Court File and Parties

COURT FILE NO.: SCA(P) 15/18 DATE: 20190513

ONTARIO SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN Respondent Arish Khoorshed, for the Respondent

- and -

SEAN MCGOVERN Appellant Stephen Price, for the Appellant

HEARD: May 1, 2019 at Brampton

REASONS FOR JUDGMENT

[On appeal from the Judgment of Justice R.J. LeDressay dated January 10, 2018]

F. Dawson J.

1Mr. McGovern appeals from the decision of Justice R.J. LeDressay of the Ontario Court of Justice on January 10, 2018 finding him guilty of operating a motor vehicle with a blood alcohol concentration that exceeded 80 milligrams of alcohol in 100 millilitres of blood. The only issue at trial was whether the arresting officer, Cst. Meyer, who also happened to be a breath test technician, had reasonable grounds to arrest the appellant and to make a breath sample demand pursuant to the Criminal Code.

2The prosecution evidence consisted of the testimony of Cst. Meyer and Cst. Jaworski. Cst. Jaworski dealt with the appellant briefly at the station. The appellant testified in his own defence and called a friend who had attended a party where the appellant was in attendance prior to his arrest, to support his evidence that he was not exhibiting signs of impairment by alcohol.

3Cst. Meyer testified that he observed the appellant proceed through a yellow light in circumstances where the officer thought the appellant could have safely stopped his vehicle. He testified that the appellant then made a right turn on a red light at an intersection where a sign prohibited such turns. When he activated his emergency lights in order to stop the appellant to give him a warning he felt the appellant stopped his vehicle in a somewhat unusual location.

4Cst. Meyer testified that the appellant was slow to produce some of his documents and that this raised red flags for him. The appellant also stared at him. Cst. Meyer testified that he noticed a slight odour of alcohol and that the appellant had watery eyes. He said that he thought the appellant’s speech was a little slow and a little slurred. He testified that as a result of these observations he believed he had the reasonable suspicion required for a roadside screening test. He had an approved screening device (ASD) with him in his police car. At that point he agreed he did not have reasonable grounds for an arrest or a breath sample demand.

5However, Cst. Meyer testified that as the appellant was walking towards the police car for the ASD test the appellant stumbled slightly, as if he was dizzy. Cst. Meyer testified that when this was added to his other observations he came to the conclusion that he had reasonable grounds to arrest and to make a demand for breath samples and that he did so.

6Cst. Meyer also testified about the breath test procedure and the observations he made at that time.

7Cst. Jaworski dealt with the appellant briefly at the station. He did not notice some of the indicia of impairment relied on by Cst. Meyer. The video of the breath test procedure was also placed in evidence.

8The appellant and his friend testified that the appellant’s physical abilities were not impaired by alcohol consumption. The appellant contradicted some of the evidence Cst. Meyer gave about his actions. The trial judge explained why he preferred the evidence of Cst. Meyer.

9The appellant submits that the trial judge erred in making his findings of fact and assessment of credibility. In his factum he itemized many such alleged errors focused on how the trial judge analysed the evidence. In oral argument the appellant alleged just two errors. He submitted first, that the trial judge erred in concluding that a single stumble and some slightly slurred speech could elevate the officer’s reasonable suspicion, which would support only an ASD test, to reasonable grounds for an arrest and breath demand. Second, he submitted that the trial judge erred by elevating the evidence of Cst. Meyer above that of the civilian witnesses because Cst. Meyer was a trained police officer. In relation to this submission the appellant relies on R. v. Graat, [1982] 2 S.C.R. 819 [1982] S.C.J. No. 103; and R. v. Winters, [2009] O.J. No. 4184, at para. 18.

10I will deal with the second alleged error first.

11When the trial judge turned to the differences between the evidence of the arresting officer and the appellant, he noted that both the officer and Mr. McGovern might have “genuine recollections” about the events. Then, at para. 73 of his reasons, the trial judge said:

73However, I would note that the police officer was conducting an investigation as part of his sworn duties. He was consciously aware of the indicia of impairment that he was looking for and as a police officer he was experienced in noticing the signs of an impaired driver. This is particularly so when taking into account that the officer was a designated qualified technician. He was keeping notes of his observations. He had no motive to fabricate. In addition there is no indication that his observations or recollection was adversely affected by consumption of alcohol. Finally, there is nothing in the officer’s evidence which undermines his credibility or reliability as a witness notwithstanding that he was inconsistent in explaining his descriptions of Mr. McGovern’s speech.

It is this paragraph which the appellant relies upon to support his argument.

12I do not accept that in this passage the trial judge was proceeding on the basis that the testimony of a police officer is per se entitled to more weight than the evidence of a civilian witness. Rather, the trial judge was taking note of factual matters that led him to place more weight on Cst. Meyer’s evidence in the particular circumstances of this case. The officer, unlike Mr. McGovern, had not been drinking. He was engaged in an investigation as part of his duties. He was actively looking for things he had been trained to look for and was making notes about his observations. It is evident that the trial judge was assessing the comparative reliability of the officer and the appellant based on factual matters founded in the evidence. I also observe that this had nothing to do with lay opinion evidence, which was at the root of the concern expressed in Graat. I am not persuaded that, when the trial judge’s reasons are read as a whole, his comments at para. 73 reflect the error submitted.

13Turning to the appellant’s other submissions, the trial judge provided over 18 typed pages of reasons. In his reasons he meticulously summarized and compared the evidence of the witnesses. In respect of each factual circumstance where some difference existed between the evidence of the witnesses he resolved the factual dispute, explaining fully why he did so. In each situation I find his determinations to be reasoned, reasonable and supported by the evidence. I see no palpable and overriding error in respect of any of the trial judge’s findings of fact, including his findings of credibility. While the question of whether there has been a Charter violation is a question of law and must be reviewed on a standard of correctness, the trial judge’s underlying factual findings are owed deference and are only reviewable on a standard of palpable and overriding error: R. v. M.A.L., [2003] O.J. No. 1050, at paras. 5-6; R. v. Shertzer, 2009 ONCA 742, at para. 71.

14As no factual errors have been established the trial judge’s factual determinations stand and the question is whether they support his legal conclusion that Cst. Meyer had reasonable and probable grounds.

15The trial judge’s reasons demonstrate that he correctly understood the reasonable grounds requirement regarding breath demands set out in s. 254(3) of the Criminal Code, the burden on the Crown to demonstrate reasonable grounds due to the warrantless nature of the search, the relatively low threshold to be met to establish impairment by alcohol, and the standard to be met to establish reasonable grounds to believe in relation to an arrest and breath demand. He cited some of the leading cases in respect of these requirements. It cannot be suggested that he failed to apply the correct standard or took the wrong approach.

16Given the various factors Cst. Meyer testified that he relied upon which I have already summarized, substantially all of which the trial judge found had been established by the evidence, I am far from persuaded that the trial judge erred. The appellant committed two traffic offences, smelled slightly of alcohol, had watery eyes, was slow to produce his documents and stumbled slightly walking to the police car. These were the things Cst. Meyer had to consider in relation to whether he had grounds. Alternative explanations for some of these observations, which came out later in the appellant’s evidence, were not available to the officer when he stopped the appellant.

17The trial judge believed that Cst. Meyer had subjective grounds and correctly determined that the facts established by the evidence which he accepted rendered those grounds objectively reasonable based on a correct articulation of the applicable legal standard.

18The appeal is dismissed.

F. Dawson J.