R. v. MacPherson, 2010 ONCJ 745

NEWMARKET COURT FILE No.: 08-10957 Citation: R. v. MacPherson , 2010 ONCJ 745 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — KEVIN MACPHERSON Before Justice Peter P. Bourque Heard on February 3, 2010 Reasons for Judgment released on April 29, 2010 K. Hutchinson ............................................................................................................ for the Crown D.

Moore .................................................................................... for the accused Kevin MacPherson Bourque J.: [ 1 ] The defendant is charged with impaired driving and driving with excess alcohol, on November 3, 2008, while driving up the # 404 Highway at approximately 4:20 p.m. What makes this case unique is the fact that the investigation was commenced by an off duty Metropolitan Toronto Police Service inspector. THE EVIDENCE [ 2 ] Inspector David Brown of the Metropolitan Toronto Police Service was “off duty”, but in an unmarked police cruiser driving northbound on # 404 Highway.

He was “on call”. He was out of range of his Toronto Police Service radio but he had a cell phone. [ 3 ] While in stop and go traffic he noticed a vehicle behind him which had changed lanes (there was honking) and it went briefly onto the left shoulder before coming up behind the police car. He described the car as coming very fast up behind him and he thought there would be a collision.

The vehicle behind stopped abruptly. [ 4 ] He then moved forward several car lengths and the vehicle following did not move at first but when it did, it accelerated very quickly and again the officer thought there may be a collision but the vehicle stopped very close to the officer’s vehicle. [ 5 ] The officer got out of his vehicle and went back to the defendant who was alone in the car that was following the officer. [ 6 ] The driver was not looking right at him. The officer identified himself with his badge and said, “What is your problem? Twice you almost hit me”. He looked in my direction. He said, “Sorry”.

I said, “Have you been drinking”? He said, “No”. The officer asked for his licence and the defendant fumbled with it before handing it over. The officer asked again if he had been drinking and the defendant said that he had “one pint”. The officer asked the defendant to drive his vehicle onto the left shoulder and the defendant did so. [ 7 ] The officer smelled alcohol from the driver’s breath, the driver was dazed and looked confused. The defence stated that he was not capable of driving.

His eyes appeared watery and glossy and he was fumbling and mumbling something the officer did not hear. [ 8 ] The officer formed the opinion that he was impaired and he told the defendant to wait in his car. He went to his cruiser and called the O.P.P. on his cell phone. An O.P.P. officer came within eight to ten minutes.

Officer Brown spoke to the O.P.P. officer and gave him his grounds (as described above) and the O.P.P. officer spoke to the defendant for thirty to forty-five seconds and then arrested him. [ 9 ] Officer Brown said that he first saw the defendant at 4:20 p.m. and his dealings with him were over by 4:25 p.m. The O.P.P. officer came some eight to ten minutes later. [ 10 ] The officer said while he had reasonable and probable grounds to arrest the defendant he did not do so because:

▪ it was a busy highway, and he was afraid for the safety of the defendant or himself if the defendant should bolt or give him difficulty; ▪ he did not have handcuffs or a caged rear seat in his cruiser; ▪ he was not equipped to make an arrest and believed that the O.P.P. would attend shortly; and, ▪ he had not made a civilian arrest in many years, and he did not have the appropriate warnings or cautions to give to the defendant. [ 11 ] In cross-examination the officer admitted that the time of his call to the O.P.P. was 4:29 p.m. and thus he may have stopped the defendant’s vehicle after 4:20 p. m.

He also stated that he was not performing any traffic duties and did not cite his powers under the Highway traffic Act . However, he stated that because of the manner in which the defendant was driving he felt that an accident would eventuality happen, and he had some suspicion by the manner of driving that the defendant would be impaired. [ 12 ] Officer Dan Zarrello is a police officer and a twenty year veteran with the O.P.P. He responded to the call and arrived at the scene at 4:42 p.m.

He spoke with Inspector Brown who told him about the driving observations, the fact the defendant admitted to drinking, and that he felt the defendant was impaired. [ 13 ] Officer Zarrello attended the driver’s window where the defendant was seated and observed bloodshot and glassy eyes. He detected an odour of alcohol coming from the defendant when he laughed. The defendant admitted having two pints of beer. The defendant’s speech was slow and slurred. At 4:45 p.m. the officer asked him to step out of the car and the defendant walked back to the cruiser with slow and planned steps.

The officer arrested the defendant and at 4:53 p. m. He gave him his rights to counsel, the cautions, the breath demand, searched the defendant and then placed him in the cruiser. [ 14 ] At 4:57 p.m. he left scene heading for the Aurora O.P.P. Detachment and arrived there at 5:16 p.m. The defendant was given further rights to counsel but declined. He was placed in, or near, the cells while the officer waited for the Intoxilyzer device to warm up. He was turned over to the breath technician at 5:44 p.m. and was returned to the Officer Zarrello at 5:16 p.m. [ 15 ] Officer Sean Gilbert was the breath technician.

Filed as Exhibit # 1 is a Certificate of Analysis which shows that the defendant had a blood alcohol limit of 180 milligrams of alcohol in 100 millilitres of blood. [ 16 ] In the alcohol influence report (Exhibit # 2), the officer noted the following signs of impairment: • Face flushed and red; • eyes bloodshot and glassy; • speech was fair; • in co-ordination tests the defendant was swaying, unsteady, swaying back and forth, hesitated and missed a finger to nose test (more than once). • he describes the effects of the alcohol as “obvious”.

Were The Charter Rights of the Defendant breached by the nature of the detention and arrest at the roadside? [ 17 ] The defendant argues that the defendant was stopped by the off duty Metropolitan Toronto Police inspector “arbitrarily” and not under the authority of the powers of police under the Highway Traffic Act . [ 18 ] I disagree with this assessment of the situation. [ 19 ] The inspector was a police officer, and while traffic duty was not part of his present assignment, he has a duty to make an investigation of traffic and other infractions, if they were obvious to him.

In the circumstances of this case, he not only had a right to further investigate a driver whom he felt was driving in a manner that would soon result in an accident. He was under a positive duty to do so. He clearly felt that an investigation of the sobriety of the defendant was warranted based on the actions of the defendant behind the wheel of a car.

While he did not properly state in the stand the authority under the Highway Traffic Act for making this stop, his actions were in furtherance of the authority that he had as a police officer. [ 20 ] I specifically find that the stop was not “arbitrary” but was for an articulable cause. The defendant argued that the officer’s duty would have been satisfied by simply acting as a normal citizen and calling his concerns about the driving to 911. For the reasons I have set out above, I do not think that this officer would be justified in taking that course of action. In any event he did not do

so, and I have found that he had cause in entering upon an investigation of the driving based on the information that he had. [ 21 ] After coming to the conclusion that the defendant was impaired and driving an automobile, the officer decided to direct the defendant to remain in his car, while he contacted the O.P.P. to send an officer to further the investigation and make the arrest.

Even if the defendant was not originally detained, at the time of the initial conversation, (there was evidence that the vehicles were stopped in traffic), he was certainly under detention when the officer directed him to move his vehicle to the shoulder and told him to wait there. [ 22 ] His reasons for doing so are set out above but involve aspects of safety (for the officer and the defendant) and practicality (the officer simply was not equipped to effect an arrest in a proper manner).

In making the decision that he did, the defendant was detained for approximately eight to ten minutes more while they awaited the arrival of the O.P.P. officer. There was then a further delay when the O.P.P. officer arrived and he got the information from Officer Brown and performed his own cursory investigation at the roadside. [ 23 ] The officer did not provide rights to counsel while he waited. He did not make a breath demand. [ 24 ] Regina v.

Suberu , 2009 SCC 33 (CanLII) , 2009 S.C.C. 33 , is recent authority from the Supreme Court of Canada making the need to provide rights to counsel immediately upon detention. However, the court also noted, at paragraph 42 of the judgment: “To allow for a delay between the outset of a detention and the engagement of the police duties under s. 10(

b) creates an ill-defined and unworkable test of the application of the s. 10(

b) right. The right to counsel requires a stable and predictable definition. What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding. An ill-defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police. In our view, the words "without delay" mean "immediately" for the purposes of s. 10( b ).

Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter , the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.” [ 25 ] The officer upon having his grounds to arrest, did not do any further investigation, but simply asked the driver to stay in his car, by the side of the road, while he contacted O.P.P. and they all waited for the O.P.P. officer to arrive.

The defence points out that notwithstanding the lack of an arrest (and assuming the reasons were valid), the officer could have and should have informed the defendant of his rights to counsel, even if he did not have the “official” language handy.

For the ten or so minutes they both waited in their cars, the defendant may have been able to contact counsel and been given appropriate information. [ 26 ] The detention was therefore continuing and in the circumstances I find that such a warning could indeed have been given and the safety concerns of the officer (which I find to be legitimate) would not have been raised. [ 27 ] I therefore find that there was a breach of the provision of the informational defendant’s rights to counsel. [ 28 ] There was also a concurrent delay in the making of the breath demand. Unlike the 254

(2) ASD demand (which was not contemplated here, but must be made “forthwith”), the 254 (3) breath demand must be made “as soon as practicable”. As the officer was not in a position to take any steps to transport the defendant for the purposes of a breath test, I cannot find that he has breached the “as soon as practicable” requirement. I do not find, in all of the circumstances, there was a s. 8 breach . [ 29 ] The defendant also argues that once the arrest was actually made, the officer (O.P.P.

Officer Zarrello) did not have reasonable and probable grounds to arrest for a charge of impaired driving. [ 30 ] The facts and information which were known to the officer at the time of arrest (when the defendant first stepped out of the car) were as follows: • Information from Inspector Brown as to the bad driving of the defendant; • bloodshot and glassy eyes; • an odor of alcohol coming from the defendant when he laughed; and, • the defendant admitted having two pints of beer. -The defendant’s speech was slow and slurred. [ 31 ] In Regina v. Censoni [2001] O.J.

No. 5189 , Justice Hill stated: “43 Reasonable grounds in the context of a s. 254(3) breath demand is not an onerous threshold. It must not be inflated to the context of testing trial evidence. Neither, of course, is it so diluted as to threaten individual freedom. All too often, however, the defendant invites the trial court to engage in minute decisions of the officer's opinion - an opinion developed on the spot without the luxury of judicial reflection. This undoubtedly led McFadyen J.A. in Regina v.

McClelland , supra at 517 to observe: It is neither necessary nor desirable to hold an impaired driving trial as a threshold exercise in determining whether the officer's belief was reasonable. 44 While a particular aspect of a police officer's roadside information, for example, observations of the driver or facts relating to the operator's driving, may deservedly achieve greater prominence in the circumstances of a particular case, it must not be forgotten that reasonable grounds as to impairment to drive is essentially an opinion.

As such, the belief, based on perceived facts, is frequently a compilation of a state of facts that are too subtle and complicated to be narrated separately and distinctly: Grant v. The Queen , supra at 382. It is, accordingly, somewhat antithetical to this understanding that in reviewing whether reasonable grounds objectively existed we compel a police witness to unbundle the facts contributing to the impression of driving impairment. We do so, however, only to the

extent necessary to secure the comfort that the grounds are objectively supported. Sufficiently is never an examination of the articulated facts in isolation. [ 32 ] I find that the officer did have reasonable and probable grounds to arrest the defendant for the charge of impaired driving and make the breath demand upon the defendant. [ 33 ] In conclusion, I find that the defendant has shown on a balance of probabilities that the 10 (

a) Charter rights of the defendant were breached. I find that the defendant has not shown on a balance of probabilities that his rights under s. 8 or 9 have been infringed. Should the results of the Breath Test or any evidence of the officer’s Observations be excluded from evidence pursuant to s. 24 (2) of the Charter ? [ 34 ] As stated in R. v. Grant 2009 SCC 32 (CanLII) , [2009] S.C.J. No. 32 , the Supreme Court of Canada has set out a new 3 prong test for the exclusion of evidence under section 24 (2) of the Charter of Rights and Freedoms. They are as follows : 1.

The seriousness of the Charter infringing state conduct. 2. The impact on the Charter protected interests of the accused. 3.

Societies interest in an adjudication on the merits. [ 35 ] The defendant was detained alone in his car for upwards of thirteen minutes until the O.P.P. officer arrived and after consulting with Inspector Brown and speaking with the defendant, made the arrest and provided the defendant with his rights to counsel. [ 36 ] In light of the reasons, as expressed by Inspector Brown, of the Metropolitan Toronto Police Service, which I feel was reasonable and largely for reasons of safety, I cannot find that the conduct was very serious.

The officer was very forthright about his reasons for not providing the rights to counsel immediately. I find that he did not attempt to make any further observations of the defendant or indeed attempt to illicit any other information (perhaps to the detriment) from the defendant. He ceased his investigation while he contacted the O.P.P. and waited for the O.P.P. officer to arrive. [ 37 ] The impact on the Charter protected interests of the defendant was also minimal. While the evidence obtained (breath samples) were “conscriptive”, that notion has been somewhat superseded by the decision in R. v.

Grant , where the c ourt stated: “On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted.

For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive.” [ 38 ] All criminal cases should be resolved on the merits, but not by sacrificing the Charter rights of the defendant. [ 39 ] Breath sample evidence is reliable, and is contrasted with statements from a defendant were obtained by Charter breaches would be inherently unreliable. Under the new test, the seriousness of the offence may not be an important consideration. The exclusion of the breath test evidence will certainly eviscerate the Crown’s case on the excess alcohol charge.

It will have less effect on the impaired driving charge. [ 40 ] At para. 36 of R. v. Harrison , 2009 SCC 34 (CanLII) , [2009] S.C.J. No. 34 , the court observed: “ The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed .” [ 41 ] The metaphor of a spectrum used in R. v. Kitaitchik (2002), 2002 CanLII 45000 (ON CA) , 166 C.C.C. (3d) 14 (Ont.

C.A.) , per Doherty J.A., may assist in characterizing police conduct for purposes of this s. 24(2) factor: “Police conduct can run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard for Charter rights.... What is important is the proper placement of the police conduct along that fault line, not the legal label attached to the conduct.” [ 42 ] In the circumstances of this case, the officer made decisions which, I believe were based on appropriate principles, and with regard to the safety and the rights of the defendant.

His failure to provide the informational component of the defendant’s s. 10 (

a) rights was at its worst, a case of simple negligence and not a situation where he was showing a blatant disregard for the rights of the defendant. [ 43 ] Applying and balancing the factors as set out in the three part test, I would not be inclined to exclude the evidence under sec 24(2) of the Charter . I find that to exclude the evidence of the breath results would have a detrimental effect upon the administration of justice.

Conclusion Driving with Excess Alcohol [ 44 ] Based on the totality of the evidence (especially Exhibit # 1) I find that the defendant was operating a motor vehicle with excess alcohol. Impaired Driving [ 45 ] The test for impairment is whether there has been proof beyond a reasonable doubt that there was at least some level of impairment of the defendant.

There is no necessity that the level of impairment rise to a marked departure from the norm. [ 46 ] I have set out the evidence of the three officers with regard to their observations of the defendant. [ 47 ] There were no significant contradictions in any of their evidence. [ 48 ] I believe, in its totality, there is proof beyond a reasonable doubt that the defendant displayed some level of impairment. [ 49 ] I find the defendant guilty of impaired driving. Note: The official version of these reasons for judgments is the transcript in the court file.

In the event that there is a question about the content, the original in the court file takes precedence. The reasons may have undergone editing changes.