CITATION: R. v. McCullough, 2017 ONSC 1252

COURT FILE NO.: 14-1846-AP

DATE: 20170223

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

JAMES McCULLOUGH

Appellant

Moiz M. Karimjee, for the Crown

Michael A. Johnston, for the Appellant

HEARD at Ottawa: 18 January 2017

REASONS FOR DECISION

(Summary conviction appeal)

MEW J.

[1] This is an appeal from conviction recorded by the Honourable Justice Catherine Kehoe of the Ontario Court of Justice at Ottawa on 9 October 2015.

Background Facts

[2] Not long after midnight on 18 November 2013, John Vanwylick was driving his vehicle in the vicinity of Snake Island Road and its intersection with Manotick Station Road, just outside Ottawa. He noticed an overturned pickup truck at the side of the road. James McCullough was inside the truck. He appeared to be sleeping standing up. His feet were on the passenger door; his back was against the bench seat.

[3] Mr. Vanwylick was able to arouse Mr. McCullough and help him get out of the driver’s side door of the vehicle.

[4] Mr. McCullough did not appear to be hurt. He declined Mr. Vanwylick’s offer to summon assistance.

[5] After leaving the scene, Mr. Vanwylick called the police. That call was placed at 12:29 a.m.

[6] Police Constable Christopher Morris arrived at the scene at 12:46 a.m. Mr. McCullough was no longer there. There was a key in the ignition of the overturned vehicle.

[7] At the 2:13 a.m., PC Morris and Police Constable Clinton Danson, having ascertained that Mr. McCullough was the owner of the truck, knocked on the front door of his residence. Mr. McCullough’s wife, Danielle McCullough, answered the door. The officers were invited inside. Mr. McCullough was in the house and, although he did not acknowledge having driven his truck that evening, PC Morris claimed to have smelled alcohol on Mr. McCullough’s breath. Asked whether he had been drinking, Mr. McCullough informed the officer that he had consumed four beers.

[8] At 2:20 a.m., having concluded that he had reasonable grounds for doing so, PC Morris arrested Mr. McCullough for impaired operation of a vehicle.

[9] Mr. McCullough was then transported to a police station where he was placed in the custody of Police Constable Christine Schulz, a qualified breath technician. At 3:46 a.m., PC Schulz made a demand of Mr. McCullough to provide a sample of his breath. Despite four attempts, Mr. McCullough failed to provide a sufficient sample of his breath as a result of which, at 3:57 a.m., PC Schulz determined that there had been a failure or refusal to provide a sample.

[10] Following a trial, Mr. McCullough was convicted of failing and/or refusing to provide a sample of his breath contrary to section 254(5) of the Criminal Code of Canada.

[11] He now appeals against conviction. For the reasons that follow, the appeal is dismissed.

ISSUES

[12] Five grounds of appeal were advanced during the course of oral argument which can be summarized as follows:

a. Was it an error for the trial judge to find that Mr. McCullough had care and control of his truck?

b. Did the trial judge impose a reverse onus on Mr. McCullough to establish post-operation alcohol consumption?

c. Was the finding by the trial judge that Mr. McCullough was impaired unreasonable or not supported by the evidence?

d. Was the demand that Mr. McCullough provide a breath sample lawfully made?

e. Was Mr. McCullough given an adequate opportunity to provide a breath sample?

Relevant Provisions of the Criminal Code

[13] Before considering each of these issues, it should be borne in mind that, pursuant to section 686(1) of the Criminal Code, a court of appeal may allow an appeal where it is of the opinion that:

a. the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence;

b. the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law; or

c. On any ground there was a miscarriage of justice.

[14] The authority for the making of a demand that an individual provide a breath sample is contained in section 254(3) of the Criminal Code which reads, in part:

If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by a demand made as soon as practicable, require the person … to provide, as soon as practicable … samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood…

[15] Section 253(1) of the Criminal Code deals with operation of a motor vehicle while impaired and provides, in part:

Every one commits an offence who operates a motor vehicle… or has the care or control of a motor vehicle…, whether it is in motion or not,

(a) while the person’s ability to operate the vehicle… is impaired by alcohol…; or

(b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.

Care and Control

[16] In order to establish impaired care and control of a motor vehicle, three elements must be established – see R. v. Boudreault, 2012 SCC 56 at para. 9 – namely:

a. An intentional course of conduct associated with a motor vehicle;

b. By a person whose ability to drive is impaired, or whose blood-alcohol level exceeds the legal limit; and

c. In circumstances that create a realistic risk, as opposed to a remote possibility, of danger to persons or property.

[17] If Mr. McCullough did not have care and control of his vehicle, his subsequent conviction for failure or refusal to comply cannot stand.

[18] There can be care and control even if the accused person had no intention to set the vehicle in motion. As Fish J. noted in Boudreault, at para. 42:

In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways. First, an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so; second, an inebriated person behind the wheel may unintentionally set the vehicle in motion; and third, through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.

[19] The trial judge found that Mr. McCullough’s vehicle did present a risk both to Mr. McCullough, asleep in the vehicle, and to the public and other drivers who would not expect an overturned vehicle with its nose on the roadway and could potentially have crashed into it (see trial decision – para. 46).

[20] When Mr. Vanwylick called 911, although he initially advised the operator that Mr. McCullough’s vehicle was not on the roadway and was not impeding traffic, when questioned by the 911 operator, he said “No it’s not blocking traffic. It’s right on the curb but off the road kind of… ”.

[21] When cross-examined, Mr. Vanwylick explained what he meant by a “blind curve”, indicating that one “…cannot see the end of Manotick Station Road because there is a house there and there is trees blocking the whole view of that curve. You can’t see nothing… ”.

[22] In his evidence in chief, Mr. Vanwylick explained his decision to call 911 in these terms:

Well, the vehicle, the nose of it was on the roadway, not on the shoulder; it was on the roadway. It’s a blind curve, so I was concerned that someone would hit that vehicle so I called 9-1-1.

[23] The appellant is critical of the failure of the trial judge to reference the failure of the police witnesses to corroborate Mr. Vanwylick’s evidence about the position of the McCullough vehicle.

[24] Indeed, the trial judge did not have the benefit of any photographs taken by the police showing the position of Mr. McCullough’s vehicle.

[25] And although the trial judge did make reference to the defence argument about the lack of police evidence, it would be fair to say that she did not offer any further analysis on the point.

[26] Trial judges are not, however, obliged to discuss all of the evidence on any given point or answer each and every argument of counsel: In R. v. Tippett, 2015 ONCA 697, the Court stated, at para. 27:

A trial judge is required to consider all of the evidence in relation to the ultimate issue of guilt or innocence. However, as the Supreme Court recently affirmed in R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 17, trial judges are "not obliged to discuss all of the evidence on any given point or answer each and every argument of counsel." While the failure to consider all of the evidence is an error of law, "unless the reasons demonstrate that this was not done, the failure to record the fact of it having been done is not a proper basis for concluding that there was an error of law in this respect": R. v. Morin, 1992 CanLII 40 (SCC), [1992] 3 S.C.R. 286, at p. 296 (Emphasis added).

[27] Ultimately, the question to be answered is whether the trial judge heard evidence which was reasonably capable of supporting her conclusion concerning the guilt of the accused: R. v. Burns, 1994 CanLII 127 (SCC), [1994] S.C.J. No. 30 at para. 14.

[28] As the evidentiary references I have provided clearly demonstrate, the trial judge heard evidence which was reasonably capable of supporting her finding that the actual conduct of Mr. McCullough in relation to the motor vehicle was such that there was a realistic risk of danger to both Mr. McCullough and to other road users as a result of the resting point of his vehicle. Specifically, there was evidence that the nose of the vehicle was on the roadway.

[29] I therefore find no error in the trial judge’s conclusion that Mr. McCullough had care and control of his vehicle.

Post Operation Alcohol Consumption

[30] Mr. Vanwylick had described Mr. McCullough’s demeanour as “seemed to be in a happy mood”. Mr. Vanwylick made no observations as to the sobriety or lack of sobriety of Mr. McCullough. However, despite the absence of any other indicia of impairment, Mr. Vanwylick gave evidence at trial that he believed that Mr. McCullough had been drinking because it was very unusual for someone to be sleeping standing up in a rolled over truck.

[31] PC Morris appreciated that if there were indications that Mr. McCullough had consumed alcohol after leaving the accident scene, he would likely not have had reasonable grounds to make a breathalyser demand.

[32] When the officers arrived at the McCullough residence and were invited inside, they noticed a pair of wet jeans and boots by the front door, which Danielle McCullough confirmed were her husband’s.

[33] Ms. McCullough said she did not know whether her husband was home. PC Morris asked her to check the basement to see if Mr. McCullough was home. When she emerged from the basement, she confirmed that her husband was there and was on his way up. She also confirmed that he had left in the truck earlier and must have returned home when she was asleep.

[34] Ms. McCullough testified that she had not detected any odour of alcohol on her husband, but said he appeared to be in pain when she spoke with him in the basement and throughout his encounter with the police at their home. She reached this conclusion because Mr. McCullough “was tilting his head back and moaning”, although she did not ask Mr. McCullough if he was in pain.

[35] Ms. McCullough advised the officers that she did not know if Mr. McCullough had consumed any alcohol when he got home, but testified that he had not appeared to be drunk, based upon her knowledge of him.

[36] At the request of PC Morris, Ms. McCullough was asked to check around for signs of alcohol consumption, and she did so. She emerged from the kitchen and advised that there was one beer in the sink, but that it was hers from the night before.

[37] Mr. McCullough then came up the stairs from the basement, walking slowly. He stopped approximately three stairs from the top. He confirmed who he was and that he owned a red Chevrolet pickup. He was asked if he had driven it that evening, but did not respond. He told the officers that he had no idea why his truck was in a ditch on the Manotick Station Road.

[38] At that point, PC Morris claims to have smelled alcohol on Mr. McCullough’s breath. He asked Mr. McCullough if he had been drinking to which he did not, initially, respond. The question was asked a second time, and Mr. McCullough responded “just beer”. He quantified that answer and said that he had consumed four beers.

[39] During the course of this questioning, PC Morris says he observed balance issues. He described Mr. McCullough’s movements as a “halo”, during which his swaying roughly traced out a halo. After a few further questions (during the course of which Mr. McCullough never confirmed that he had been driving the vehicle), PC Morris testified that he formed grounds and arrested Mr. McCullough for impaired operation. More will be said later in these reasons, in relation to whether the arrest and demand made by PC Morris were lawful, about the reasonableness of whether there were grounds to arrest Mr. McCullough.

[40] Returning home from the police station after being charged, Mr. McCullough went to his bed in the upstairs bedroom and did not return to the basement. Later that day, Ms. McCullough found two empty beer cans on the floor next to the couch where Mr. McCullough had been sleeping immediately before his arrest. She found these beer cans after she had written down her account of the events of the previous evening (she had been advised by a military friend to write down a contemporaneous account of what had happened and had been told, by the same friend, that once she had done so, she should not change what she had written).

[41] Mr. McCullough argues on appeal, as he did at trial, that the discovery of empty beer cans close to where Mr. McCullough had been sleeping in what was an otherwise (according to PC Morris) “immaculate” house, was evidence of post-operation alcohol consumption by Mr. McCullough. Ms. McCullough explained her failure to find the beer cans when she checked in the basement on the night of the arrest, saying that she had only looked on the coffee table and on the computer desk.

[42] The trial judge noted that the interaction between Mr. Vanwylick and Mr. McCullough had been very short and Mr. Vanwylick was not looking for “indicia of impairment” as one would expect a police officer in the same circumstances to be looking for and noting.

[43] The trial judge found that it would defy common sense that after “rolling the vehicle and walking home”, Mr. McCullough would immediately set to consuming more alcohol. In so finding, the trial judge considered a number of cases involving “bolus drinking” (the consumption of large quantities of alcohol immediately or shortly before driving). In those cases, it was concluded that it can reasonably be inferred that normal people do not consume large quantities of alcohol shortly before, or while, driving.

[44] With respect, I do not agree with the trial judge on this point. As long ago as 1995, the Supreme Court of Canada described “post-driving drinking (or just the claim thereof)” as, in most cases, “an act of mischief intended to thwart police investigators”: R. v. St. Pierre, 1995 CanLII 135 (SCC), [1995] 1 S.C.R. 791 at para. 106.

[45] Defences based on post-operation consumption are typically raised to rebut the presumption that the analysis of a sample of an accused’s breath is conclusive proof of the concentration of alcohol in the accused’s blood at both the time when the sample was taken and the time when the offence was alleged to have been committed: see section 258(1)(c).

[46] In the present case, although no sample was ultimately obtained (about which, more, later in these reasons), the issue of post-operation drinking is raised because, if it had occurred, it would likely have undermined the existence of reasonable and probable grounds to believe that Mr. McCullough may have committed the offence of impaired operation.

[47] Ultimately, and despite her statement that it would defy common sense that Mr. McCullough would have consumed alcohol after rolling the vehicle and walking home, the trial judge did, in fact, consider the evidence put forward by the defence in that regard and concluded (at para. 51 of her decision):

I find that while Mr. McCullough has presented “some evidence”, i.e. the 2 empty beer cans found in the basement the next day after he returned from the police station, to suggest or put the “after the accident” consumption of alcohol in issue, it does not raise a reasonable doubt that Mr. McCullough was impaired when he operated the motor vehicle or when Mr. Vanwylick found Mr. McCullough in the front seat at 00:30 hours for the following reasons:

i. There is no evidence before the Court as to when Mr. McCullough consumed the 2 beers, or that he did consume the beers;

ii. Ms. McCullough was asked to check the residence to determine whether there had been any recent consumption of alcohol by Mr. McCullough including the basement, which she did.

iii. Ms. McCullough did not note finding two beer cans in her written (typed) statement when she was conscious that she should note all details.

iv. Ms. McCullough could not say when the 2 beers would have been consumed and did not say, specifically, that they were consumed by Mr. McCullough.

[48] I do not read the trial judge’s reasons as somehow reversing the onus of proof (as the appellant alleges). Nor do I find that her comment that it would have defied common sense for Mr. McCullough to have consumed alcohol after operating his vehicle coloured her assessment of such evidence of post-operation consumption as there was.

[49] In R. v. Saachi, [2013] O.J. No. 6033 (S.C.J.) at para. 34, Beaudoin J., sitting as a summary appeal court, indicated that the onus of proof is not reversed by the trial judge considering the absence of evidence exculpating an accused.

[50] The trial judge concluded that the evidence adduced by the defence concerning post-driving consumption did not raise a reasonable doubt in her mind that Mr. McCullough was impaired when he was in care and control of his truck. It was open to her to discount or reject the evidence of the empty beer cans found later in the day of Mr. McCullough’s arrest as supportive of the possibility of post-operation alcohol consumption.

[51] It must also follow that, given the trial judge’s rejection of the evidence concerning post-driving consumption, that the formation by PC Morris of reasonable and probable grounds cannot be impeached on this basis.

[52] Once again, the conclusion which the trial judge came to on the evidence was one that she could reasonably have come to, having regard to all of the evidence.

[53] I therefore reject this ground of appeal.

Misapprehension of Evidence

[54] Submissions premised on an alleged misapprehension of evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (ON CA).

[55] The thrust of the appellant’s argument is that the trial judge failed to consider alternative explanations for each indicia of impairment relied upon by the trial judge in her finding of guilt.

[56] According to the appellant, the trial judge’s finding of impairment was based on the following indicia:

a. The appellant had been involved in an unexplained accident;

b. Mr. Vanwylick’s belief that the appellant had been drinking alcohol;

c. The appellant had displayed common signs of impairment at his home, including slow and unsteady movement, poor balance and the “halo” effect, a smell of alcohol on his breath, blood shot eyes, slow speech and staring into space.

[57] In doing so, the appellant says that the trial judge ignored or misapprehended important evidence that neutralized or explained each of the indicia of impairment:

a. The unexplained accident happened at night during a windy rain storm near a curved part of the highway while the appellant was driving on bald tires.

b. Mr. Vanwylick observed none of the common signs of impairment.

c. The appellant had been sleeping between the time of the alleged care or control and his interactions with the police.

d. Ms. McCullough described her husband, who had just been in a car accident, as appearing to be in pain and rubbing his neck in response to that pain.

[58] The appellant complains that the trial judge considered only the windy and rainy weather in her explanation of why Mr. Vanwylick may not have smelled alcohol on the appellant. But taking into account of not only the wet and windy weather, but also that the appellant had just been in a car accident and may have suffered injury or pain, combined with the intervening opportunity of at least 1.5 hours in which to consume alcohol, the appellant argues that there is evidence of an innocent alternative explanation for each of the indicia of impairment relied upon by the trial judge in her finding of guilt and that such innocent alternative explanations raise a reasonable doubt, especially when considered together.

[59] Specifically, the reasons of the trial judge do not disclose that these alternative explanations were considered.

[60] Furthermore, there is a distinction between misapprehension of the evidence and the trial judge choosing to interpret the facts differently than a party desires.

[61] It is not simply sufficient to state that the trial judge failed to consider all of the issues: R. v. Tippett, supra.

[62] If, having regard to the whole of the evidence, it was open to the trial judge to come to the conclusion that Mr. McCullough operated his motor vehicle while impaired, that conclusion can not be interfered with by an appeal court. A conviction will be reasonable even if the facts do not exclusively point to impairment.

[63] In my view, the findings of the trial judge were reasonable, and were supported by the evidence.

Demand for Breath Sample was Unlawful

[64] The appellant argues that the conviction of the appellant for refusal to provide a breath sample should not stand because the demand to provide a breath sample was not properly made: the arresting officer did not know if Mr. McCullough’s truck had been operated in the past three hours.

[65] Mr. McCullough was arrested at 2:20 a.m., one hour and 49 minutes after Mr. Vanwylick made his 911 call. PC Morris admitted that he did not know when the truck had last been operated. Accordingly, he agreed that there was an element of speculation in his belief that Mr. McCullough had operated his vehicle in the three hour time period prior to his arrest. He explained his thought process in these terms during the course of his evidence at trial:

As far as a time is considered, I mean, there’s a three-hour time limit for breath that’s supposed to be used for the purposes of proving impairment or over 80. I was only at an hour and fifty at that point, based on what I said before in my testimony, there was fairly regular vehicular traffic on the roads on that night. So, to believe that dozens of people drove by an overturned vehicle on the side of the road without stopping to assist somebody and stopping to call the police, especially in Ottawa, which from my experience since being here has been a fairly kind city when it comes to civilians and people wanting to assist. I just couldn’t believe that the vehicle sat there for almost an hour upside down with people driving by.

[66] The appellant argues that, given the speculative nature of PC Morris’ evidence, the demand that Mr. McCullough submit to a breath test cannot be said to have been based on reasonable grounds, and it was an error for the trial judge to have found otherwise.

[67] To establish the existence of reasonable and probable grounds to make an arrest, the Crown must establish that a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 SCR 241, at paras. 16-17.

[68] Although the threshold of “reasonable and probable” grounds is a low one, there must be a constellation of objectively discernable facts amounting to reasonable and probable grounds for there to be a lawful arrest without warrant: R. v. Hall, 1995 CanLII 647 (ON CA), [1995] O.J. No. 544 (C.A.) at para. 31; R. v. Abdul-Hamid, 2013 ONSC 1744, [2013] O.J. No. 1328 (S.C.J.) at para. 39.

[69] The belief of PC Morris does not have to have been accurate or correct. It is sufficient that it was reasonable at the time of arrest.

[70] In her decision on a Charter application, brought at the outset of the trial, the trial judge discussed at some length the evidence of PC Morris’ reasons for his belief concerning the time of driving. From a review of those reasons of the trial judge, it is clear that she was more than alert to the factors that informed the conclusion by PC Morris that he had reasonable and probable grounds to arrest.

[71] There were sufficient facts to objectively support the officer’s subjective belief that Mr. McCullough was driving while his ability to do so was impaired, even to a slight degree, by alcohol. That is enough for the formation of reasonable and probable grounds: R. v. Wang, 2010 ONCA 435 at para. 17; R. v. Sacca, 2015 ONSC 7332 at para. 44. As McKinnon J. explained in R. v. Sacca (at para. 44):

… In forming reasonable and probable grounds the officer is entitled to rely on both his own experience and hearsay evidence… . 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.

[72] The fact that there was an element of speculation on the officer’s part does not render his belief unreasonable. His speculation was informed by rational considerations, including the typical behaviour of citizens in such circumstances and his expectations as to the volume of traffic and the number of times that a vehicle would pass by the scene of the accident.

[73] Having regard to all of the circumstances, there was, in my view, an ample basis for the acceptance by the trial judge of the reasonableness of the belief by PC Morris that reasonable and probable grounds for arrest existed.

[74] This ground of appeal is, therefore, also rejected.

Failure or Refusal to Provide Breath Sample

[75] For the sake of completeness, although the ground was not addressed in oral submissions, I do not accept the argument advanced in the appellant’s factum that the trial judge failed to consider or appreciate the import of what the appellant describes as “circumstantial evidence” that he was still attempting to blow into the breathalyser when the breathalyser technician terminated the procedure.

[76] I accept the following submission made by the Crown:

… There was ample evidence for the trial judge to conclude that the appellant failed to provide a breath sample. In respect of the charge of refusal, Officer Schulz testified that the machine was in working order; the Appellant was given instructions on how to provide a breath sample however he would start to blow and a second or two later he would stop. The appellant’s cheek would puff out as his stopped blowing which would suggest to Officer Schulz that the appellant was not pushing air out. The officer was also satisfied that the mouth piece was in working order without any obstructions. The trial judge found that the appellant “…attempts to feign that he is trying by saying that he did not stop blowing or asking how else I can blow”.

[77] It is not necessary for the appellant to have willfully failed to provide a sample. It is sufficient that he had knowledge or awareness of not having complied with the demand: R. v. Porter 2012 ONSC 3504, [2012] O.J. No. 2841 (S.C.J.).

DISPOSITION

[78] For the foregoing reasons, the appeal is dismissed. The conviction and sentence imposed by Kehoe J. stand.

Graeme Mew J.

Released: 23 February 2017

CITATION: R. v. McCullough, 2017 ONSC 1252

COURT FILE NO.: 14-1846-AP

DATE: 20170223

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

– and –

JAMES McCULLOUGH

Appellant

REASONS FOR DECISION

On appeal from the decision of

Justice Catherine Kehoe, Ontario Court of Justice,

at Ottawa, on 9 October 2015

Mew J.

Released: 23 February 2017