R. v. Crombie, 2016 ONCJ 422

ONTARIO COURT OF JUSTICE DATE: July 8, 2016 COURT FILE No.: 15-4145 CITATION: R. v. Crombie , 2016 ONCJ 422 BETWEEN: HER MAJESTY THE QUEEN — AND — KALEIGH CROMBIE Before Justice C.M. Harpur Heard on June 1, 2016 Ruling concerning Ms. Crombie’s Application pursuant to Charter ss. 8, 9 and 24(2) released on July 8, 2016 J. Dafoe..................................................................................................... counsel for the Crown S. Menzies.......................................................................................... counsel for the defendant HARPUR J.: Overview [ 1 ] Ms.

Crombie is charged with impaired care or control of a motor vehicle and care or control of a motor vehicle with an excessive blood alcohol concentration on July 18, 2015. Ms. Crombie’s trial was combined with a Charter voire dire. Prior to trial, Ms. Crombie had applied for relief in the form of an exclusion of the certificate of a qualified technician. The basis of the application was that, while the investigating officer possessed a valid basis to suspect that Ms.

Crombie had alcohol in her body and, thus, to demand the provision of a roadside sample pursuant to s.254(2) CC, he did not, objectively, have grounds either to arrest Ms. Crombie or to demand that she accompany him to provide breath samples at the detachment pursuant to s.254(3) CC. The breach alleged is of Ms. Crombie’s s.8 right to be free of unreasonable search and seizure and her s.9 right not to be arbitrarily detained. [ 2 ] Ms. Dafoe for the Crown called only one witness on the trial and Charter voire dire, PC Trevor Crosby, an 18 year veteran with the Barrie Police Service.

At the conclusion of PC Crosby’s evidence, counsel agreed that it would be appropriate for me to proceed with a ruling concerning whether PC Crosby had breached Ms. Crombie’s Charter rights and, if so, whether this is a case in which the sample evidence should be excluded pursuant to s.24(2). Counsel have deferred submissions concerning whether the evidentiary record establishes proof beyond reasonable doubt of impaired operation of a motor vehicle by Ms. Crombie pending my ruling. [ 3 ] For the following reasons, I have concluded that neither PC Crosby’s arrest of Ms.

Crombie nor his issuance of the breath demand pursuant to s.254(3) CC lacked reasonable grounds and, accordingly, that Ms. Crombie’s Charter rights have not been breached. The Evidence at Trial [ 4 ] On July 18, 2015 shortly after 2:00 a.m., Ms. Crombie was operating a Honda Accord and proceeding southbound on Bradford Street in the City of Barrie. The front lights of the Accord were not activated. Ms. Crombie passed PC Crosby who had parked

his marked police cruiser on Bradford Street and activated his four-way flashers. PC Crosby noticed the absence of lights on the car as itwent by and proceeded after it with activated emergency lights. After four to six seconds Ms. Crombie signalled and pulled to a stop. Instopping, she allowed the two passenger side tires to rise onto the curb and came to a stop with the rear passenger tire on the curb. PCCrosby approached the driver’s side of the Accord and spoke to Ms. Crombie. She was smoking a cigarette, taking rapid puffs producinga substantial amount of smoke. [5] The officer asked Ms.

Crombie for her license and for the vehicle’s ownership and insurance slips. Ms. Crombie providedher license. Her eyes appeared to PC Crosby to be red and glossy and she appeared to be nervous. He asked if she had been drinking. Shesaid she had not. PC Crosby repeated his request for the ownership and insurance. Ms. Crombie produced a green sleeve and a blankpiece of paper from the Accord’s glove compartment. The officer asked Ms. Crombie to exit the vehicle which she did. She accompaniedthe officer to the curb. He asked again for the ownership and insurance and she provided to him the blank piece of paper.

When PCCrosby advised Ms. Crombie that the piece of paper did not pertain to insurance or ownership, she provided to him the green sleevewhich contained both of those slips. Ms. Crombie said that the Accord was her mother’s car. She put out her cigarette and exhaled. PCCrosby detected a relatively strong smell of alcohol from her person when she did so. PC Crosby became concerned about Ms.Crombie’s sobriety. He requested that she recite the alphabet. On her first attempt, Ms. Crombie skipped the first four letters of thealphabet and stopped her attempt approximately three quarters of the way through.

She then started again with a poorer result, includingmis-ordering letters and missing letters altogether. PC Crosby then had Ms. Crombie accompany him to the police cruiser. At the cruiserdoor he was only approximately one and one half feet from her and concluded that the smell of alcohol was emanating from Ms.Crombie’s face and breath. The officer told Ms. Crombie that he could smell alcohol and that he did not believe that she had had nothingto drink. She responded that she in fact had had “one beer and one shot” and she said to PC Crosby “please don’t investigate me fordrunk driving”. Ms.

Crombie had not, in her dealings with PC Crosby, slurred her speech or fumbled her documents or shown anyimbalance in exiting her car or in any other manner prior to the arrest. She had been polite and cooperative throughout. Nonetheless, atthis point PC Crosby formed the opinion that Ms. Crombie’s ability to operate a motor vehicle was impaired by her consumption ofalcohol. He arrested her at 2:10 a.m. and issued the s.254(3) CC demand. [6] Ms.

Crombie was taken to the Barrie Police Service detachment where, in due course, she provided suitable samples of herbreath measuring 110 and 100 milligrams percent respectively. The Certificate of a Qualified Technician was admitted as Exhibit 1 attrial subject to Ms. Crombie’s Charter application. Analysis [7] Mr. Menzies for Ms. Crombie does not take issue with Ms. Dafoe’s submission that the law in this area is accurately set outin the decision of the Ontario Court of Appeal in R. v. Bush, 2010 ONCA 554 , [2010] O.J. 3453.

The following paragraphsfrom Justice Durno’s decision in that case are instructive: [46] In the context of a breath demand, the reasonable and probable grounds standard is not an onerous test: see R. v. Wang,[2010] O.J. No. 2490, 2010 ONCA 435 , at para. 17. It must not be inflated to the context of testing trial evidence. Neither mustit be so diluted as to threaten individual freedom: Censoni, at para. 43. [47] There is no necessity that the defendant be in a state of extreme intoxication before the officer has reasonable and probablegrounds to arrest: R. v. Deighan, [1999] O.J.

No. 2413, 45 M.V.R. (3d) 90 (C.A.), at para. 1. Impairment may be established where theprosecution proves any degree of impairment from slight to great: R. v. Stellato (1993), (ON CA), 12 O.R. (3d) 90,[1993] O.J. No. 18 (C.A.), affd (1994), (SCC), 18 O.R. (3d) 800, [1994] 2 S.C.R. 478, [1994] S.C.J. No. 51.

Slightimpairment to drive relates to a reduced ability in some measure to perform a complex motor function, whether impacting on perceptionor field of vision, [page655] reaction or response time, judgment and regard for the rules of the road: Censoni, at para. 47. [55] In assessing whether reasonable and probable grounds existed, trial judges are often improperly asked to engage in adissection of the officer's grounds looking at each in isolation, opinions that were developed at the scene "without the luxury of judicialreflection": Censoni, at para. 43; also Jacques, at para. 23.

However, it is neither necessary nor desirable to conduct an impaired drivingtrial as a threshold exercise in determining whether the officer's belief was reasonable: R. v. McClelland, 1995 ABCA 199 ,[1995] A.J. No. 539, 165 A.R. 332 (C.A.). [page657] [56] An assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent ofan impaired driver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are present and which areabsent as the essential test.

There is no mathematical formula with a certain number of indicia being required before reasonable andprobable grounds objectively existed: Censoni, at para. 46. The absence of some indicia that are often found in impaired drivers does notnecessarily undermine a finding of reasonable and probable grounds based on the observed indicia and available information: R. v.Costello, [2002] O.J. No. 93, 22 M.V.R. (4th) 165 (C.A.), at para. 2; Wang, at para. 21. [60] There is no minimum time period nor mandatory questioning that must occur before an officer can objectively have[page658] reasonable and probable grounds.

There is no requirement that a roadside sample be taken. The ASD provides evidence of theblood alcohol concentration in the suspect's blood, not evidence of impairment. The trial judge correctly found that if the officersubjectively and objectively had reasonable and probable grounds that withstand judicial scrutiny, the failure to invoke the roadsidescreening provisions was irrelevant. If the officer's belief failed to meet the requisite standard, there was a s. 8 Charter violation. [61] A trained police officer is entitled to draw inferences and make deductions drawing on experience.

Here, the investigatingofficer had 18 years' experience. The trial judge was entitled to take into consideration that experience and training in assessing whetherhe objectively had reasonable and probable grounds: Censoni, at paras. 36 and 37… [70] The issue is not whether the officer could have conducted a more thorough investigation. The issue is whether, when theofficer made the breath demand, he subjectively and objectively had reasonable and probable grounds to do so. That the belief wasformed in less than one minute is not determinative.

That an opinion of impairment of the ability to operate a motor vehicle can be made

in under a minute is neither surprising nor unusual. [ 8 ] In Ms. Crombie’s case, PC Crosby stated that he was relying upon Ms.

Crombie’s proceeding to operate a vehicle without lights at night, her delay in stopping for him, her having stopped partially on the curb, her seeming to the officer to be attempting to mask the odor of her breath with vigorous smoking, her failure to produce all of the documents he was seeking in a timely manner, her proffering an obviously irrelevant document in response to his request for documents, the odour of alcohol on her breath, her failure twice to recite the alphabet with any accuracy and the alteration of her story as to whether she had consumed any alcohol.

These circumstances, collectively, are distinguishable from the comparatively few implicating circumstances relied upon by the arresting officer in R. v. Cooper, for example, cited by Ms. Crombie in her casebook at tab four. In Cooper, the officer’s grounds were a strong odour of an alcoholic beverage within Mr. Cooper’s car, a glassy appearance to Mr. Cooper’s eyes and a slur in Mr. Cooper’s speech. The countervailing factors in Mr. Cooper’s case were “absolutely nothing unusual” in Mr. Cooper’s manner of driving although observed by the officer for a considerable distance, and no unsteadiness in Mr.

Cooper’s exit from his vehicle or his walk to the police cruiser. MacDonnell, J. regarded the arresting officer’s grounds as not objectively reasonable. Similarly, in R. v. Outre at tab seven of Ms. Crombie’s casebook Wakefield, J. excluded the sample evidence on the basis of lack of reasonable grounds for the demand on evidence that “indeed the physical indicia of impairment appears minimal outside of the observed driving, and that driving was completed safely while breaking rules of the road”. Ms.

Crombie’s circumstances presented a materially greater array of factors on which a conclusion of impairment could be based. [ 9 ] Ms. Dafoe submits and I accept that PC Crosby engaged in a relatively careful, step by step approach to his assessment of grounds. This is not a case of the arresting officer having rushed to judgement in making his arrest and demand. [ 10 ] Accordingly, I find that the Crown has discharged the onus of establishing grounds for the s.254(3) CC demand and Ms. Crombie’s Charter application is dismissed. Released: July 8, 2016 Signed: “Justice C.M. Harpur” Justice C.M. Harpur, O.C.J.