impaired by alcohol.

[38] The trial judge did not error in coming to the conclusion that she had reasonable and probable grounds to believe that the accused’s ability to drive was more than slightly impaired by the consumption of alcohol. These grounds were objectively reasonable in the circumstances.

[39] This ground of appeal must fail.

E. Issue Two: Identity of the Person Named in the Information

[40] The appellant argues that the Crown failed to prove the identity of the accused beyond a reasonable doubt. In particular, it is argued that none of the officers testified that they looked at Mr. Kirk’s driver’s licence at the scene of the arrest and confirmed his identity as the same name on the charging Information. While counsel concedes that it is not a legal requirement to obtain the driver’s licence at the scene of the arrest, it is argued that a failure to do so can give rise to a doubt about identity and one exists here. It is said that the trial judge erred by simply relying upon the viva voce evidence suggesting that the accused before the court was the person who was driving the vehicle that rear-ended Mr. Gibbons’ car.

[41] Crown counsel argues that the trial judge was right when he concluded that there was an abundance of evidence pointing toward the accused as the subject driver. The appellant has failed to show any error in the approach of Douglas J. to the issue of identity.

[42] The appellant argues that the Crown must prove that the person named in the information is beyond a reasonable doubt the person who committed the offence. About this there is no doubt. The Crown properly acknowledges it to be the case. The appellant further argues that the Crown failed in its proof. The Crown disputes this suggestion.

[43] The trial judge characterized the identity issue as the core issue for his consideration. He noted that the Crown must prove the accused’s guilt beyond a reasonable doubt on the “essential issues of the case, one of which is identity”. He carefully reviewed the evidence on point and concluded that five people pointed out the accused as the person who they were dealing with on the night in question. He found that it was an “overwhelming case for the Crown” in terms of identity.

[44] The evidence included the following:

(a) Mr. Gibbons testified that the driver of the vehicle that hit him was seated in the “front row” of the courtroom. The trial judge then said: “[t]he guy in the front row would be the defendant who answered to these charges.” (b) Mr. Gibbons was driving a car when he was hit by an SUV in the drive-thru. He testified that he obtained the driver’s identification and provided it to the “arriving police officers”. (c) Cst. MacArthur testified that he first saw the accused standing in front of his Ford Escape that was parked behind Mr. Gibbons’ white car in the drive-thru. Mr. Gibbons was standing beside his car. Mr. Gibbons directed Cst. MacArthur to the man who was standing in front of the Ford Escape vehicle. (d) Cst. MacArthur pointed to the accused as the man who was standing in front of the Ford Escape and who he dealt with at the scene. He testified that he did not see Mr. Kirk’s licence or insurance. (e) Cst. MacLean also pointed to the accused as the man he saw at the scene and who was arrested. (f) Cst. Positano testified that when she arrived on scene she saw Cst. MacArthur speaking with two males and there were two vehicles in the drive-thru, both of which were stopped. One of the males speaking with Cst. MacArthur “was identified as the accused and the accused is Andrew Kirk, 29th of October ’92.” She testified that she obtained the accused’s identification from Cst. MacArthur. (g) Cst. Positano pointed to the accused as the person she understood to be Mr. Kirk. (h) Cst. Positano further testified that she believed she seized Mr. Kirk’s licence at the scene. While she cannot specifically recall how she came into possession of the licence, she had it to prepare his “paperwork”.

[45] While the appellant argues that the trial judge did not refer to the Information and, therefore, did not make any findings that the appellant was the person named in the Information, he was arraigned on that Information and pled not guilty. The obligation on the Crown was to prove beyond a reasonable doubt that it was Mr. Kirk, the accused, who was impaired by alcohol when driving the vehicle that hit Mr. Gibbons’ car. The trial judge was well aware of this fact: “whenever identification raises its head in a case the court must be careful that the Crown proves identification beyond a reasonable doubt.”

[46] The appellant acknowledges that, while it is usually done, there is no requirement for the police to obtain identification at the scene of an arrest. Even so, while she may not have been able to recall how she came into possession of his identification, Cst. Positano was clear that she had Mr. Kirk’s identification at some point that night and she likely obtained it at the scene. She knew his name and date of birth and was able to prepare the “paperwork” from whatever identification she had available.

[47] The trial judge was well aware of the frailties of in-dock identification. He noted that misidentifications can lead to “wrongful convictions” and that courts must be cautious in proceeding on this type of evidence. He demonstrated his awareness of the fact that honest people can be honestly mistaken about identification. He then went through a detailed review of the evidence regarding identification and determined that it had been proven and, in fact, it was an “overwhelming” case of identification. I see no error in this approach.

[48] This is not a case where the Information before the court stood as the sole evidence of identification, linking Mr. Kirk to the crime. Rather, there was a long and robust evidentiary chain of identification from each witness that testified. While I have not reviewed the breathalyser technician’s evidence on identification, even he testified that the person he dealt with was “Andrew Kirk”.

[49] Different things can be used to examine identity. While in-court identification is not essential, it was very much present in this case. It comes from people experienced in making observations relating to others. It comes from five people who had direct involvement with the accused on the night in question.

[50] This ground of appeal must also fail.

F. Conclusion

[51] The appeal is dismissed.

Fairburn, J.

Released: October 11, 2016