CITATION: R. v. McLarty, 2017 ONSC 6962
COURT FILE NO.: 17-4000000-00AP
DATE: 20171122
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Atekel McLarty
BEFORE: Justice S. Nakatsuru
COUNSEL: M. Halfyard: Counsel, for the Appellant McLarty
M. Mandel: Counsel, for the Respondent Her Majesty the Queen
HEARD: November 17, 2017
ENDORSEMENT
[1] Mr. McLarty appeals his conviction for operate motor vehicle over the legal limit. On March 30, 2017, Justice C. Brewer convicted him. Her written reasons are thoughtful and thorough. They are also correct. For substantially the reasons given by her, I dismiss Mr. McLarty’s appeal.
[2] Here are the brief reasons why. The appellant raised three arguments: 1) that Justice Brewer erred in finding that the arresting officer did not have a reasonable suspicion to ground the ASD demand in that he did not smell an odor of alcohol coming from the appellant’s breath; 2) alternatively, that trial judge erred in finding that the ASD demand was made “forthwith”; 3) the trial judge erred in finding there was no violation of the appellant’s right to counsel as guaranteed by s. 10(b) of the Charter.
[3] First of all, the appellant argued that P.C. Salcedo-Tigse, who gave the ASD demand, did not have objective and subjective grounds to reasonably suspect Mr. McLarty had alcohol in his body when he was operating his car. Justice Brewer concluded that the officer did. After considering the evidence and the careful reasons given by the trial judge, I find that no error was committed. Justice Brewer was well aware of the testimony given by the officer where he said at some points he was “iffy” and “on the fence” about whether he smelled alcohol on the appellant’s breath. However, the totality of P.C. Salcedo-Tigse’s testimony must be considered. P.C. Salcedo-Tigse was a very inexperienced officer. He had only been on the force a few months. He was still on probation. While he had been involved in other RIDE programs, this was the first impaired investigation he had handled. Furthermore, when the appellant was questioned by the officer, he was chewing gum and denied drinking any alcohol. P.C. Salcedo-Tigse did not see the usual signs of impairment that he was trained to spot. These circumstances explain his testimony regarding his uncertainty of the odor. However, at other points both in examination-in-chief and cross-examination, his testimony was more definitive that he smelled alcohol. Justice Brewer was alive to this factual context and the testimony given by the officer. She found that his suspicion crystallized when the officer was in the scout car running checks on the appellant. Her factual finding that P.C. Salcedo-Tigse smelled an odor of alcohol that was more than a hunch or a mere suspicion, should be afforded deference. Given the nature of the testimony that he gave and Justice Brewer’s advantage in seeing and hearing the witness, I find no palpable or overriding error was made in that factual finding.
[4] While the standard is one of correctness in terms of whether the factual finding amounted to reasonable grounds to suspect that the appellant had alcohol in his body, the odor of alcohol in the factual matrix of this case provided both the subjective and objective grounds to make the ASD demand: see R. v. Lindsay, 1999 4301 (ON CA), [1999] O.J. No. 870 (C.A.). Therefore, this ground of appeal is dismissed.
[5] The second issue was more concerning to me. An ASD demand must be made “forthwith” once the issuing officer has reasonable grounds to suspect. In this case, P.C. Salcedo-Tigse had nothing other than the odor of alcohol. He testified that he first smelled the odor upon speaking to the appellant soon after the officer located Mr. McLarty’s car and asked for his documents at around 11:55 p.m. The appellant had driven through a RIDE stop. He questioned the appellant as to why he was smelling alcohol despite the appellant’s denials. When another officer arrived, he asked her to check to see if she could smell alcohol in the car. At 12:03 a.m. P.C. Salcedo-Tigse returned to his cruiser to conduct computer checks on the Mr. McLarty’s documents. At 12:08 P.C. Salcedo-Tigse exited his cruiser and within a minute the officer made the ASD demand. Two minutes later, the appellant gave a breath sample that produced a fail result.
[6] A key factual issue was when P.C. Salcedo-Tigse believed he had reasonable grounds to suspect.
[7] P.C. Salcedo-Tigse was neither clear nor consistent on this issue. He does not appear to be the most articulate of police witnesses. That said, in her reasons, Justice Brewer recognized that the officer admitted in cross-examination that he knew he had to provide an ASD forthwith upon forming a reasonable suspicion and that the odor of alcohol, the only basis for his reasonable suspicion, was enough to justify a demand. He also testified that he did his computer checks before giving the demand because he believed that was his training. On the other hand, when he was specifically asked when he stopped being “iffy” about the smell of alcohol, he testified that it was when he got out his cruiser. That was when he was sure. That was when he was not satisfied that Mr. McLarty was not drinking. P.C. Salcedo-Tigse testified that he wanted something more solid to go on when he was doing his computer checks.
[8] The appellant argues that if I find that P.C. Salcedo-Tigse objectively and subjectively had reasonable suspicion, the officer had this reasonable suspicion from the moment he smelled the odor. Thus, it is submitted that giving a demand some 13 or 14 minutes later did not comply with the immediacy requirement of s. 254(2) of the Criminal Code.
[9] I have carefully reviewed the evidence. Certainly it was open for Justice Brewer to conclude on the totality of the evidence that the officer had in fact formed his reasonable grounds from the moment that he smelled alcohol and that he deliberately delayed giving the ASD demand because he wanted to conduct the computer checks first. However, Justice Brewer assessed the officer’s evidence differently. She found that the officer was uncertain initially about whether he personally believed he had the grounds. She states in her reasons that “she is satisfied that the officer needed some time to consider his position and that he contemplated how to proceed during the five minutes he took to carry out the computer checks.” This finding was a reasonable one to be made when I look at the whole of P.C. Salcedo-Tigse’s testimony rather than at isolated parts of it. In my opinion, Justice Brewer’s view of that testimony should be afforded deference. Given the sometimes confusing and contradictory nature of the officer’s testimony, the trial judge was in a better position to assess and determine what parts she was going to accept. I also emphasize that in addition to P.C. Salcedo-Tigse’s testimony, Justice Brewer had the evidence of a forward-facing in-car camera video taken of the stop that detailed what took place between the officer and the appellant. She could also resort to this in determining what happened and what was in the officer’s state of mind as the investigation progressed. The trial judge was alive to all of this. She made her findings. I have not been persuaded that those findings can be undermined on this appeal.
[10] Based on those findings, Justice Brewer concluded that the demand was made forthwith and that there was no violation of the Charter. In my opinion, accepting those factual findings, her Charter analysis was correct. No error has been shown. I reject this ground of appeal.
[11] With respect to the final ground of appeal regarding the right to counsel at the roadside, this was a RIDE stop and the ASD was present at the scene. Justice Brewer concluded that there was a 15 minute delay from the time Mr. McLarty was detained and when the ASD test was completed. It appears that she used this period of time in determining whether a s. 10(b) violation had been proven.
[12] Right to counsel on an ASD detention is suspended. However, it is only suspended if the immediacy requirements of s. 254(2) are complied with. This means in most cases, that the demand, test, and response are made immediately: see R. v. Quansah, 2012 ONCA 123.
[13] In my opinion, the demand was lawfully and properly made at 12:09, about a minute after P.C. Salcedo-Tigse had formulated his reasonable grounds to suspect and had exited his cruiser to make the demand. Thus, as counsel conceded on the appeal, the relevant period of time in question is about a minute from the formulation of the grounds and the making of demand. It was an additional minute before Mr. McLarty blew a fail at 12:11. The appellant conceded on appeal that no violation of s. 10(b) could be established based upon this sequence if I properly found that the demand was made forthwith. Thus, Justice Brewer may have gotten the relevant period of time that needed to be assessed incorrect. But this certainly does not help the appellant.
[14] The appeal against conviction is dismissed.
Justice S. Nakatsuru
Date: November 22, 2017